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6-25
contaminants may be plotted on a three-dimensional grid. In addition to
producing a baseline picture showing principal threat areas and volumes,
this methodology will contribute important information about contaminant
mobility pathways and velocity and about treatability testing requirements.
The RPM should ensure that the PRP provides notice of the planned dates
for field activities at least two weeks in advance. The QAPP/FSP must be
approved before gathering of environmental data begins. During the PRP
conduct of field activities, the RPM should ensure that the PRPs collect
sufficient information at the proper locations and follow OA/QC proce-
dures. The RPM may rely on the oversight assistant to keep accurate
records of site activities, if appropriate. This can be accomplished, in part,
by having die PRP and the oversight assistant use:
• Field activity reports.
• Field logbooks.
• Photographic logs.
Field activity reports may include a checklist to remind the oversight
assistant of die critical elements of die field activities and as a convenient
means of documenting field activities. Field activity reports should be used
in conjunction with the SAP. By combining diese two reporting tools, die
oversight assistant will have a valuable means of keeping track of site-specific
planned activities. These combined reports may also enable the oversight
assistant to keep an accurate record of site activities that are not conducted
according to plans.
Oversight assistants usually maintain activity log books or field log books.
A log book generally includes records of pertinent conversations with either
die PRP or its contractor, a list of potential or actual problems encountered
at the site, an explanation for changes to die work plan, a record of any field
activities not included in die field activity reports, and a description of daily
activities and contacts widi die public or press.
A photographic or video record of field activities also may be a useful tool
for documenting field work for PRPs as well as die oversight assistant. If
one of diese tools is used, die oversight assistant should keep detailed
information about die location, date, time, and subject matter of each
photograph or tape in die field log.
If sampling data is not received widiin a mondi of analysis by die PRPs'
laboratories, the RPM should contact the PRPs to determine die reason for
die delay.
In addition to the progress meetings, reports, technical memoranda, and
data summaries, the required deliverables for die site characterization
process include the preliminary site characterization summary and, once die
baseline risk assessment is complete, the draft RJ report.
The preliminary summary is prepared after die results from sampling are
available. It provides information on contamination at various locations
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6-26 RI/FS Implementation
and depths, including contaminants of concern and associated concentra-
tions. It may include fate and transport projections. It also provides
information for the risk assessment and a reference for the RPMs to ensure
that appropriate alternatives are being developed by the PRPs. The sum-
mary may be used to provide ATSDR with data to use in preparing health
assessments. RPMs should ensure that the data satisfy QA/QC require-
ments and are accurately displayed.
The draft RI report documents data collection and analysis, and supports
theFS.
References
OSWER Directive 9835. l(c), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies,"
Volume 1 (July 7, 1991).
OSWER Directive 9835.l(d), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies,"
Volume 2 (July 7, 1991). (Appendix provides examples of field activity
reports.)
OSWER Directive 9335.0-14, "A Compendium of Superfund Field
Operation Methods" (September 1987).
6.2.C Risk A baseline risk assessment, which may be referred to as an Endangerment
Assessment (EA), is conducted during the RI. The region will use the
11-'. i -11-11 rT-.ii
baseline risk assessment to determine whether, in the absence or an RA, a
particular site poses a substantial danger to public health and welfare, and
the environment. The baseline risk assessment process is cumulative in
nature; the components of the assessment build on one another. There are
two separate inquiries: human health and die environment. The human
health evaluation should address all exposure pathways for each medium of
concern, toxicity values for carcinogenic and non-carcinogenic effects, and
die cancer risk and/or hazard index for each chemical of concern. The
environmental evaluation addresses any critical habitats or endangered
species affected by site contamination.
Depending on the terms of die order or decree, the region may provide
comments on drafts of an intermediate deliverable in diose cases where
orders require major intermediate deliverables for the risk assessment. If,
after providing comments as required and pursuing other recourses as may
be required under die order or decree, regional management finds that die
intermediate deliverable from die PRP remains unacceptable, die region
may decide at diat point to prepare its own risk assessment or to pursue
stipulated penalties if allowed by die AOC or CD. These procedures will
allow EPA to avoid numerous reviews throughout die development of die
risk assessment, which can be cosdy in time and resources.
If die region determines diat die final PRP risk assessment is fully accept-
able, die region should document diis finding in writing and place die
written certification in die AR file. Such an explicit certification by EPA of
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6-27
a PRP risk assessment should help assure the public that EPA is providing
necessary oversight. If the risk assessment delivered by the PRP is unaccept-
able, even after EPA has provided comments or after the parties have
exhausted other procedural requirements (such as dispute resolution) as may
be provided for in the order or decree, EPA will undertake its own risk
assessment or pursue stipulated penalties if allowed by the AOC or CD. If
EPA undertakes the risk assessment because the PRP s is unacceptable, the
Agency may use any part of the PRP's work deemed to be of high quality.
The Risk Assessment Guidance for Superfund (RAGS) Human Health
Evaluation Manual Pan D: Standardized Planning, Reporting, and Review
of Superfund Risk Assessments establishes a process for using spreadsheet
software to develop analytical schemes for risk assessments at Fund-lead,
PRP-lead, Federal Facilities, and RCRA Corrective Action sites. It enables
RPMs and risk assessors to scope and plan risk assessments, formulate
problems, and develop conceptual site models as part of a continuing
relationship that also expands stakeholder involvement. Tables generated by
the software applications serve as the basis for interim deliverables for risk
assessment contractors and form part of the Comprehensive Environmental
Response, Compensation, and Liability Information System 3/Waste Local
Area Network (CERCLIS 3/WasteLAN) data base.
The Agency is currendy drafting supplements to RAGS covering involve-
ment of community stakeholders, land use considerations, establishing
background for risk assessment, using uncertainty/probabilistic analysis, and
standardizing approaches for lead-contaminated sites. The supplement on
community involvement should be finalized during the second quarter of
FY1999 and die others by the end of calendar 1999. The Agency is also
drafting a concise, user-friendly reference document on practices that can
help to increase public participation in risk assessments. This document
should be finalized during the second quarter of FY1999. Once available,
these resources should guide implementation of the RI/FS.
References
Federal Facilities Restoration and Reuse Office Memorandum, "Use of Risk-
Based Methodologies in Setting Priorities for Cleanup Actions at Federal
Facilities" (May 21, 1998).
OSWER Directive 9285.7-0ID, Risk Assessment Guidance for Superfund
(RAGS) Human Health Evaluation Manual Part D: Standardized Planning,
Reporting, and Review of Superfund Risk Assessments (January 1998).
OSWER Directive 9355.0-69, "Rules of Thumb for Superfund Remedy
Selection" (August 1997).
OSWER Directive 9355-0-30, "Role of the Baseline Risk Assessment in
Superfund Remedy Selection" (April 22, 1991).
OSWER Directive 9285.7-01 A, "Risk Assessment Guidance for Superfund:
Volume 1- Human Health Evaluation Manual, Pan A" (December 1991).
OSWER Directive 9285.7-0IB, "Risk Assessment Guidance for Superfund:
Volume 1- Human Health Evaluation Manual, Pan B" (December 1989).
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6-28 RI/FS Implementation
6.2.D Treatability
Investigations
OSWER Directive 9285-5-1A, SuperfundExposure Assessment Manual (April
1989).
OSWER Directive 9285-7-01, "Risk Assessment Guidance for Superfund -
Environmental Evaluation Manual: Volume 2" (March 1989).
Integrated Risk Information System.
Public Health Risk Evaluation Database.
Treatability studies are designed to provide information for EPA to use in
conducting detailed analyses of alternatives. If treatability studies are
deemed appropriate, they should be conducted during the scoping phase as
diey may take over six mondis to complete (e.g., biotreatability studies).
The decision whedier to conduct treatability studies is based on a number
of factors, including: 1) whether a treatment alternative is properly consid-
ered for the site; 2) the nature and size of the site; 3) die nature of the
contaminants and contaminated media; 4) the potential for migration and
possible site risks; 5) information available in technical literature; and 6) the
uncertainties associated with selecting an appropriate site remedy. The final
decision on die type and extent of treatability study to conduct (literature
survey, bench, or pilot) depends on uncertainties of treatment and the
amount of work that should be deferred to the RD process. A literature
survey may suffice when the performance of a technology under consider-
ation has been sufficiendy documented on similar wastes. In diat case, site-
specific information collected during the site characterization may be
adequate to evaluate and cost the technology widiout treatability testing.
Where controversial technologies are under consideration, e.g. incineration,
community involvement can be an important factor in facilitating treatabil-
ity studies.
In addition to progress meetings and reports, the required deliverables for
treatability investigations may include:
• An identification of candidate technologies.
• A literature survey and determination of whether testing is necessary.
• A treatability testing work plan or revisions of die original work plan.
• A treatability study SAP or revisions of the original SAP.
• A treatability study HASP or revisions of the original.
• A treatability study evaluation report summarizing the results,
evaluating the test, and describing the following:
Remedial technology.
Test objectives.
Experimental procedures.
Treatability conditions to be tested.
Analytical methods.
Data management and analysis.
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6-29
6.2.E Development
and Screening
of Alternatives
Health and safety.
Residual waste management.
Following the completion of treatability testing, data should be analyzed
and interpreted, and die results set forth in a technical report to EPA.
Depending on die sequence of activities, this report may be a part of the RI/
FS report or a separate deliverable. The report should evaluate the
technology's effectiveness, implementability, and actual results as compared
to die predicted results. The report should also evaluate full-scale applica-
tion of die technology, including a sensitivity analysis identifying die key
parameters affecting full-scale operation.
During die process of developing alternatives, RPMs should ensure diat die
PRPs undertake die following activities:
• Develop specific RA objectives acceptable to EPA using all RI-
generated data. This is very important as it sets die goals of the FS.
• Develop a range of general response actions.
• Identify areas or volumes of die media to be treated, contained, and/
or subjected to institutional controls.
• Identify, screen, and document technologies.
• Assemble a number of alternatives depending on site type and
characteristics.
• Screen die RA alternatives, if necessary, on die basis of effectiveness,
implementability, and cost.
• Prepare an alternatives array document.
The information produced by die development and screening of alternatives
is used in assembling remedial technologies into alternatives for eidier die
site as a whole or for a specific Operable Unit.
Development of RA alternatives should be conducted in light of die
numerous guidance documents die Agency has produced to assist and
realize cost and time savings in performing RI/FSs. These include general
policy and procedures for conducting RI/FSs at municipal landfills; pre-
sumptive remedies for sites widi volatile organic compounds in soil and
ground water, municipal landfills, and wood treater sites; guidance on soil
screening, characterizing dense non-aqueous phase liquid sites, estimating
risk at lead-contaminated soil sites, technical impracticability waivers at sites
where complete restoration is infeasible, and land use considerations in die
risk assessment and remedy selection processes. These and other resources
are referenced below.
At some sites, a number of potential remedial options may be developed
early in the RT/FS process. In such cases, die RPM should screen alterna-
tives to narrow die list of options diat will be evaluated in detail. The
screening process is useful for two reasons. First, it streamlines die FS
process; second, it ensures diat only die most promising alternatives are
being considered by EPA
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6-30 RI/FS Implementation
RPMs should either closely scrutinize PRP conduct of the screening process
or conduct it themselves. The alternatives development screening docu-
ment, including the alternatives array, must be scrutinized. At this stage,
ARARs should be given specific attention as compliance with ARARs is a
threshold criterion that each alternative must meet in order to be eligible for
selection. RPMs should be wary of PRP proposals that are ineffective
because they treat too little or do not treat to appropriate levels. RPMs
should ensure that regional management has a number of distinct options
and alternatives from which to select an appropriate site remedy.
The information available at the time of screening should be used to
compare the various alternatives. If screening takes place, the technical
memorandum should present the alternatives in such a manner that the
RPM can evaluate each alternative with respect to its effectiveness,
implementability, and cost, and document the rationale for screening out
any alternatives. RPMs should retain only the alternatives that are judged
the best or most promising, while retaining a range of alternatives broad
enough to satisfy the requirements of CERCLA and the NCP. These
alternatives should be subjected to further consideration and analysis.
Alternatives that are screened out will not receive further consideration
unless additional information indicates that further evaluation is warranted.
In the event that there are only a limited number of viable alternatives for a
particular site, the RPM should either minimize or eliminate the alternative
screening process.
References
OSWER Directive 9355-0-69, "Rules of Thumb for Superfund Remedy
Selection," (August 1997).
"Multi-Phase Extraction (MPE) Technology Selection for the VOCs in Soil
and Groundwater Presumptive Remedy," Draft Final (January 1997).
"Landfill Presumptive Remedy Saves Time and Cost," EPA 540-F-96-017.
"Application of the CERCLA Municipal Landfill Presumptive Remedy to
Military Landfills," EPA 540-F-96-020.
"Presumptive Response Strategy and Ex-Situ Treatment Technologies for
Contaminated Ground Water at CERCLA Sites," EPA 540-R-96-023.
"User's Guide to the VOCs in Soils Presumptive Remedies," EPA 540-F-96-
008.
OSWER Directive 9355.4-14FSA, "Quick Reference Fact Sheet" (July
1996).
OSWER Directive 9355.4-23, "Users Guide" (April 1996).
"Soil Screening Guidance: Technical Background Document," EPA 540-R-
95-128.
"Presumptive Remedies for Soils, Sediments, and Sludges at Wood Treater
Sites," EPA540-R-95-128.
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6-31
6.2.F Detailed
Analysis of
Alternatives
"CERCLA Landfill Caps RI/FS Data Collection Guide," EPA 540-F-95-
009.
"Presumptive Remedy for CERCLA Municipal Landfill Sites," EPA 540-F-
93-035-
"Policy and Procedures," EPA 540-F-93-047.
"Site Characterization and Technology Selection for CERCLA Sites With
Volatile Organic Compounds in Soils," EPA 540-F-93-048.
"Technology Selection Guide for Wood Treater Sites," EPA 540-F-93-020.
OSWER Directive 9234.2-25, "Guidance for Evaluating the Technical
Impracticability of Ground Water Restoration" (September 1993).
"Presumptive Remedies for Municipal Landfill Sites," Superfund Acceler-
ated Cleanup Bulletin: Volume 2, Number 1 (February 1993).
"Presumptive Remedies," Superfund Accelerated Cleanup Bulletin (August
1992).
"Presumptive Remedies for Wood Treatment Facilities," Superfund Acceler-
ated Cleanup Bulletin (May 1992).
"Presumptive Remedies for Municipal Landfill Sites," Superfund Accelerated
Cleanup Bulletin: Volume 1, Number 1 (April 1992).
"Conducting RI/FS for CERCLA Municipal Landfills," EPA 540-P-91-
001.
OSWER Directive 9355.3-01, "Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA" Interim Final
(October 1988).
The detailed analysis of alternatives consists of the analysis and presentation
of the relevant information needed to allow decision makers to select a site
remedy. Nine evaluation criteria set forth at NCP section 300.400(e)(9)(iii)
have been developed to address statutory requirements, as well as the
technical and policy considerations diat have proven to be important for
selecting from among the remedial alternatives. These evaluation criteria
serve as die basis for conducting the detailed analyses during die FS and for
subsequently selecting an appropriate site remedy.
A detailed analysis of alternatives consists of the following components: 1)
further definition of each alternative relative to the more limited informa-
tion presented in the screening analysis; 2) an individual assessment and
summary profile of each alternative against the nine evaluation criteria; and
3) a comparative analysis among the alternatives to assess their relative
performance with respect to each evaluation criterion.
The PRPs should submit a technical memorandum summarizing the results
of the detailed analysis. In addition, the PRPs should submit a draft FS
report to the RPM for review and approval. This report, as adopted or
modified by EPA, provides a basis for remedy selection. It documents the
development and analysis of remedial alternatives. Once EPA's comments
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6-32 RI/FS Implementation
have been incorporated to the RPM s satisfaction, the final FS report may
be bound with the final RI report.
Following the PRP's completion of the RI/FS report and the RPMs confir-
mation that there is sufficient information to support the selection of a
preferred alternative, EPA begins the process of remedy selection which is
discussed in Chapter 7, Selection of Remedy.
References
OSWER Directive 9355.0-69, "Rules of Thumb for Superfund Remedy
Selection," (August 1997).
OSWER Directive 9835.l(c), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies,"
Volume 1 Quly7, 1991).
OSWER Directive 9835. l(d), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies,"
Volume 2 (July 7, 1991).
OSWER Directive 9355-3.01FS3, "Feasibility Study - Development and
Screening of Remedial Action Alternatives" (November 1989).
OSWER Directive 9355.3-01, "Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA" Interim Final
(October 1988).
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6-33
6.3
Planning and Reporting Requirements
The RPM should review and update the information in EPA's automated
data systems as events happen. That is, events should be tracked in the
database on a real-time basis. Depending on the region, RPMs are respon-
sible for entering accurate information into CERCLIS 3/WasteLAN or
providing that information to the IMC for entry into CERCLIS 3/
WasteLAN. For example, activities such as RI/FS starts, field work starts,
and draft RI/FS completions must be entered into CERCLIS 3/WasteLAN.
RI/FS events are tracked in the Superfund Comprehensive Accomplish-
ments Plan (SCAP). A matrix of SCAP targets relevant to RI/FS imple-
mentation is presented as Exhibit 6-9.
6-9 SCAP Targets for RI/FS Scoping
Activity
Remedial
Investigation/Feasibility
Study
RI/FS Start (Fund)
RI/FS Start (PRP)
Start of Public Comment
(RI/FS to Public)
RI/FS Comp. ROD
RI/FS Comp. (ROD)
(Fund)
RI/FS Comp. (ROD)
(PRP)
SCAP
Target/Measure
X
X
X
X
X
Quarterly
Target
X
X
Annual
Target
X
X
The following are definitions of the Exhibit 6-9 SCAP activities.
RI/FS Start - The definition of accomplishment for an RI/FS start depends
on the lead.
Fund-Financed - (Includes F and S lead events) A Fund RI/FS start is
counted when funds are obligated. Funds are obligated when the following
have occurred:
• The contract modification for die RI/FS has been signed by die
Contracting Officer.
• An Interagency Agreement (L\G) has been signed by the other
federal agency (USAGE or Bureau of Reclamation).
• Obligations have been recorded or documented in WasteLAN.
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6-34 RI/FS Implementation
PRP-Financed - (Includes RP, MR, and PS lead events) A Responsible
Party (RP or MR)- lead RI/FS start counts when one of die following
enforcement actions occurs:
• An AOC is signed by die Regional Administrator (RA). The RI/FS
start date is die AOC completion date (RA signature date).
• A CD is referred by die region to die Department of Justice (DOJ)
or Headquarters. The RI/FS start date is die last signature date by
the appropriate official or party (RA, DOJ, or Headquarters).
A PS-lead RI/FS start counts when a state order or comparable enforcement
document is signed by die last appropriate official or party, and die site is
covered by one of die following:
• A state enforcement CA.
• A Superfund Memorandum of Agreement (SMOA) containing a
schedule for RI/FS work at die site.
• Another state/EPA agreement.
If a subsequent RI/FS is initiated without a new or amended AOC, CD,
state order, or other comparable state enforcement document, die start date
for the RI/FS is defined as EPA's or die state's approval of die work plan for
die subsequent RI/FS.
If an AOC, state order, or odier comparable state enforcement document is
amended for die subsequent RI/FS, die start date is die date die last official
signs die amendment. If an EPA CD is amended, die start date is die last
signature date by die appropriate official or party.
Federal Facility - The RI/FS start date should coincide with the LAG
effective date. For sites where RI/FS work starts prior to die LAG effective
date, however, the earliest date reportable is die LAG completion date. For
sites where RI/FS work is initiated under a RCRA order or permit, die RI/
FS start date should equal die date when die RCRA order or permit be-
comes effective.
In rare cases, widi Headquarters approval, when die RI/FS has been initi-
ated prior to die LAG completion date and diere has been extensive regional
involvement with die facility, die RI/FS start date can be die receipt of die
RI/FS workplan.
EPA In-House (EP) Lead - An EP-lead RI/FS counts when die region
begins preparation of the work plans following die initial scoping meeting.
Separate Fund-financed, RP-lead and Federal Facilities RI/FS start targets
will be established in SCAP prior to die fiscal year. Targets are established
site-specifically. For RI/FS starts, "To-Be-Determined" sites are allowed.
RI/FS To Public - The RI/FS is released to die public when die contamina-
tion at die site has been characterized and alternatives for remediation have
been evaluated. An RI/FS release to the public is accomplished die date die
proposed plan is made available to die public. This date should be recorded
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6-35
in WasteLAN with the RI/FS event under the SubAction Start of Public
Comment. Accomplishments are based on the first proposed plan released
to the public for each RI/FS regardless of lead. This is a SCAP reporting
measure.
Remedies Selected (ROD) - A remedy is selected at die completion of die
RI/FS. Upon completion of die public comment period on a Fund-
financed or RP-lead RI/FS, a ROD which identifies die Agency's selected
remedy for a site or phase of site cleanup is signed by die Assistant Adminis-
trator for die Office of Solid Waste and Emergency Response (AA OSWER)
or the RA/Deputy RA.
For F, FE, and SE Lead ROD - credit is given on die date die ROD is
signed by die RA/Deputy RA or the AA OSWER.
Upon completion of a Federal Facilities RI/FS, die federal agency selects a
remedy for die site diat is presented in a cleanup Decision Document (DD)
(i.e., ROD, Corrective Action DD). EPA or die state may eidier approve or
concur on die remedy selection or, in die case of a dispute, diey may select
die remedy. For EPA, diis authority has been delegated to die RA or his/her
designee.
For Federal Facilities - credit is given on die date of EPA approval/concur-
rence in die cleanup DD pursuant to an LAG or odier enforceable DD, or
die date of EPA's letter of concurrence.
The RI/FS completion date and die ROD completion date are die same.
This date should be entered in WasteLAN as both die RI/FS and ROD
completions. For specific coding requirements into CERCLIS 3/WasteLAN,
see die SCAP/OIL Quick Reference Coding Guide or your IMC.
Reference
OSWER Directive 9200.3-14-1D, Superfund/OilProgram Implementation
Manual (updated biennially).
SCAP/Oil Quick Reference Coding Guide.
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6-36 RI/FS Implementation
6.4
6.4.A
Dispute
Resolution
6.4.B
Corrective
Measures
Potential Problems/Resolutions
During the course of a PRP-conducted RI/FS, the PRP may encounter
problems, or the RPM may identify unsatisfactory or deficient PRP perfor-
mance. This section discusses some possible solutions to the problems
commonly encountered by RPMs overseeing PRP-conducted RI/FSs.
When disputes arise between the RPM and the PRPs' project manager, the
RPM should attempt to resolve the matter informally. If informal efforts
fail, die RPM should implement formal dispute resolution mechanisms in
accordance widi die AOC after coordination widi regional counsel.
The AO usually will set forth die formal dispute resolution procedures.
This process is generally initiated by a written notice of disapproval by an
appropriate manager widiin die Agency. Generally, die PRP must reach a
negotiated agreement widiin 14 days of receiving die notice. For cases in
which die negotiations fail, EPA will prepare a written record of die
negotiation's outcome. Often die order is structured to require die PRP to
appeal or do die work. This decision can be appealed to die Superfund
program manager, who is die final arbitrator of die dispute. If die PRP fails
to comply widi die decision, die Agency may take one or more of die
following actions:
• Seek stipulated and statutory penalties.
• , Take over die RI/FS and subsequendy recover costs.
• Take odier action (e.g., court order to comply).
The RPM should work closely widi regional management and counsel to
coordinate dispute resolution efforts.
If oversight investigations reveal diat die PRP, or its contractor, is perform-
ing field and laboratory activities in a manner inconsistent widi die work
plan or SAP, die RPM may need to implement corrective measures. For die
most part, informal dispute resolution procedures should be sufficient to
remedy die problem. The RPM can initiate diis process by first talking
widi die PRPs' designated technical coordinator. If diis approach does not
correct die problem, die RPM should dien use die more formal approach of
issuing a notice of deficiency.
To issue a notice of deficiency, RPMs should take die following steps:
• Notify die PRPs in writing.
• Describe die nature of die deficiency.
• Request diat die PRP undertake appropriate corrective action widiin
a specific period.
Failure to respond to a deficiency notice can lead to penalties or EPA
takeover of the RI/FS. The AOC normally will stipulate penalties for
noncompliance, but penalties may also be imposed under CERCLA section
122(1) in accordance widi section 109. Where die Agency requires perfor-
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6-37
mance of the RI/FS pursuant to a section 106 UAO, penalties may be
imposed under section 106(b)(l).
Reference
OECA Memorandum, "Interim Policy on Settlement of CERCLA Section
106(b)(l) Penalty Claims and Section 107(c)(3) Punitive Damages Claims
for Noncompliance with Administrative Orders" (September 30, 1997).
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6-38 RI/FS Implementation
6.5 Activities Checklist
This checklist is not intended to present an exhaustive set of procedures, nor
is it intended to be a chronological list of tasks. RPMs should exercise their
professional discretion when deciding what procedures are appropriate for a
particular site.
PREPARATION AND MANAGEMENT
1) If not previously done, identify the preliminary scope of RI/FS
activity for the site. Establish site-specific objectives. Develop
a general management strategy for site activity. Ensure appro-
priate regional Superfund management review of scoping.
2) Organize regional team and specialists as needed (e.g.,
hydrogeologist, human risk specialist, ecological risk specialist,
and remedial engineer).
3) Procure the services of qualified oversight assistant(s).
4) Coordinate interagency and intergovernmental responsibilities,
including those of the state, ATSDR, and natural resource
trustees.
5) Ensure budgetary support in SCAP.
6) Assess the PRPs' ability to conduct the RI/FS (financial,
technical, managerial).
COMMUNITY RELATIONS PLAN
7) Develop a CIP and define die PRPs' participation, if any.
PROJECT PLANNING
8) Ensure that PRPs have collected and considered available data.
9) Conduct an initiation meeting and site visit with the PRPs.
10) Prior to the PRPs' development of a work plan, SAP, and site
HASP, meet with PRPs and, as appropriate, regional Superfund
management and oversight assistant to assure that PRPs
understand:
a) The objectives of SARA and, for the site, prelimi-
nary remedial action objectives and alternatives.
b) The need for treatabiliry studies.
c) The RI/FS guidance and other guidances.
d) What to include in die plans.
e) The roles and responsibilities.
11) Review die work plan, with in-house specialists and contractor
support.
a) Background information.
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6-39
b) Objectives, preliminary conceptual model.
c) Management plan, including general strategy,
activity schedules, advance notice to EPA of field
activities, reporting and meeting schedules (in-
cluding data reporting), deliverables schedules,
equipment and personnel, data management.
d) Site characterization.
• Field support; preparation.
• Physical characteristics (e.g., geology, hydrol-
ogy); sources of contamination; nature and
extent of contamination; information to be
gathered; methods of gathering information;
extent of field investigation and how it is
determined (include off-site for hydrology,
extent of contamination, etc.); sufficiency for
multiple purposes (e.g., extent, fate and
transport, risk, treatability, delineation of
remedial alternative; methods of data analysis;
information produced and format).
• Assure adequate off-site work (e.g., for
hydrological setting, pathways).
• Supplemental field work.
• Site characterization report, requirements,
data presentation.
e) Risk assessment.
• Federal and state ARARs (approach, primarily
to contaminant-specific and location-specific).
• Human health.
• Approach to contaminant identification;
exposure assessment, use of the Superfund
Exposure Assessment Manual, use of current
and maximum reasonable use scenario
assuming growth; exposure points with path-
ways, media, exposure route, persons exposed
and amount exposed to, fate and transport
models; use of the Integrated Risk Informa-
tion System and other data on toxicity; risk
characterization; deliverables in final report.
• Environmental evaluation.
• Plan, implementation, deliverables, report.
f) Rl report - Content, form, review, response to
EPA's comments, approval.
g) Treatability studies.
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6-40 RI/FS Implementation
• Schedule early start - Candidate technologies,
approach to determining need for testing.
• Work plan contents.
• Implementation.
• Evaluation report.
h) Development and screening of alternatives.
• Development review/approval of RA objec-
tives; contaminant specific ARARs.
• Approach to developing and refining alterna-
tives.
• Approach to screening.
• Methodology for developing and incorporat-
ing action-specific ARARs.
• Deliverables, including alternatives array
document.
• Review/approval.
Detailed analysis.
• Nine criteria and comparative analysis.
• Report on comparative analysis and presenta-
tion.
• Response to EPA's comments.
FS report.
• Content, form, review, response to EPA's
comments.
12) Review the SAP.
a) FSP.
Site background (including an evaluation of
existing data).
Sampling objectives.
DQOs.
Sample media.
Sampling locations and rationale.
Sampling frequency and rationale.
Number of samples and justification.
Number of field blanks, trip blanks, and
duplicates.
Sampling equipment.
Sampling procedures and rationale.
Sampling handling (including chain-of-
custody procedures).
Field analytical procedures.
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6-41
• Decontamination procedures.
• Sample designation.
• Laboratory analytical procedures, equipment,
and detection limits.
• Systematic requirements to fully delineate
each source and the nature and extent of
contamination to DQO levels.
b) QAPP.
• DQOs for measurements. Ensure that soils,
ground water measured to levels consistent
with risk range in NCR
• Sampling procedures.
• Sample custody procedures.
• Calibration procedures and frequency.
• Analytical procedures.
• Data reduction, validation, and reporting
procedures.
• Internal quality control checks and frequency.
• Performance and systems audits and fre-
quency.
• Preventive maintenance procedures and
schedules.
• Data assessment procedures.
• Corrective action procedures.
• QA reporting procedures.
13) Receive the HASP.
14) Draft comments; changes to PRPs' plans.
15) Coordinate with state trustees as necessary.
16) Management review of project plans.
17) Approve/modify plans.
18) Refine oversight plan..
a) Address what is to be done, when, by whom.
b) Assure oversight persons are informed of their
duties and of schedules.
c) Budget resources.
d) Ensure other communications; (e.g., state,
ATSDR, trustee).
e) Anticipate common problems.
19) Open AR at region and near site; add approved plans.
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6-*42 RF/FS Implementation
20) Begin community involvement activities upon approval of
plans.
OVERSEE RI FIELDWORK AND DATA. ANALYSES
21) Meet with EPA team members, specialists, QA/QC person,
and oversight assistant to review work, schedules, roles and
responsibilities.
22) Meet with PRPs' contractor to ensure that they understand
work plan, requirements for notice to EPA, field methodology,
QA/QC at site and in lab (methods, detection limit, etc.).
23) Review PRPs' field support preparation and resources.
24) Develop field check lists.
25) Develop site characterization, source definition, description of
nature and extent of contamination. On an ongoing basis:
a) Assure compliance with work plan and SAP.
b) Oversee schedule, ensure advance notice by PRP
of field work, schedule site inspections, have
oversight assistant review data as developed by
PRPs for sufficiency, review QA/QC trends.
c) Assure adequate locations, types, depths, numbers,
etc. of samples.
d) For ongoing fieldwork, check quality of sampling
and testing.
• Ensure sample splits, spikes, blanks, etc.
• Review QA/QC of loss/analyses.
• Ensure use of proper lab protocols; audit lab,
compare splits, etc.
• Ground water monitoring well construction/
installation.
e) Check quality of ground water elevations and
pump tests in various strata.
f) Check quality of soil sampling (surface/at depths).
g) Check quality of ground water sampling.
h) Check quality of surface water sampling.
i) Check quality of sediment sampling.
j) Review well and other receptor surveys.
k) Review field books, activity logs, etc.
1) Review progress reports.
m) Review data management.
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6-43
n) Hold progress status meetings.
o) Assess whether the data incrementally collected are
sufficient for all purposes (site characterization,
source definition, nature and extent of contamina-
tion, fate and transport, treatability, remedial
alternatives (e.g., bedrock ground water
remediation).
p) Based on available data, direct collection of
additional data (e.g., source contamination to
background, extent of plume to background).
26) Ensure appropriate data provided to ATSDR, state, trustees.
27) Review and comment on site characterization summary; assure
proper and accurate data presentation.
28) Update AR.
29) Ensure adequate oversight activity documentation (cost
documentation).
30) Identify interim actions as necessary.
PERFORM RISK ASSESSMENT
31) Secure qualified contractor.
32) Identify any highly controversial substances that warrant
Headquarters assistance.
33) Identify federal and state contaminant-specific ARARs.
34) Perform human health risk assessment/EA.
a) Review contaminant identification/indicator
chemicals memorandum.
b) Review exposure assessment (exposure scenarios,
exposure assumptions, population at risk, fate and
transport model, etc.).
c) Review toxicity assessment (sources, application).
d) Review human health risk characterization.
35) Perform environmental evaluation.
a) Review environmental evaluation plan; discuss
with trustees.
b) Review environmental evaluation report; discuss
with trustees.
36) Obtain/review ATSDR health assessment; state views.
37) Ensure appropriate EPA management review.
38) Comment on/finalize risk assessment; gather additional data as
needed.
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6-44 RI/FS Implementation
REMEDIAL INVESTIGATION REPORT
39) Copy to state, trustees, ATSDR, as appropriate.
40) Develop preliminary comments.
41) Ensure appropriate EPA managerial review.
42) Produce final comments.
43) Review and modify/approve interim RI report (possible
additional work may be identified in FS).
44) Update AR.
45) Release fact sheets and hold public meetings as necessary.
TREATABILITY TESTING
46) Identify the need for treatability testing. If testing is done:
a) Obtain specialized support, as necessary.
b) Discuss requirements with PRPs.
c) Review/modify/approve proposal on need for
literature search vs. testing.
d) Review PRPs' work plan/SAP.
e) Review PRPs' report.
f) Require, if necessary, additional testing.
DEVELOPMENT AND SCREENING OF ALTERNATIVES
47) Meet with PRPs to discuss RA objectives, alternative develop-
ment and screening, detailed analysis, SARA-compliant
remedies.
48) Review, modify, and possibly approve RA objectives submitted
by PRPs.
49) Review work/report by PRPs, identifying potential technolo-
gies for areas of media, evaluation of process types.
50) Review range of alternatives developed by PRPs; focus on
effective remedies, preference for treatment.
51) Advise state of alternatives.
52) Review the document submitted by PRPs on alternatives
passing the screen, including alternatives array summary with
associated ARARs and description of underlying work.
53) Confer widi state.
54) Submit comments, ensuring that appropriate alternatives
passed die screen, and proper identification and attorney
review of ARARs, particularly action-specific ARARs. If PRPs
continue to lean improperly toward no-action, ineffective, low-
cost remedies, schedule a meeting. Consider enforcement and
EPA takeover.
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6-45
55) Finalize approved identification of acceptable group of rem-
edies that should be considered in the detailed analysis.
56) Assure updated AR.
57) Review die comparative analysis document prepared by PRPs
(unless EPA reserved this).
58) Assure diat, to the extent possible, state, trustees' views are
known.
DETAILED ANALYSIS
59) Meet with PRPs.
60) Provide comments, direction to PRPs for FS.
61) Ensure updated AR.
FEASIBILITY STUDY
62) Facilitate attorney review of ARARs.
63) Circulate PRP draft FS to state, trustees, intra-EPA groups.
64) Develop preliminary comments.
65) Ensure internal EPA and management review, discuss proposed
plan.
66) Finalize comments.
67) Ensure development of an FS diat supports proposed plan.
68) Update AR.
69) Prepare oversight/response cost billing.
70) Prepare for RD/RA negotiations.
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7. Selection of Remedy
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7-i
Chapter 7 Selection of Remedy
7.1 Description of Activity 1
7.1.A Introduction 1
7.1.B Overview 1
7.1.C Statutory Authority 1
7.1.D Responsibilities 3
7.1.E Evaluation Criteria for Comparing Alternatives 4
7.1.E.1 Threshold Criteria 4
7.1.E.2 Primary Balancing Criteria 6
7.1.E.3 Modifying Criteria 7
7.1.F Promotion of Appropriate National Consistency 8
7.1.G Innovative Technologies 9
7.1.H ROD Delegation, Consultations, and Briefings 9
7.2 Procedures and Interactions 10
7.2.A Review of RI/FS 10
7.2.B Preparation of Proposed Plan 11
7.2.B.1 Format of Proposed Plan 12
7.2.B.2 Contents of Proposed Plan 12
7.2.C State/Federal and Public Input on Preferred Alternative 13
7.2.D Public Input on Remedial Alternatives 14
7.2.D.1 Public Notice 14
7.2.D.2 Public Meeting 14
7.2.D.3 Public Comment Period 14
7.2.D.4 Administrative Record 15
7.2.D.5 PRP Participation 15
7.2.E Preparation for RD/RA Negotiations 16
7.2.F Final Selection of Preferred Alternative 16
7.2.G Preparation of Draft ROD 18
7.2.G.1 Components of ROD 18
7.2.G.1.A Declaration 19
7.2.G.1.B Decision Summary 19
7.2.G.1.C Responsiveness Summary 19
7.2.G.2 Changes from the Proposed Plan to the ROD 20
7.2.H State/Federal Consultation on Selected Remedy 20
7.2.1 Concurrence 21
7.2.J Briefing and Signature 22
7.2.K Notice 22
7.2.L Post-ROD Changes 22
7.3 Planning and Reporting Requirements 23
7.3.A Reporting Requirements 23
7.3.A.1 Submission of Documents 23
7.3.A.2 Information Databases 23
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7—it Selection of Remedy
7.3.A.3 Implications of Submissions 23
7.3.B Planning Requirements 23
7.3.C Contractor Participation 23
7.4 Potential Problems/Resolutions 25
7.4.A PRPs' RI/FS Suggests Preferred Remedy 25
7.4.B Extensive Public Comment 25
7.4.C Disputes over ROD 25
7.5 Activities Checklist 27
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7-1
Chapter 7 Selection of Remedy
7.1
7.1.A Introduction
7.1.B
Overview
7.1.C
Description of Activity
This chapter provides a general discussion of the process used by federal
agencies to select a final Remedial Action (RA) from among the options that
undergo detailed analysis in the Remedial Investigation/Feasibility Study
(RI/FS). See Exhibit 7-1 for a representation of the elements diat make up
the remedy selection process. For more detailed information on the remedy
selection process, consult the National Contingency Plan (NCP), "Guidance
on Preparing Superfund Decision Documents," and other documents
referenced at the end of each section.
Reference
National Oil and Hazardous Substance Pollution Contingency Plan (NCP),
40 Code of Federal Regulations (CFR) section 300.430 ("Remedial
Investigation/Feasibility Study and Selection of Remedy") (1990).
EPA has established the remedy selection process to fulfill the mandates of
section 121 of the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). Substantively, the remedy selection process
involves an objective assessment of alternative approaches for remediating
problems at sites against nine evaluation criteria that encompass statutory
requirements and a risk management decision as to which option provides
the most appropriate solution for a site. Procedurally, the selection of a
CERCLA RA from among alternatives is a two-step process. First, the lead
agency, in conjunction with the support agency, reviews the analysis in the
RI/FS and the Administrative Record (AR) to identify a preferred
alternative. This preferred alternative is presented to the public in a
Proposed Plan, which includes the supporting information and analysis, for
review and comment. Second, the lead agency reviews the public
comments, consults with the support agency to evaluate whether the
preferred alternative is still the most appropriate RA for die site or site
problem, and makes a decision.
Statutory Section 121 of CERCLA and die NCP require that die chosen remedy meet
AuthoritV certain standards. The lead agency must select a remedy that:
• Is protective of human healdi and the environment.
• Attains Applicable or Relevant and Appropriate Requirements
(ARARs), or provides grounds for invoking a waiver of ARARs.
• Is cost-effective.
• Utilizes permanent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent practicable.
• Addresses the preference for remedies that employ treatments diat
permanently and significantly reduce die volume, toxicity, or mobil-
ity of die hazardous substances, pollutants, or contaminants as a
principal element.
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7-2 Selection of Remedy
7-1 Selection of Remedy Overview of Decision-Making Process
STAGE 1:
Selection of
Preferred Alternative
STAGE 2:
Final Selection of
Remedial Alternative
V
V
'
t
Lead and support agencies review RI/FS •
and Administrative Record •
Lead agency analyzes alternatives •
using the nine criteria •
Lead agency prepares draft Proposed Plan •
identifying preferred alternative 1
States, other federal agencies, HQ, and program •
offices review Proposed Plan •
Lead agency issues final
Proposed Plan for public comment
Public provides input on remedial alternative
through formal public comment period, advanced
by community involvement activities
Lead agency reevaluates alternatives on basis
of comments from public and new information
Lead agency prepares draft ROD
Lead agency gives support agency
opportunity to concur on selected remedy
Lead agency finalizes and coordinates
signing of ROD for a remedy acceptable to EPA
Lead agency provides notice of the
final remedial action plan
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7-3
Remedies must be consistent with the requirements of the NCR The NCP
(40 CFR 300.430 (i)) specifies nine evaluation criteria to be used in
comparing remedial alternatives. See Chapter 6, RI/FS Implementation for
a discussion of the nine evaluation criteria.
The NCP establishes additional procedures for the remedy selection process.
The process must include an opportunity for substantial and meaningful
involvement of state and tribal officials. The lead agency must comply with
public involvement requirements by allowing the public to comment and
submit information on the remedy for inclusion in die AR (see section
300.800 of the NCP), and must document its decision in an AR that is
accessible to the public. EPA must notify Potentially Responsible Parties
(PRPs), state personnel, and natural resource trustees about negotiations for
implementation of the remedy.
References
"Rules of Thumb for Superfund Remedy Selection," EPA 540-R-97-013.
NCP, 40 CFR section 300.430 ("Remedial Investigation/Feasibility Study
and Selection of Remedy") (1990).
NCP, 40 CFR section 300.800 ("Establishment of an Administrative
Record") (1990).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989) (comprehensive update
anticipated in FY99).
7.1 .D R6SpOnsibiliti6S Federal and state agencies conduct remedy selection activities as cooperative
efforts. Section 121 (a) of CERCLA states that the President (EPA) shall
select appropriate RAs. EPA and the state agencies decide on a case-by-case
basis which agency will become the lead agency. In some states, an
agreement between the agencies, such as a Superfund Memorandum of
Agreement (SMOA) or Cooperative Agreement (CA), embodies this
decision (for more information on the EPA/state partnership, see Chapter
14, State Involvement in CERCLA Enforcement). In addition to
designating itself or another agency as die lead agency for a site, EPA
generally delegates lead responsibilities from Headquarters to the regions.
Regardless of whether die state is designated lead agency, EPA retains final
remedy selection authority for all Fund-lead actions and the audiority to
concur in all enforcement actions taken under CERCLA sections 106 and
122 and all Federal Facilities RAs at NPL sites under CERCLA section 120.
In general, the remedy selection process is the responsibility of the
government agencies involved at the site. Contractors and PRPs, however,
may participate in particular aspects of die process.
States, tribes, and community stakeholders have had an increasing role in
die remedy selection process. A Superfund Administrative Reforms pilot
program allows selected states or tribes to conduct die remedy selection
process, consistent widi applicable law and regulations, widi minimal EPA
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7-4 Selection of Remedy
7.1.E
Evaluation
Criteria for
Comparing
Alternatives
7.1.E.1
Threshold
Criteria
oversight or involvement. The NCP (section 300.515 (e)(2)(ii)) requires
that EPA still concur with the final ROD. Communities can also become
more involved in the remedy selection process by participating in a
Superfund Administrative Reforms pilot program that uses consensus-based
approaches to empower local citizens in achieving remedies that satisfy the
community while still meeting statutory and regulatory requirements.
References
"Rules of Thumb for Superfund Remedy Selection," EPA 540-R-97-013-
OSWER Directive 9355-7-04, "Land Use in the CERCLA Remedy
Selection Process" (May 1995).
NCP, 40 CFR section 300.430 ("Remedial Investigation/Feasibility Study
and Selection of Remedy") (1990).
NCP, 40 CFR section 300.515 ("Requirements for State Involvement in
Remedial and Enforcement Response") (1990).
OSWER Directive 9355.0-27FS, "A Guide to Selecting Superfund
Remedial Actions" (April 1990).
OSWER Directive 9234.2-05FS, "CERCLA Compliance with Other Laws
Manual-CERCLA Compliance with State Requirements" (December 1989).
OSWER Directive 9355-3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents: The Proposed Plan and Record of
Decision." (July 1989) (comprehensive update anticipated in FY99).
EPA has structured a risk management decision-making process designed to
satisfy the numerous requirements of CERCLA. This process involves the
assessment of alternative hazardous waste management approaches and a
comparison of these approaches using nine evaluation criteria. The remedy
is selected by applying the criteria to identify the most protective solution
which meets, or with appropriate justification, waives ARARs for a given
site. The nine evaluation criteria are used to develop the RI/FS detailed
analysis, which forms the basis for the remedy decision. The evaluation
criteria are categorized into diree groups: threshold, primary balancing, and
modifying criteria. The definition and application of each type of criteria is
presented below.
The two threshold criteria diat must be satisfied in order for an alternative
to be eligible for selection are the following:
• Overall protection of human health and the environment -
Protectiveness is the primary requirement that CERCLA RAs must
meet. A remedy is protective if it adequately eliminates, reduces, or
controls unacceptable risks posed by hazardous substances, pollut-
ants, or contaminants in both die short and long terms. A site at
which, after die remedy is implemented, hazardous substances
remain widiout engineering or institutional controls must allow for
unrestricted use and unlimited exposure for human and environmen-
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7-5
tal receptors. For those sites where hazardous substances remain such
that unrestricted use and unlimited exposure is not allowable,
engineering controls, institutional controls, or a combination of the
two must be implemented to control exposure and thereby ensure
reliable protection over time. In addition, implementation of a
remedy must not result in unacceptable short-term risks to or cross-
media impacts on human health and the environment.
• Compliance with ARARs - On-site remedies must attain or justify
waiver of ARARs. Alternatives are developed and refined throughout
the selection process to ensure that they will meet all of their respec-
tive ARARs, or the lead agency must be able to provide grounds for
invoking statutorily established waivers. During the detailed analy-
sis, information on federal and state action-specific ARARs is
assembled along with previously identified chemical-specific and
location-specific ARARs. The state should be asked to provide a list
of statutory and regulatory alternatives diat should be ARARs for the
remedial alternatives. Alternatives will be refined to ensure compli-
ance with diese requirements, or waivers that might be invoked will
be identified by the lead agency.
References
OSWER Directive 9347.3-08FS, "Superfund LDR Guide #8: Compliance
with Third Third Requirements Under the LDRs" (October 1990).
OSWER Directive 9347.3-1 IPS, "Superfund LDR Guide #11: CERCLA
Compliance with die RCRA Toxicity Characteristics (TC) Rule: Part II"
(October 1990).
OSWER Directive 9347.3-09FS, "A Guide to Delisting of RCRA Wastes
for Superfund Remedial Responses" (September 1990).
OSWER Directive 9347.3-06FS, "Superfund LDR Guide #6A: Obtaining
a Soil and Debris Treatability Variance for Remedial Actions" (second
edition) (September 1990).
OSWER Directive 9347.3-06BFS, "Superfund LDR Guide #6B: Obtaining
a Soil and Debris Treatability Variance for Removal Actions" (September
1990).
OSWER Directive 9234.2-08FS, "ARARs Qs and As. Compliance with
the Toxicity Characteristics Rule: Part I" (May 1990).
OSWER Directive 9234.2-07FS, "CERCLA Compliance with Other Laws
Manual - Summary and Part II: CAA, TSCA, and Other Statutes" (April
1990).
OSWER Directive 9234.3-001, "ARARs Short Guidance Quarterly Report"
(December 1989).
OSWER Directive 9234.2-03FS, "Overview of ARARs: Focus on ARAR
Waivers" (December 1989)
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7-6 Selection of Remedy
OSWER Directive 9347.3-07FS, "Superfund LDR Guide #7: Determining
When Land Disposal Restrictions (LDRs) Are Relevant and Appropriate to
CERCLA Response Actions" (December 1989).
OSWER Directive 9234.2-04FS, "RCRA ARARs: Focus on Closure
Requirements" (October 1989).
OSWER Directive 9347.3-01FS, "Superfund LDR Guide #1: Overview of
RCRA Land Disposal Restrictions (LDRs)" (July 1989).
OSWER Directive 9347.3-02FS, "Superfund LDR Guide #2: Complying
With the California List Restrictions Under Land Disposal Restrictions
(LDRs)" (July 1989).
OSWER Directive 9347.3-03FS, "Superfund LDR Guide #3: Treatment
Standards and Minimum Technology Requirements Under Land Disposal
Restrictions (LDRs)" (July 1989).
OSWER Directive 9347.3-05FS, "Superfund LDR Guide #5: Determining
When Land Disposal Restrictions (LDRs) Are Applicable to CERCLA
Response Actions" (July 1989).
OSWER Directive 9234.1-01, "CERCLA Compliance with Other Laws
Manual" (August 1988).
OSWER Directive 9347.3-10FS, "Superfund LDR Guide #10: Guide to
Obtaining No Migration Variances for CERCLA Remedial Actions"
(undated).
7.1 .E.2 Primary Once it has been determined that the alternatives meet the threshold
Balancing criteria, five primary balancing criteria are used to weigh major trade-offs
Criteria among the different hazardous waste management strategies. The five
balancing criteria are:
• Long-term effectiveness and permanence - This criterion reflects
CERCLA's emphasis on implementing remedies that will ensure
protection of human health and the environment in the future as
well as in the near term. In evaluating alternatives for the degree of
long-term effectiveness and permanence they afford, the analysis
should focus on the residual risks that will remain at the site after
completion of the RA. This analysis should include consideration of
the following: the degree of risk posed by the hazardous substances
remaining at the site, the adequacy and reliability of any controls
(e.g., engineering and institutional controls) used to manage the
hazardous substances remaining at the site, and the potential impacts
on human health and the environment (based on assumptions
included in the reasonable maximum exposure scenario) should the
remedy fail. This evaluation criterion takes into account the follow-
ing: the uncertainties associated with land disposal; the goals,
objectives, and requirements of die Resource Conservation and
Recovery Act (RCRA); the persistence, toxicity, mobility, and
propensity to bioaccumulate of the hazardous substances and their
-------
7-7
constituents; the long-term potential for adverse health effects from
human exposure; and threats to the environment associated with
redisposal or containment of the hazardous substances.
• Short-term effectiveness - This criterion includes the short-term
impacts of the alternatives (e.g., impacts during implementation) on
the neighboring community, workers, or the surrounding environ-
ment, including the potential direats to human health and the
environment associated with excavation, treatment, and transporta-
tion of hazardous substances. The potential cross-media impacts of
the remedy during implementation and the time needed to achieve
protection of human health and the environment should be analyzed
as well.
• Reduction of toxicity, mobility, or volume through treatment-
This criterion ensures that the relative performance of die different
alternatives in reducing toxicity, mobility, or volume through treat-
ment will be assessed, addressing the statutory performance require-
ments for remedies diat employ treatment as a principal element.
The reduction of the inherent hazards posed by the principal threats
at the site should also be considered. Specifically, the analysis should
examine the magnitude, significance, and irreversibility of reduc-
tions.
• Implementability - Implementability considerations include the
technical and administrative feasibility of the alternatives, and the
availability of the goods and services (e.g., treatment, storage, or
disposal capacity) on which the viability of the alternative depends.
Implementability considerations often affect die timing of various
remedial alternatives (e.g., limitations on die season in which die
remedy can be implemented, the number and complexity of materi-
als-handling steps that must be followed, the need to obtain permits
for off-site activities, and the need to secure technical services such as
well drilling and excavation).
• Cost - Costs assessed include direct and indirect capital costs, annual
Operation and Maintenance (O&M) costs, and the net present value
of capital and O&M costs.
References
"The Role of Cost in die Superfund Remedy Selection Process," EPA 540-
F-96-018.
OSWER Directive 9355-7-04, "Land Use in the CERCLA Remedy
Selection Process" (May 1995).
7.1 .E.3 Modifying Modifying criteria are considered throughout the remedy selection process,
Criteria but are folly considered after public comment. The following are die two
modifying criteria:
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7-5 Selection of Remedy
7.1.P Promotion of
Appropriate
National
Consistency
• State acceptance - This criterion, which is a concern throughout the
remedial process, reflects the statutory requirement to provide
substantial and meaningful state involvement. Communication with
the state throughout the RI/FS will help to avoid problems at the
time of the Proposed Plan or ROD. State comments may be ad-
dressed during the development of the FS, as appropriate, although
formal state comments usually are not received until after the state
has reviewed the draft RI/FS and Proposed Plan prior to the public
comment period. The Proposed Plan that is issued for public
comment along with the RI/FS report should indicate either that the
state has commented on or concurred with EPAs preferred alterna-
tive, or that state comments have not been received. The ROD
should specifically address state concurrence or nonconcurrence with
the response action that is selected, particularly noting state views on
compliance or noncompliance with state ARARs.
• Community acceptance - This criterion refers to the community's
comments (community is broadly defined to include all interested
parties) on the remedial alternatives under consideration. These
comments are taken into account throughout the RI/FS process
through the communications that occur as the Community Involve-
ment Plan (CIP) is implemented. In most cases, EPA can only
preliminarily assess community acceptance during the development
of the FS, since formal public comment will not be received until
after the public comment period for the Proposed Plan and the RI/
FS is held. The detailed analysis, however, may summarize prelimi-
nary comments on components of the alternatives received up to
that point.
To promote appropriate national consistency, a series of administrative
reforms have been enacted. The creation of the National Remedy Review
Board (NRRB) brings together expertise to review and make
recommendations on remedies that exceed specific cost criteria. The
NRRB s goals are to promote national consistency in remedy selection and
cost-effectiveness. In addition, EPA developed guidance describing the key
principles and expectations, interspersed with "best practices" based on
program experience that should be consulted during the Superfund remedy
selection process. The purpose of the "Rules of Thumb for Superfund
Remedy Selection" guidance is to assist Regional Project Managers (RPMs)
and other program implementers in applying remedy selection principles in
an appropriately consistent manner.
References
OSWER Directive 9200.0.21, "National Consistency in Superfund Remedy
Selection."
OSWER Directive 9220.0-26, "National Remedy Review Board, Progress
Report: Fiscal Year 1997" (February 1998).
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7-9
7.1.G Innovative
Technologies
7.1.H ROD
Delegation,
Consultations,
and Briefings
"Rules of Thumb for Superfund Remedy Selection," EPA 540-R-97-013.
OSWER Directive 9200.1-18FS, "Consolidated Guide to Consultation
Procedutes for Superfund Response Decisions" (May 14, 1997).
OSWER Directive 9220.0-24, "National Remedy Review Board, Progress
Report: Fiscal Year 1996" (January 1997).
New and innovative technologies may be implemented at a site when there
is potential for the developing technology to produce comparable or
superior results or implementability, fewer or less adverse impacts than other
approaches, or lower costs for the same level of performance. To encourage
these technologies, EPA has expanded indemnification coverage to include
both die prime contractor and the innovative technology contractor. The
cost of a failed response action will be shared in an amount equal to 50
percent of the estimated cost of the failed innovative response action, 50
percent of the actually incurred cost of the failed innovative response action,
or $ 10 million, whichever is less.
References
"Guidance on Innovative Technology Risk Sharing," EPA 542-B-98-005.
NCP, 40 CFR section 300.430 ("Remedial Investigation/Feasibility Study
and Selection of Remedy") (1990). ;
In general, Headquarters has delegated the authority to sign RODs to the
Regional Administrator (RA). In some circumstances, consultation widi
Headquarters or cross-regional review groups is required, and extra time
should be built into the decision-making process to allow for review and
comment resolution. A comprehensive fact sheet has been developed to
summarize these consultation requirements.
Reference
OSWER Directive 9200.1-18FS, "Consolidated Guide to Consultation
Procedures for Superfund Response Decisions" (May 14, 1997).
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7-10 Selection of Remedy
7.2
7.2.A
Review
of RI/FS
Procedures and Interactions
This section discusses the steps in the decision-making process required to
fulfill the mandates of the NCR
The RI/FS provides the decision maker with an assessment of the extent
and nature of the contamination at the site or of an Operable Unit (OU) of
the site, an assessment of current and potential risks posed by the site or OU
to human health and the environment, a description of alternative remedies,
and a comparison of alternatives based on the nine criteria. In addition, the
RI/FS identifies the performance levels each alternative is expected to attain
to ensure protection of human health and the environment. The lead
agency must confirm that there is sufficient information to support die
selection of a preferred alternative when reviewing the RI/FS data, and
should require further study if the information is insufficient. While PRPs
may be involved in the RI/FS process, they are not die decision makers in
selecting a remedy under CERCLA. The lead agency must select the
preferred alternative and the ultimate remedy (see the discussion in section
4 of this chapter, "Potential Problems/Resolutions").
EPA's RPM should ensure that proper Remedial Action Objectives are
chosen and diat die proper alternatives pass the screening. Because EPA is
required to sign off on any Fund-financed remedy, the RPM should take an
active role even at state-lead sites.
For sites where lead is present, the Technical Review Workgroup (TRW),
consisting of experts in lead toxicity and exposure assessment, is available for
information and advice on a wide range of lead-related issues. The TRW
must also be consulted when die Integrated Exposure Uptake Bio-Kinetic
model or odier models are employed.
Before completing die RI/FS report, the RPM should consult with the state
in examining the findings of the comparative analysis. EPA then makes a
preliminary determination of die preferred alternative.
References
Administrative Reforms, Round 3, Reform 6C, "Utilize Expert Workgroup
on Lead."
"Rules of Thumb for Superfund Remedy Selection," EPA 540-R-97-013.
OSWER Directive 9200.1-18FS, "Consolidated Guide to Consultation
Procedures for Superfund Response Decisions" (May 14, 1997).
OSWER Directive 9355.4-23, "Soil-Screening Guidance: User's Guide"
(April 1996).
OSWER Directive 9835. l(c), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies," Volume
7, 1991).
OSWER Directive 9835. l(d), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies," Volume
2 (July 7, 1991).
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7-11
7.2.B Preparation
of Proposed
Plan
OSWER Directive 9355.3-1 IPS, "Streamlining the RI/FS for CERCLA
Municipal Landfill Sites" (September 1990).
OSWER Directive 9285.7-05FS, "Guidance for Data Usability in Risk
Assessment" (September 1990).
OSWER Directive 9355.0-27FS, "A Guide to Selecting Superfund
Remedial Actions" (April 1990).
OSWER Directive 9255-3-01FS4, "Feasibility Study - Detailed Analysis of
Remedial Action Alternatives" (March 1990).
OSWER Directive 9380.3-02FS, "Treatability Studies Under CERCLA: An
Overview" (December 1989).
OSWER Directive 9285.7-01 A, "Risk Assessment Guidance for Superfund:
Volume 1 - Human Health Evaluation Manual (Part A)" (December 1989).
OSWER Directive 9285.7-0IB, "Risk Assessment Guidance for Superfund:
Volume 1 - Human Health Evaluation Manual (Part B)" (December 1989).
OSWER Directive 9285-7-OlC, "Risk Assessment Guidance for Superfund:
Volume 1 - Human Health Evaluation Manual (Part C)" (December 1989).
OSWER Directive 9355.3-01FS1, "Getting Ready: Scoping the RI/FS"
(November 1989).
OSWER Directive 9355.3-01 FS2, "Remedial Investigation - Site
Characterization and Treatability Studies" (November 1989).
OSWER Directive 9355.3-01FS3, "Feasibility Study - Development and
Screening of Remedial Action Alternatives" (November 1989).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (July 1989) (comprehensive update
anticipated in FY99).
OSWER Directive 9355.3-06, "RI/FS Improvements: Phase II Streamlining
Recommendations" (January 1989).
OSWER Directive 9335.3-01, "Guidance for Conducting Remedial
Investigations and Feasibility Studies" Interim Final (October 1988).
OSWER Directive 9835.1 A, "Interim Guidance on PRP Participation in
the RI/FS Process" (May 16, 1988).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange" (October 19, 1987).
Section 300.430 (0(2) of the NCP requires die lead agency to issue a
Proposed Plan that identifies its preferred remedial alternative. The
Proposed Plan highlights information about the site, remedial alternatives
evaluated in the RI/FS report, and the preferred alternative. It also describes
opportunities for public input and requests comments from the community
on each of die remedial options.
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7-12 Selection of Remedy
7.2.B.1
Format of
Proposed Plan
7.2.B.2
Contents
of Proposed
Plan
References
OSWER Directive 9335-3-02FS-2, "A Guide to Developing Superfund
Proposed Plans" (November 1989).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989) (comprehensive update
anticipated in FY99).
The lead agency may issue the Proposed Plan in a fact sheet format. If,
however, the Proposed Plan presents complicated remedial options or
involves a site that has sparked public controversy, the lead agency may
consider issuing the plan in an expanded format. In eidier case, the agency
should write it in a style that is informative and readily understandable by
die public. It may be helpful to have the Community Involvement
Coordinator review the format of the plan before it is issued. The plan
must retain enough detail so that die problem to be addressed at the site
and die options for solving it are clearly identified.
The Proposed Plan should address the following topics:
• Statement of document's purpose.
Describes functions of plan.
Directs public to RI/FS.
Solicits input on all alternatives.
• Site background.
Gives physical description.
Explains site remedial, enforcement, and operational history.
Identifies lead and support agencies.
• Role and scope of OU or response action.
• Summary of site risks.
Identifies chemicals of concern.
Identifies exposure scenarios.
Summarizes current and potential site risks.
• Summary of alternatives.
Describes alternatives evaluated in detail, including cost and
implementation time and whether ARARs will be met or
waived.
• The preferred alternative and evaluation of alternatives.
Identifies preferred alternative.
Lists evaluation criteria.
Profiles performance of preferred alternatives against evaluation
criteria; highlights trade-offs with respect to other options.
Describes and gives justification for any ARARs waivers.
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7-13
7.2.C State/Federal
and
Public Input
on Preferred
Alternative
Describes means of implementing institutional controls.
Indicates preliminary determination of compliance with statu-
tory requisites.
• Community involvement.
Identifies locations, times, and dates of comment periods and
public meetings.
Identifies location(s) of AR.
Lists names and numbers of government contacts.
States whether special notice was issued.
References
OSWER Directive 9335-3-02FS-2, "A Guide to Developing Superfund
Proposed Plans" (November 1989).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989) (comprehensive update
anticipated in FY99).
The following is a general discussion of the process for coordinating federal,
state, public, and PRP input on the remedial alternatives and preferred
option described in the Proposed Plan.
When EPA selects a preferred alternative at a PRP-lead site, an opportunity
for review and comment on all alternatives should be provided to
Headquarters program offices and other federal agencies prior to the release
of the Proposed Plan for public comment. If the preferred alternative costs
more than $30 million, or if the action costs more than $10 million and
this cost is 50 percent greater than that of the least costly, protective cleanup
alternative, then the NRRB will review the proposed cleanup decision. The
RPM should also seek substantial input from the state and state agencies.
Early state involvement improves the Superfund program's ability to
facilitate concurrence on the selected remedy.
State-lead sites fall into two categories: sites where EPA has provided
funding and retains the right to select the remedy, and sites where EPA is
not involved. At sites in the first category, if the state is the lead and EPA
does not concur with the state s preferred alternative, EPA can assume the
lead for the ROD and proceed through the design stage. Such instances do
not occur often. In the second category, the state should be reminded that
EPA is not bound by the remedy selection unless EPA signs the ROD or
concurs on it. The state should send copies of the RI/FS report and draft
Proposed Plan to appropriate state and federal program offices. The RPM
should ensure consistency with CERCLA and the NCP, sufficiency of die
AR, and technical backup for the RI/FS, including Quality Assurance/
Quality Control (QA/QC) and treatability testing.
References
OSWER Directive 9200.1-18FS, "Consolidated Guide to Consultation
Procedures for Superfund Response Decisions" (May 1997).
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7-14 Selection of Remedy
7.2.D
7.2.D.1
Public Input
on
Remedial
Alternatives
Public
Notice
7.2.D.2
Public
Meeting
7.2.D.3
Public
Comment
Period
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfiind Decision Documents" (October 1989) (comprehensive update
anticipated in FY99).
The lead agency must make the Proposed Plan available to the public and
announce its availability. A notice must be placed in a local newspaper of
general circulation. In addition, the lead agency should notify the public of
opportunities and resources for community input in order to prepare
concerned citizens for an upcoming public comment period.
The lead agency presents information to the general public on the Proposed
Plan and upcoming public comment period primarily by placing a public
notice or advertisement in a local newspaper. In addition, EPA guidance
suggests announcing the availability of the RI/FS and Proposed Plan by
sending notices to all persons on the community involvement mailing list,
including PRPs. The lead agency may also wish to send out fact sheets or
letters to persons on the list or distribute copies of the Proposed Plan.
References
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (Octoberl989) (comprehensive update
anticipated in FY99).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing List"
(February 6, 1989).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange" (October 19, 1987).
Another source of public input is public meetings. Section 300.430
(f)(3)(I)(D) of the NCP requires that die lead agency provide an
opportunity for a public meeting near the site. The meeting need not take
the form of a public hearing. No single meeting format is appropriate for
all Superfund sites; however, the agency is required to keep transcripts of
public meetings concerning the RI/FS and Proposed Plan.
The lead agency solicits public participation in the remedy selection process
by holding a public comment period on the Proposed Plan, and frequently
on die RI/FS. During the comment period, the public, including PRPs,
may submit written statements or verbal comments containing information
for the lead agency to consider when selecting a remedial alternative.
Statements and comments may be presented at a public meeting orally or in
writing, and written statements may be submitted direcdy to the lead
agency.
Section 300.825(c) of die NCP addresses die issue of comments received
after the public comment period has ended. A detailed consideration of die
comment is required if die comments contain significant information, die
information is not contained elsewhere in die AR file, die information
could not have been submitted during die public comment period, or die
information substantially supports the need to significandy alter die
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7-75
7.2.D.4 Administrative
Record
7.2.D.5
PRP
Participation
response action. Other comments not meeting these criteria should still be
addressed in order to demonstrate that EPA has properly reviewed each
comment and to provide feedback to stakeholders. These comments need
only be presented in a simple response document outlining the NCP criteria
and the basis for not considering the comments. For a detailed discussion of
community involvement requirements, consult Chapter 13, Community
Involvement.
Many piloted activities provide opportunities for more public input. EPA is
currently evaluating the impacts that enhanced involvement has on the
settlement negotiation process, remediation planning studies, and cleanups
themselves.
References
Administrative Reforms, Round 2, Reform 6 ("Community Involvement in
the Enforcement Process Pilots").
Community Relations in Superfund: A Handbook, EPA/540/R-92/009.
NCP, 40 CFR section 300.430 ("Remedial Investigation/Feasibility Study
and Selection of Remedy") (1990).
At various times during the RI/FS and ROD process, public notices are
issued that refer interested persons to the AR file for information. The AR
includes all documents that the agency considered or relied on to select the
RA. The record file will be located at die regional office and at an
information repository at or near the site to facilitate review.
The lead agency compiles and maintains die AR file. Complete
documentation in die AR file is essential to demonstrate that the agency
considered all relevant information and provided a contemporaneous
explanation of its decision making, as this is die record that will used in any
judicial review of die decision (see Chapter 15, Records Management, for
more information on the AR). Exhibit 7-2 identifies die documents that
the agencies should place in the AR file during die remedy selection process.
Reference
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records
for Selection of CERCLA Response Actions" (December 3, 1990).
The lead agency, and not a PRP, must compile die AR. In some
circumstances, however, PRPs may assist in maintaining the AR and in
conducting community involvement activities. PRPs may house the AR file
at or near the site, provided that it is maintained in a location open to the
public and kept in a manner that would not discourage public participation.
It is the lead agency's responsibility, however, to maintain the record index
and to decide which documents to include in the record and which
documents to transmit to the PRPs for inclusion in the record. PRP
activities, with respect to community involvement activities, may include
assisting at public meetings and providing fact sheets, subject to the lead
agency's approval and oversight. The CIP should reflect the fact that PRPs
are helping conduct public information activities.
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7-16 Selection of Remedy
7.2.E
Preparation
for RD/RA
Negotiations
7.2.F
Final
Selection of
Preferred
Alternative
It is important to prepare for negotiations before the ROD is signed. Once
the ROD is signed at a federal-lead site, EPA may negotiate with the PRPs
over implementation of the Remedial Design/Remedial Action (RD/RA), as
appropriate. At a state-lead site, EPA is not required to conduct the
negotiations. If Fund monies will be requested by the state, however,
negotiations will precede the obligation of funds unless there is good reason
for not negotiating.
In accordance widi CERCLA, EPA may, at its discretion, send a Special
Notice Letter (SNL) to the PRPs. The notice letter triggers a 60-day
moratorium on EPA-conducted RA activities. If the PRPs submit a good
faith offer for conducting the work during the 60-day time frame, the
moratorium continues for another 60 days while EPA evaluates the offer
and finalizes negotiations (see Chapter 8, RD/RA Negotiations/Settlement,
for a detailed description of the appropriate circumstances and procedures
for conducting RD/RA negotiations).
In addition to notifying die PRPs that the moratorium has been invoked,
the negotiation team must notify other parties as well. The RPM must
notify state representatives and state or federal natural resource trustees.
This notification should include a copy of the SNL and a list of the parties
receiving it. The RPM should submit at this time the notice letter and the
list to the AR coordinator for inclusion in the AR.
Reference
OSWER Directive 9834.10, "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange" (October 19, 1987).
At the end of the public comment period, EPA re-evaluates its preferred
alternative on die basis of comments and new information received from the
public, including PRPs. As a result of this information, the Agency may
elect to adopt the preferred remedy as originally proposed, modify a
component of die preferred remedy, or select a different remedy. If the site
is state-lead and EPA does not agree with the states preferred remedy, EPA
must advise the state, in writing, that EPA is not bound by die state's
decision.
If the lead agency modifies its original preferred alternative, it must examine
die extent of the change. Some changes must be discussed in die ROD;
more significant changes may require additional opportunity for public
comment.
Reference
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989) (comprehensive update
anticipated in FY99).
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7-17
7-2 Contents of the Administration Record
The record file for a response action will typically, but not in all cases, include the documents
listed below. Documents that are relevant only to removal response actions are indicated in
brackets.
Factual Information/Data
• Preliminary Assessment report
• Site Investigation report
• Approved Remedial Investigation/Feasibility Study (RI/FS) work plan
• Amendments to final RI/FS work plan
• Sampling and Analysis Plan consisting of a Quality Assurance Project Plan and a Field
Sampling Plan
• Validated sampling and analysis data
• Chain of custody forms
• Inspection reports
• Data summary sheets
• Technical studies
• Endangerment assessment/risk assessment
• Summary of remedial action alternatives (used in conjunction with early Special Notice
Letters)
• RI/FS
• Engineering Evaluation/Cost Analysis (EE/CA) [Removal]
• Factual information submitted by the public (including PRPs)
Policy and Guidance
• Memoranda on policy decisions (site-specific, issue-specific)
• Guidance documents
• Technical literature
Public Participation
• Community Involvement Plan
• Newspaper articles
• Proposed Plan
• Public notices
• Community involvement mailing list and document sent to persons on this list
• Documentation of public meetings
• Public comments
• Transcript of public meeting on RI/FS and Proposed Plan
• Responses to state and other federal agency comments
Other Party Information
• Documentation of state involvement
• ATSDR health assessment
• Natural resource trustees, findings of fact and final reports
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7-18 Selection of Remedy
7-2 (cont.) Contents of the Administration Record
Enforcement Documents (Only if considered or relied on in selecting the response action)
• Administrative Orders
• Consent Decrees
• Affidavits
• Notice letters to PRPs containing relevant factual information not included elsewhere in
the record file
• Responses to notice letters
• Section 104(e) information requests
• Responses to section 104(e) information requests
Decision Documents
• ROD, including responsiveness summary
• Amended ROD
• Explanation of Significant Differences
• Action Memorandum [Removal]
• Amended Action Memorandum [Removal]
• EE/CA Approval Memorandum [Removal]
7.2.G Preparation Of After the Agency re-evaluates the chosen alternative, a draft ROD is
Hfoft ROD prepared. The ROD serves as the official Agency Decision Document
(DD) on the selection of a remedy that makes all determinations and
findings required by statute and regulation.
7.2.G.I Components RODs consist of three basic components:
of ROD
• Declaration - functions as an abstract for the key information
contained in the ROD and is the authorizing section of the ROD
signed by the EPA RA, Assistant Administrator (AA) of OSWER, or
other delegated official when all sections have been completed.
• Decision Summary - provides an overview of the site characteristics,
alternatives evaluated, and analysis of each option, and explains how
the selected remedy meets the statutory and regulatory requirements.
• Responsiveness Summary - provides an overview and analysis of
information and comments received on the Proposed Plan, RI/FS
report, and other information in the AR. It demonstrates how
comments were integrated into decision making and provides a
formal response to comments.
The following discussion highlights the process for compiling a ROD and
the elements of each section.
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7-19
7.2.G.1.A Declaration
7.2.G.1.B
Decision
Summary
7.2.G.1.C Responsiveness
Summary
References
OSWER Directive 9355.3-02FS-3, "A Guide to Developing Superfund No
Action, Interim Action, and Contingency Remedy RODs" (April 1991).
OSWER Directive 9335-3-02FS-1, "A Guide to Developing Superfund
Records of Decision" (November 1989).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (Octoberl989) (comprehensive update
anticipated in FY99).
The Declaration section of the ROD is signed by the EPA RA, the AA of
OSWER, or other delegated official. The support agency must also be given
the opportunity to concur with the remedy selected and, if appropriate, to
co-sign the ROD. It provides a brief description of the selected remedy and
the scope and role of the response action. The Declaration should
summarize information supporting the determination that the selected
remedy meets all statutory requirements and preferences or explain why it
does not. The Declaration should contain a statement regarding any ARAR
waivers. The determination of imminent and substantial endangerment also
should be included in die Declaration, unless the ROD is for a no-action
decision.
The Decision Summary should provide an overview of the site-specific
factors and analysis that led to selection of die remedy. Generally, this
section should include the following:
• Site name, location, and description.
• Site history and enforcement activities.
• Highlights of community participation.
• Scope and role of the OU or response action.
• Site characteristics.
• Current and potential future site and resource uses.
• Summary of site risks.
• Remediation objectives.
• Description of alternatives.
• Summary of die comparative analysis of alternatives.
• Selected remedy.
• Statutory determinations.
• Documentation of significant changes.
For no-action RODs, diis DD outline is abbreviated.
The final component of the ROD is the Responsiveness Summary, which
serves two purposes. First, it provides information on community
acceptance of the preferred remedy, which is considered by Agency decision
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7-20 Selection of Remedy
7.2.G.2
Changes
from the
Proposed Plan
to the ROD
7.2.H State/Federal
Consultation
on Selected
Remedy
makers in reaching a decision on a remedy. It also constitutes a freestanding
document explaining how the Agency solicited and responded to
community concerns, and is written after the Agency has chosen a remedy
in response to public comments. The Responsiveness Summary should be
both concise and complete.
It is important diat each significant comment received by EPA during die
public comment period be provided a thorough examination and response.
Agency policy, discussed in response to comments, must be reviewed by
management before it is incorporated into a final Responsiveness Summary.
Significant changes from the preferred alternative that could have been
reasonably anticipated by the public, such as substantially modifying or
selecting a different RI/FS alternative, must be documented and explained
in die documentation of significant changes section of the ROD. Non-
significant changes should be documented in the description of alternatives
section of the ROD. Significant changes may relate to the scope,
performance, or cost of die remedy as follows:
• Scope - changes that substantially alter the type of treatment or
containment technology, address a greater volume or type of waste, a
new environmental padiway or medium, or encompass a substan-
tially greater physical area of the site.
• Performance - changes in treatment technologies or processes that
alter die long-term effectiveness of the remedy, have different short-
term effects, or provide a different level of performance.
• Cost - changes that significantly alter die capital or operation and
maintenance cost estimates for die selected remedy. Feasibility study
cost estimates are expected to provide an accuracy between plus 50
percent to minus 30 percent.
If a change could not reasonably have been anticipated by the public, EPA
must seek additional public comment on a revised Proposed Plan. An
example of a change that could not reasonably have been anticipated is
selection of a new alternative not previously analyzed.
References
OSWER Directive 9355.3-02FS-4, "A Guide to Addressing Pre-ROD and
Post-ROD Changes" (April 1991).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989) (comprehensive update
anticipated in FY99).
Once die draft ROD is complete, die lead and support agencies will brief
dieir own management on die ROD. As outlined in section 300.515
(e)(2)(iii) of die NCP, die lead agency will submit die ROD to die support
agency, which should be allowed at least 10 working days to examine die
ROD, unless the CA or SMOA specifies a different period. Both agencies
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7-21
will submit the ROD for review by the support program offices. Each
agency determines its own period for interagency review.
In particular, lead and support agencies should get the input of regional and
state counsel. An area of potential dispute with the state is the
determination of which requirements are relevant and appropriate. It
should be stressed to the state that relevant and appropriate determinations
should make sense in light of the circumstances of the release at the site.
Regions should review the consultation guide to determine when
consultation widi Headquarters is necessary.
References
OSWER Directive 9200.1-18FS, "Consolidated Guide to Consultation
Procedures for Superfund Response Decisions" (May 14, 1997).
NCP, 40 CFR section 300.430 ("Remedial Investigation/Feasibility Study
and Selection of Remedy") (1990).
NCP, 40 CFR section 300.515 ("Requirements for State Involvement in
Remedial and Enforcement Response") (1990).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (Octoberl989) (comprehensive update
anticipated in FY99).
7.2.1 ConCUrrenCG The agency that takes the lead responsibility for preparing the ROD actively
seeks concurrence from the support agency. State-lead remedial actions
conducted under federal authority require EPA signature. State-lead
remedial actions at an NPL site that are conducted under state authority and
with state funding may, but need not, include an EPA concurrence.
Federal-lead RAs at an NPL site that are conducted under EPA authority
may, but need not, include a state concurrence. Concurrences become part
of the ROD Declaration.
While EPA may execute a ROD widi a remedy to which the state will not
agree, or on which it has yet to comment officially, EPA should anticipate
the consequences. First, for a Fund-lead action, it is unlikely that a state will
pay for part of die RA and Operations and Maintenance if it disagrees with
the remedy. Second, state non-concurrence may adversely affect settlement
negotiations, and a state may oppose entry of a Consent Decree (CD)
premised upon a remedy widi which it disagrees. Third, die state may
testify on behalf of the PRPs in a section 106 judicial action. Fourth, die
state may not grant necessary permits for off-site activities (e.g., Publicly
Owned Treatment Works disposal, transportation of wastes, and off-site
treatment). Nonetheless, in some instances EPA may sign a ROD over state
objections (refer to the Potential Problems/Resolutions section of this
chapter for a discussion of possible approaches to be considered if die state
and federal agencies prefer inconsistent alternatives and have difficulty
reaching concurrence).
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7-22 Selection of Remedy
7.2.J
Briefing and
Signature
7.2.K
Notice
7.2.L
Post-ROD
Changes
When the state completes a ROD, preferably the state director and the EPA
RA or other delegated official should sign it. Where there are disagreements
and EPA provided funding for the RJ/FS, EPA may assume the lead on a
ROD and sign it without state agreement. No state signature is required on
an EPA-lead ROD. All RODs conducted under federal authority will be
signed by the EPA RA or the AA of OSWER, if necessary, as specified in the
delegation report.
Pursuant to section 300.430 (f)(6)(i) of the NCP, the lead agency will
publish notice of the final RA plan. The notice will be published in a major
local newspaper of general circulation. CERCLA also requires that the
agency make the ROD available to the public before any RA begins. The
final version of the ROD, including the Responsiveness Summary, must be
included in the AR.
EPA may receive new information that leads to an alteration of the remedy
specified in the ROD. Such new information may include characterization
or volume of contamination present at the site, new expectations regarding
the performance of selected technologies under site-specific conditions, or a
change in clean up requirements (ARARs). A ROD Amendment,
Explanation of Significant Differences (ESD), or memorandum to the file
may be required depending on the nature of the post-ROD change.
A reform to update remedies was undertaken specifically to encourage
appropriate changes in RAs in response to advances in remediation science
and technology. Appropriate changes should reduce the cost or time
involved. If a remedy update is to occur, EPA must evaluate the
contemplated change to determine the procedures it must follow. Three
categories of post-ROD changes exist:
• Non-significant differences - minor changes diat do not signifi-
cantly affect the overall scope, performance, or cost of the alternative,
such as minor technical or engineering changes.
• Significant differences to a component of the remedy - changes
that significantly affect the overall scope, performance, or cost of the
alternative, but do not alter the overall waste management approach,
such as changes to ARARs, timing, cost, or implementation.
• Fundamental changes to the overall remedy - changes that alter
the overall waste management approach, such as substitution of a
containment remedy for a treatment remedy.
References
OSWER Directive 9355.3-02FS, "A Guide to Addressing Pre-ROD and
Post-ROD Changes" (April 1991).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (Octoberl989) (comprehensive update
anticipated in FY99).
-------
7-23
7.3
7.3.A Reporting
Requirements
7.3.A.I Submission of
Documents
7.3.A.2 Information
Databases
7.3.A.3 Implications of
Submissions
7.3.B Planning
Requirements
7.3.C Contractor
Participation
Planning and Reporting Requirements
This section discusses RPM planning and reporting requirements for the
selection-of-remedy phase of the Superfund program.
In addition to referring documents to EPA program offices for review, the
lead agency must submit them to EPA Headquarters in order to receive
credit for its accomplishments. The lead agency must also send to
Headquarters a hard copy of the ROD and a copy of the ROD text on disk
in order to receive credit for an initial, subsequent, or final RI/FS
completion.
The lead agency has responsibility for enabling EPA to track
accomplishments at the site, such as submission of the draft FS to die
public. The lead agency discharges diis responsibility by providing
information on selection of remedy activities to EPA databases. The RPM is
responsible for ensuring tliat accurate information on ROD start and
completion dates goes into the Comprehensive Environmental Response,
Compensation, and Liability Information System 3/Waste Local Area
Network (CERCLIS 3/WasteLAN).
The information supplied by the lead agency about RI/FS completion/ROD
submission has many important implications. The program planning and
budgeting processes use diis information. The planning processes for RD/
RA negotiations, design funding, and section 106 injunctive cases also rely
on this information. The lead agency must make every effort to ensure the
accuracy of the data and to achieve ROD completion by that time.
The enforcement budget should include an estimate of the dollars needed to
negotiate and obtain commitments from PRPs to perform or pay for the
response action. The RPM must also work closely with regional counsel
and the Department of Justice to determine any budgeting needs to carry
out case management strategy. This may include budgeting for a CERCLA
section 106/107 action or specialized RD/RA negotiation tasks, such as
Alternative Dispute Resolution (ADR), efforts to allocate responsibility,
orphan share determination, and peripheral setdements such as de minimis,
"de micromis," and findings on Ability to Pay. Response budgeting
requirements might involve implementation of a CIP and/or oversight or
implementation of a PRP-lead RD or a Fund-financed RD/RA.
As discussed in Chapter 6, RI/FS Implementation, EPA may reserve parts of
the RI/FS for its own conduct, or may perform parts when PRPs do not do
so satisfactorily. Contractors may assist in these endeavors. Contractors also
may assist in providing community involvement activities, with the approval
of die lead agency. Contractors may assist further by drafting
straightforward portions of die ROD package (e.g., site history, description
of contamination), by providing technical assistance in preparation of die
Responsiveness Summary, aldiough the accuracy of these documents
-------
7-24 Selection of Remedy
remains the responsibility of the lead agency, and by conducting ADR
where there are issues between the lead agency, PRPs, and/or the
community regarding the preferred remedy. Finally, contractors may assist
the lead agency in providing meetings and briefings for agency
management.
-------
7-25
7.4
7.4.A
PRPs' RI/FS
Suggests
Preferred
Remedy
7.4.B
Extensive
Public
Comment
7.4.C
Disputes
over ROD
Potential Problems/Resolutions
This section discusses problems commonly encountered by lead agencies
during die selection-of-remedy process. It suggests mediods that agency
personnel have found helpful in solving these problems.
The FS should not recommend a remedy; it provides information
impartially on all viable alternatives considered. The Proposed Plan should
contain this recommendation. If one is favored and not ultimately selected,
an FS amendment would be required. More importantly, pre-selection of a
remedy is implied, which arguably causes due process concerns since public
participation and support agency input are still pending. The best means of
avoiding this problem is prevention. The lead agency should provide
effective oversight of the RI/FS process, and may have to supplement the
RI/FS to avoid bias. The selected remedy must be well-founded on data
that exist in die AR,
References
OSWER Directive 9835. l(c), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies," Volume
1 (July 1991).
OSWER Directive 9835. l(d), "Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies," Volume
2 Quly 1991).
OSWER Directive 9835.la, "Interim Guidance on PRP Participation in the
RI/FS Process" (May 16, 1988).
The public may strongly advocate or discourage specific alternatives due to
health concerns, property value issues, or employment. The agency should
anticipate this situation and plan community involvement activities to
receive input from many citizens at an early date, thus getting conflicts out
in die open quickly and resolving the issues. Otherwise, the public may
provide a sizeable number of comments during the formal public comment
period, forcing the lead agency to use a substantial amount of time to
respond to the comments, which might throw off its schedule for
completing the ROD. In addition, the lead agency must allow adequate
time for responding to public comments when scheduling financial
commitments.
If the support agency does not concur on the remedy, the lead agency may
choose to proceed without the ROD. At a non-enforcement, federal-lead
site, the ability to proceed with the RA is contingent upon the availability of
die 10 percent (or 50 percent in the case of state-owned sites) state matching
funds. At a state-lead site, the state may proceed widi a state-funded RD/
RA without EPA concurrence. However, since EPA must certify that the
RA was performed in accordance with the NCP in order to remove the site
from the NPL, the state may have difficulty getting diis certification if EPA
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7-26 Selection of Remedy
did not concur on the ROD. At a PRP-lead site, the RD/RA may proceed
without state concurrence. Reaching consensus on the RA at ROD
signature generally precludes these difficult situations. There may be
instances, however, where proceeding with the ROD, despite non-
concurrence, is appropriate.
-------
7-27
7.5 Activities Checklist
The following checklist is not intended to present an exhaustive set of
procedures, nor is it meant to be a chronological list of tasks. RPMs should
exercise their professional discretion when deciding what procedures are
appropriate for a particular site.
Selection of Preferred Alternative
1) Review RI/FS report. Confirm that diere is sufficient informa-
tion to support the selection of a preferred alternative. Require
further study if the information is insufficient.
2) Make a preliminary determination on a preferred alternative.
3) Consult NRRB if the preferred alternative meets the specified
criteria.
4) Produce draft version of Proposed Plan diat identifies the
preferred remedial alternative.
5) Review and comment on all alternatives proposed by states and
odier federal agencies for PRP-lead sites.
6) Review operative Remedy Delegation Report to assess whedier
Headquarters review/comment or consultation is needed.
7) Send draft RI/FS report and draft Proposed Plan to appropriate
program offices.
8) Review state comments, summarize them in Proposed Plan,
and draft Agency response.
9) Finalize Proposed Plan by addressing support agency and other
program office comments as appropriate.
10) Submit RI/FS, Proposed Plan, comments, and responses to AR,
along with any other information used in reaching decision.
11) Publish newspaper notices announcing the availability of
resources for public information, the completion of the Pro-
posed Plan and RI/FS, and opportunities for community input.
12) Notify persons on mailing list that Proposed Plan and RI/FS
are complete.
13) Conduct public meeting.
14) Conduct community involvement activities.
15) Hold 30-day public comment period (diis may be extended by
an additional 30 days upon timely request).
Final Selection of Remedial Alternative
16) Re-evaluate preferred alternative on basis of comments and new
information received from the public, including PRPs and
other sources.
-------
7-28 Selection of Remedy
17) Prepare draft version of ROD Declaration and Summary.
18) Prepare Summary and Response to Comments for Responsive-
ness Summary.
19) Conduct public comment period on any significant changes
which were not logical outgrowths of the earlier remedial
alternatives.
20) Finalize ROD Summary.
21) Complete Responsiveness Summary
22) Brief lead agency management on ROD.
23) Submit ROD to appropriate offices and support agency, each
of which will brief its management on the ROD.
24) Seek input from regional counsel.
25) Seek concurrence or non-concurrence from support agency on
the selected remedy.
26) Brief agency management and present ROD for signatures.
27) Publish notice and make ROD available to public through AR.
28) Provide information on ROD start and completion for enter-
ing into CERCLIS 3/WasteLAN.
29) Send copy of ROD (hard copy and disk) to Headquarters.
-------
8. RD/RA Negotiations/
Settlement
-------
8-i
Chapter 8 RD/RA Negotiations/Settlement
8.1 Description of Activity 1
8.1.A Introduction 1
8.1.B Statutory Authority 1
8.1.C Overview of the Negotiation Process 1
8.1.C.1 RD/RA Negotiation Plan 1
8.1.C.2 Pre-Referral Package 3
8.1.C.3 Formal Settlement Process 3
8.1.D Roles and Responsibilities 4
8.1.D.I Remedial Project Manager 6
8.1.D.2 Regional Counsel 6
8.1.D.3 Office of Site Remediation Enforcement 6
8.1.D.4 Office of General Counsel 7
8.1.D.5 Department of Justice 7
8.1.E Delegations 7
8.2 Procedures and Interactions 10
8.2.A Regional Decision to Pursue RD/RA Negotiations 10
8.2.B Negotiation Planning 10
8.2.B.1 RD/RA Negotiation Plan 10
8.2.B.2 Draft Consent Decree 12
8.2.B.3 Covenants Not to Sue 13
8.2.B.4 Matters Addressed 15
8.2.B.5 Reopeners 18
8.2.C Notification of States and Federal Natural Resource Trustees 18
8.2.D Special Notice Letters 18
8.2.D.1 Contents 18
8.2.D.2 Cost Recovery 19
8.2.D.3 Timing the Special Notice Letter 20
8.2.D.4 Section 122(a) Letters 20
8.2.E Good Faith Offer 20
8.2.F Negotiation Extensions 21
8.2.G Settlement Incentives/Disincentives 22
8.2.H CERCLA Settlement Policy 22
8.2.I Settlement Tools 24
8.2.1.1 Mixed Funding Settlements 24
8.2.1.1.1 Preauthorization 26
8.2.1.1.2 Mixed Work Settlements 28
8.2.1.1.3 Cashout Settlements 28
8.2.1.2 De Minimis Settlements 29
8.2.1.2.1 Eligibility Criteria 29
8.2.1.2.2 Necessary Information for Contributor
De Minimis Settlements 30
8.2.I.2.3 Potential De Minimis Sites...: 30
-------
8—ii RD/RA Negotiations/Settlement Table of Contents
8.2.1.2.4 Communication Strategies 30
8.2.1.2.5 Timing De Minimis Settlements 31
8.2.I.2.6 Cost Reopeners 31
8.2.I.2.7 Finalizing Settlement 32
8.2.1.3 "De Micromis" Settlements 32
8.2.1.4 Non-Binding Allocation of Responsibility 33
8.2.1.5 Orphan Share Compensation Policy 34
8.2.1.6 Special Accounts 35
8.2.J Processing Final Settlements 37
8.2.K Referral Package 37
8.2.L Inducements to Non-Settlors/Enforcement Options 38
8.2.L.1 Section 106(a) Unilateral Administrative Orders 38
8.2.L2 Enforcement Discretion 40
8.2.L.3 Section 106 Litigation 41
8.2.L.4 Fund 41
8.2.L.5 Partial Settlements 41
8.2.M Post-Referral Actions by the Department of Justice 42
8.3 Planning and Reporting Requirements 44
8.3.A Budget Requirements 44
8.3.B Reporting Requirements 44
8.4. Potential Problems/Resolutions 48
8.4.A Poor Relations Among the PRPs 48
8.4.B Multiple Revisions to Draft Consent Decree 48
8.4.C Settling with Major Contributors at De Minimi's
Settlement Sites 49
8.4.0 Use of Public Relations 49
8.4.E Inadequate PRP Searches 49
8.4.F Late Challenges to Volumetric Ranking 50
8.5 Activities Checklist 51
-------
8-1
Chapter 8 RD/RA Negotiations/Settlement
8.1
8.1. A Introduction
8.1.B
Statutory
Authority
8.1.C
Overview of
the
Negotiation
Process
8.1.C.1
RD/RA
Negotiation
Plan
Description of Activity
This chapter discusses the process of negotiating for Potentially Responsible
Party (PRP) conduct of the Remedial Design/Remedial Action (RD/RA)
and focuses on the Remedial Project Managers (RPM's) role in that process.
In addition to discussing the RD/RA negotiation process, this chapter
discusses the settlement tools available to EPA and PRPs, including mixed
funding, Non-Binding Preliminary Allocations of Responsibility (NBARs),
and de minimis and "de micromis" setdements. "De micromis" parties are a
subset of de minimis parties; therefore, unless otherwise noted, all RD/RA
negotiation/setdement procedures applicable to de minimis parties will also
apply to "de micromis" parties.
Section 122 of CERCLA requires that all RD/RA setdements with PRPs be
finalized as judicial Consent Decrees (CDs). CDs usually reference section
106 ("Abatement Actions") and section 122 (Settlements). Settlements for
RD/RA or RA only are never done administratively as an Administrative
Order on Consent (AOC). Setdements for RD only may take die form of
AOCs. Setdements widi de minimis parties, also may be finalized as AOCs.
The RD/RA negotiation process requires cooperation and close coordina-
tion of the regional program office, regional counsel, the Department of
Justice (DOJ), and die Office of Site Remediation Enforcement (OSRE).
Exhibit 8-1 summarizes the RD/RA negotiation process.
The negotiation planning process begins widi a regional decision that there
are PRPs who are liable and financially capable of properly implementing
die remedy and who may be willing to settle. The region must evaluate die
results of die PRP search and odier evidence when making diis decision.
The PRP search should be completed as early as possible, ideally well in
advance of RD/RA negotiations. Regions should attempt to begin RD/RA
negotiations concurrendy widi die RD to prevent lag-time between negotia-
tions and die commencement of die RD.
The first step in die RD/RA negotiation process is for the RPM and
regional counsel to develop an RD/RA negotiation plan oudining the
negotiation objectives and strategy. This plan is part of integrated remedial
and enforcement planning. As a management device, it will define roles
and responsibilities for all participants, establish mutually agreed timelines
for performance of individual responsibilities, establish a framework for
accountability in tracking progress, and make it possible to obtain commit-
ments from all participants to shared goals and objectives. Key steps in die
negotiation planning process are ensuring a timely and high-quality PRP
search, including information for special notice and evidence for litigation;
ensuring diat die Administrative Record (AR) is in order; documenting past
costs; and establishing a substantive negotiating strategy. Use of settlement
devices, such as mixed funding and de minimis, should also be evaluated for
-------
8-2 RD/RA Negotiations/Settlement
8-1 RD/RA Negotiation Process
Non-viable
Fund-lead RD/RA
No Settlement
Enforcement Options:
Section 106 UAO
Fund implementation
Referral of section 106 litigation
Cost recovery (section 107)
Decision to Pursue Negotiations
Viable
Review PRP Search and
Administrative Record
I
Develop Negotiation Plan:
Case status
Cost recovery plan
PRP search assessment
Remedy selection plan and
review
Notify trustees
Special notice preparation
CD preparation
Special account disbursement
provisions (if appropriate)
Orphan share compensation (if
appropriate)
Prepare UAO (if appropriate)
EPA Negotiating positions
Negotiation strategy
Enforcement strategy and
schedule
Major milestone schedule
Funding strategy
Notify States
1
Work with Steering Committee
Issue Special Notice
Receive GFO
J_
Negotiate
Finalize Settlement
PRP Search
Follow-up
Activities
(as needed)
60-day Formal
Negotiation Period
(Consider Settlement
Tools)
60-day Extension
Possible RA and
AA, OSWER
Extensions
Partial Settlement
Full Settlement
i
Sign Consent Decree
Enforcement Options:
(non-settlors)
Section 106 UAO carve put
Referral of section 106 litigation
Cost recovery (section 107)
NOTE: This general overview of removal enforcement may not apply in all situations, especially emergencies.
-------
8-3
appropriateness. De minimis parties should be removed from the liability
system as early as possible (pre-Record of Decision (ROD), if appropriate).
By the time the RD/RA negotiation and settlement process begins, most or
all PRPs have been notified of their status as PRPs with a General Notice
Letter (GNL). Following general notice, EPA continues to look for more
PRPs and for hard evidence of liability. If additional PRPs are identified,
EPA issues GNLs to them, as allowed under section 122(a), unless special
notice has been provided or waived. Language can be inserted into GNLs
to solicit information about nomination of additional parties. The RPM
and regional attorney should encourage the new PRPs' involvement in the
negotiations and should notify them of any PRP steering committees that
may have formed.
The RPM should contact the federal natural resource trustees again (earlier
contact will have occurred prior to the RD/RA negotiation planning
process) when developing the negotiation plan to ensure their input to the
plan. Coordination with the state is important when developing the RD/
RA negotiation plan to ensure that the states concerns are understood and
to determine the availability of state funding should negotiations fail to
produce a setdement.
8.1 .C.2 Pte- A pre-referral package should be submitted to DOJ (with copies to OSRE)
Referral before the commencement of the formal settlement process to ensure timely
Package involvement of and coordination with DOJ. Generally, the pre-referral
package should be provided to DOJ at least 60 days prior to the issuance of
the RD/RA Special Notice Letters (SNLs).
As a practical matter, it is advisable to commence dialogue with OSRE and
DOJ as early as possible, prior to providing the pre-referral for the 60-day
review, by conducting a phone conference to obtain their input on a
comprehensive setdement strategy from a national perspective. This
perspective sometimes reveals problems diat other regions are incurring with
a certain setdement approach. Awareness of these problems may influence
the overall setdement strategy and result in a more efficient settlement
process.
8.1 .C.3 Formal The formal settlement process begins with the issuance of SNLs to the
Settlement PRPs. SNLs are authorized by CERCLA when EPA determines that a
Process period of negotiation would facilitate an agreement with PRPs for taking
response action. Issuance of special notice should occur between die time
the Proposed Plan and draft Feasibility Study (FS) are released to die public,
and die date the ROD is signed, or shortly thereafter. Exceptions to diis are
discussed later in diis chapter. A draft CD (approved by appropriate EPA
and DOJ management) and Proposed Remedial Action Plan, or proposed
or final ROD should be attached to the SNL.
With certain exceptions, die issuance of SNLs begins a 60-day moratorium
on action under sections 104 and 106 of CERCLA. PRPs have 60 days
from the date SNLs are issued to submit a Good Faith Offer (GFO) to
EPA. If such an offer is received, the moratorium is extended an additional
-------
RD/RA Negotiations/Settlement
8.1. D Roles
and
Responsibilities
60 days. If additional time is necessary, the Regional Administrator (RA) or
his/her delegate may extend the moratorium period for an additional 120-
180 days. Moratorium extensions beyond 120 days should only occur in
exceptional cases. Negotiation schedules should be established quickly and
adhered to as stricdy as possible. To aid in keeping a set negotiation
schedule, RPMs should ensure that dieir expectations are clearly understood
by all the parties involved, including PRP attorneys, regional counsel, and
DOJ.
Once agreement has been reached, die PRPs and the RA must sign a CD.
The CD is then forwarded to DOJ widi a referral package developed by
regional counsel. If the setdement falls under any of the categories of non-
delegated settlements, OSRE must concur on die signed CD before it is
forwarded to DOJ. It should be noted diat RD-only setdements may be in
die form of an AOC and can be used to expedite die initiation of response
work. EPA does not encourage RD-only setdements widiout an expecta-
tion that the PRPs will agree to conduct the remedial action.
Should EPA fail to reach an agreement with die PRPs, die region may issue
a Unilateral Administrative Order (UAO). If die PRPs fail to comply with
the UAO, EPA may initiate a judicial action (referral to DOJ), and/or
initiate Fund-financed activity. Referrals to DOJ for RD/RA are usually
under die audiority of section 106 of CERCLA. Regions provide litigation
support for die case after it is filed in court by DOJ.
References
Office of Enforcement (OE), "Model CD Implementation" (August 1991).
OE, "Draft CERCLA RD/RA Setdement Negotiations Checklist" (January
26, 1988).
Office of Solid Waste and Emergency Response (OSWER) Directive
9835.4, "Interim Guidance: Streamlining die CERCLA Setdement Deci-
sion Process" (February 12, 1987).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotia-
tions, and Information Exchange" (October 19, 1987).
This section describes die roles and responsibilities of the RPM, regional
counsel, and representatives from OSRE, the Office of General Counsel
(OGC), and DOJ. The primary activities for each group are summarized
for each phase of die negotiation process below and in Exhibit 8-2.
-------
8-5
8-2 Roles and Responsibilities
RPM
•
NEGOTIATIONS PLANNING
• Ensure PRP search review and follow up
by civil investigator and ORC
• Send GNL, if necessary
• Coordinate update information exchange
with the PRPs, including section 104{e)
jetters and provide the PRPs with
information regarding other PRPs (in
conjunction with regional counsel)
• Assemble cost documentation
• Assist in preparation of negotiation plan
and pre-referral litigation report
• Review administrative record
• Comment upon technical provisions of
consent decree
• Develop remedial action plan in
conjunction with specialized technical
teams (e.g., ground water, treatment,
design) or contractors
• Notify state and trustees
INFORMAL AND FORMAL NEGOTIATIONS
• Send Special Notice Letters (SNLs)
• Conduct negotiations as lead technical
representative on the case team
• Maintain coordination among appropriate
Headquarters and state and natural
resource trustee offices
• Request extensions for negotiations
from Regional Administrator/
Headquarters, if necessary
• Obligate funds from the Trust Fund, if
appropriate
ORC
NEGOTIATIONS PLANNING
Review strength of evidence of PRP
liability
Assist in preparation of the RD/RA
negotiation plan and pre-referral
litigation report
Review draft ROD and administrative
record
Draft initial consent decree
Notify DOJ of the negotiations
INFORMAL AND FORMAL NEGOTIATIONS
• Draft EPA's negotiation strategy
• Review the SNL
Conduct negotiations as the lead legal
representative
• Redraft consent decree with changes
resulting from negotiations
• Coordinate with the state legal
representative
-------
8-6 KD/RA Negotiations/Settlement
8.1.D.1
Remedial
Project
Manager
8.1.D.2
Regional
Counsel
8.1.D.3
Office of
Site
Remediation
Enforcement
The RPM plays a central role throughout the RD/RA negotiation process.
The RPM is responsible for technical aspects of the case and for coordinat-
ing with regional counsel and OSRE during each phase of the negotiations.
Planning, preparing for, and participating in the negotiations process, along
with negotiation coordination, usually involves a substantial time commit-
ment by the RPM over a long period.
The RPM works together with die On-Scene Coordinator (OSC) and
regional counsel to develop the negotiation plan early in the process, before
GNLs are issued. The planning stage is based on a diorough and complete
PRP search. RPMs should always give the PRPs early notice of their
potential liability through GNLs. Information on volumetric rankings of
PRPs and the nature of substances at the site should be included in an RI/
FS special notice. The RPM ensures diat the PRP search has been updated,
as appropriate, and that special notice for RD/RA is prepared. The RPM
also is responsible for preparation of a negotiation strategy, in conjunction
with regional counsel. In view of die intense efforts required to prepare the
Proposed Remedial Action Plan, Responsiveness Summary, and ROD, as
much of this work as possible should be done before the Proposed Plan is
prepared. The RPM assists in developing the CD by commenting on the
technical aspects of die document. The RPM also participates in develop-
ing die case referral packages for section 106 and section 107 litigation
cases.
In some regions, an enforcement specialist assists the negotiation team by
helping to prepare GNLs, SNLs, and cost documentation packages, and by
participating in negotiations.
The regional counsel, in partnership with the RPM, plays a central role in
all phases of die RD/RA negotiations. The regional counsel's primary role is
to prepare the pre-referral litigation report to DOJ and die draft CD, and to
provide legal counsel during die negotiation process. The regional counsel
is responsible for coordinating with DOJ, OSRE, and OGC as appropriate
during die RD/RA negotiations. The regional counsel also participates in
die development of die case referral package for DOJ litigation of section
106 and section 107 cases.
OSRE is responsible for ensuring national consistency for negotiated
settlements and consistency widi Agency policy. OSRE (specifically die
Regional Support Division (RSD) of OSRE) has regional liaisons, and
OSRE has designated subject matter experts who are versed in the various
RD/RA setdement tools (e.g., mixed funding, de minimis) and who act as
resources for the RPM and regional counsel.
OSRE participates in management review of non-delegated settlements.
The Assistant Administrator (AA) of the Office of Enforcement and Com-
pliance Assurance (OECA) or, in some cases, die Director of OSRE, must
concur on these settlements. Additionally, OSRE representatives may
participate on negotiation teams if complex or nationally significant issues
are anticipated. OSRE also may assist the regions in assembling part of the
-------
8-7
8.1.D.4
8.1.D.5
Office of
General
Counsel
Department
of Justice
8.1.E Delegations
cost documentation package. OSRE should be on the case correspondence
list and should be supplied with relevant documents, including pre-referral
litigation reports and draft CDs, relating to cases in RD/RA negotiations.
OSRE is also responsible for ensuring that negotiated settlements are
consistent across the regions with national policy for legal matters. OSRE
attorneys have expertise in the legal implications of RD/RA settlements, and
they may participate in any negotiations in which complex or nationally
significant issues are anticipated, assist regional counsel in pre-referral
matters, and review referrals sent to DOJ. OSRE also reviews all CDs
resulting from settlements.
OGC has the sole responsibility for issuing Agency legal opinions and
providing advice on matters of legal and statutory interpretation to the
regions and program offices. If there is a difference of opinion between the
regions or between Headquarters offices, OGC has the ultimate responsibil-
ity for providing legal advice and direction for EPA as a whole.
DOJ's representative from the Environment and Natural Resources
Divisions Environmental Enforcement Section is EPA's attorney for the
litigation of Superfund cases. DOJ participates fully in negotiations,
litigation, and enforcement strategy development. DOJ representatives
participate on the negotiations team. The DOJ attorney represents DOJ
views on die case and is responsible for providing consistency widi and
insight into other enforcement cases. The attorney also provides analysis of
the litigation risks of going to trial. DOJ concurrence is required for all
RD/RA or RA CDs. At facilities where total Fund response costs exceed
$500,000, DOJ concurrence is also required for CERCLA section 122(h)
cost recovery setdements and section 122(g) de minimis Administrative
Orders (AOs). The DOJ attorney and appropriate management review the
initial and subsequent drafts of die CD before it is sent to the PRPs. DOJ
case attorneys are essential legal resources for the RPM and regional counsel.
Close coordination and communication with DOJ is important for success-
ful negotiation and litigation of Superfund cases.
The RPM should remember diat die information gathered in the initial
stages of site cleanup, such as information gathered during the PRP search
and in preparation for RI/FS negotiations, may be used later in litigation
concerning the site.
The Environment and Natural Resources Division's Office of Litigation
Support (OLS) is available to consult with EPA regarding information
management services that are available and how diose services can be
tailored to best serve a situation at a particular site.
The OSRE Memorandum "Revisions to OECA Concurrence and Consul-
tation Requirements for CERCLA Case and Policy Areas" (September 30,
1998) defines the requirements for concurrence, prior written or oral
approval, and consultation that regions must comply with during the RD/
RA negotiations and setdement process. For example, the memorandum
-------
8-8 RD/RA Negotiations/Settlement
specifies that the Regional Administrator may approve RD/RA negotiation
moratorium extensions from 120 to 180 days, after, which the prior written
approval of the Director/RSD is required for extensions from 181 to 240
days, and the prior written approval of the Director/OSRE is required for
extensions from 241 to 300 days. The memorandum also contains the
concurrence and consultation requirements for various categories of settle-
ments. Because revisions to concurrence and consultation requirements are
made frequently, the required concurrence or consultation for a particular
negotiation and settlement action should be confirmed in advance. A chart
listing designated OSRE staff for specific CERCLA consultations is avail-
able from OSRE.
References
OECA Memorandum, "Revisions to OECA Concurrence and Consultation
Requirements for CERCLA Case and Policy Areas" (September 30, 1998).
OECA Memorandum, "Supplemental Environmental Projects Policy"
(April 10,1998).
OSRE Memorandum, "Policy for Municipality and Municipal Solid Waste
CERCLA Settlements at NPL Co-Disposal Sites" (February 5, 1998).
OECA Memorandum, "Interim Policy on Settlement of CERCLA Section
106(B)(1) Penalty Claims and Section 107(c)(3) Punitive Damages Claims
for Noncompliance with Administrative Orders" (September 30, 1997).
OSRE Memorandum, "General Policy on Superfund Ability to Pay Deter-
minations" (September 30, 1997).
OECA Memorandum, "Coordinated Settlement of Parallel Proceedings
Interim Policy and Procedures" (June 9, 1997).
OSRE Memorandum, "Transmittal of Sample Notice Letters: 1) Demand;
2) General Notice; 3) Special Notice; and 4) Follow-Up 104(e) Request"
Guly 26, 1996).
OECA Memorandum, "Office of Enforcement and Compliance Assurance
and Regional Roles in Civil Judicial and Administrative Site Remediation
Enforcement Cases" (May 19, 1995).
OSRE Memorandum, "Model Administrative Order for CERCLA Informa-
tion Requests" (September 30, 1994).
OSWER Directive 9833.06, "Model Administrative Order on Consent for
Removal Response Actions" (March 16, 1993).
OSWER Directive 9835.3-2A, "Administrative Order on Consent for
Remedial Investigation/Feasibility Study" (July 2, 1991).
OSWER Directive 9012.10-1, "Clarification of Delegations of Authority
14-14-A, 14-14-B, and 14-14-C Under CERCLA" (April 4, 1990).
OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements
Involving Municipalities and Municipal Wastes" (December 6, 1989).
-------
8-9
OSWER Directive 9834.4A, "Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative Subpoenas" (August
25, 1988).
OSWER Directive 9012.10-a, "Revision of CERCLA Civil Judicial Settle-
ment Authorities Under Delegations 14-13 B and 14-14 E (June 17,
1988).
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8-10 RD/RA Negotiations/Settlement
8.2
8.2.A
Regional
Decision
to Pursue
RD/RA
Negotiations
8.2.B
8.2.B.1
Negotiation
Planning
RD/RA
Negotiation
Plan
Procedures and Interactions
The regional decision to pursue RD/RA negotiations must be included in
the prior-year Superfund Comprehensive Accomplishments Plan (SCAP)
commitments to allow the Agency to define the resource needs for the
region. Regions should use the annual SCAP process and quarterly updates
to identify those sites that are likely to progress to RD/RA negotiations in
the current fiscal year and the planned fiscal year. Sites at which RODs are
expected are considered the initial pool of prospects for RD/RA negotia-
tions.
The RPM and regional counsel are the lead technical and legal negotiators,
respectively, on the negotiation or Case Team. In addition, the RPM is
usually responsible for developing a budget estimate of post-RI/FS support
needs during RD/RA negotiations. The regional CERCLA section chief
and Case Team have responsibility for notifying federal natural resource '
trustees, states, DOJ, OSRE, and the relevant technical support personnel
of the region's intent to pursue RD/RA negotiations in the planned fiscal
year. The decision to conduct RD/RA negotiations should be entered as a
planned SCAP target.
During the RI/FS, and prior to initiation of negotiations for PRP conduct
of RD/RA activities, the negotiation team should review the results of PRP
search activities at the site and identify follow-up activities that may lead to
identification of additional PRPs or improved evidence about the volume,
substances, liability, or financial viability of previously identified PRPs. The
potential role of newly identified PRPs should be considered when develop-
ing the negotiation plan.
Negotiations for which EPA is fully prepared, especially those with well
established plans, schedules, and deadlines, are much more likely to result in
a signed CD than negotiations for which EPA has not adequately planned.
A suggested RD/RA negotiation planning schedule is presented in Exhibit
8-3. The essential elements of negotiation planning are discussed below.
The RD/RA negotiation plan is one major component of the site manage-
ment plan. The object of the plan is to assist the RPM in effective manage-
ment of the RD/RA negotiation process and to increase the likelihood of
achieving PRP setdements for RD/RA. The detailed RD/RA negotiation
plan, in combination with the site overview and other existing components
of die site management plan (e.g., the PRP search plan, RI/FS negotiation
plan), should comprise the pre-referral litigation report.
The RPM and regional counsel should prepare an RD/RA negotiation plan
that outlines the negotiation objectives and strategy. The RD/RA negotia-
tion plan is a vehicle to assist in planning specific goals and objectives, and
establishing a schedule for die negotiations. The plan should also serve as a
checklist of steps to be taken in EPA's negotiation process. The plan should
address, at a minimum, the following topics:
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8-11
8-3 Sample RD/RA Negotiation Planning Schedule
Activity
Schedule With Respect
To Planned Negotiation
Start Date
Assess PRP search
Request cost recovery documentation
Decide to pursue negotiations
Make final PRP search evaluation
Assess cost recovery case
Develop negotiation plan
Implement negotiation plan
Initiate at least 3 quarters prior to start date to
allow for supplemental activities. Conclude
supplemental activities no later than 5 months
before start date.
Complete checklist (negotiation plan) 2 quarters
prior to start date.
At least 4 months prior to start date.
At least 3-1/2 months prior to start date.
At least 1 quarter prior to start date.
Case status, including current status of site response activities, site
enforcement activities, and their relation to overall site objectives.
PRP search assessment, including assessment of completeness
(identification of all PRPs, information on volume/nature of sub-
stances from each PRP), tracking systems, strength of evidence,
financial viability of PRPs, liability theories, and PRP defenses.
Cost recovery, including plans for updating documentation, recovery
of past costs to date, estimates of future oversight costs, assessment of
Statute of Limitations (SOL) issues, computation of interest claims,
demand for past costs in general or special notice or demand letters,
assessment of any weaknesses in past costs, relationship of past costs
to overall settlement, and litigation alternatives for recovering costs if
non-setdors exist or negotiations are unsuccessful.
The remedy selection plan and review of the AR, including identifi-
cation of participants in RI/FS and ROD preparation, a detailed
timeline for ROD preparation (if the ROD has not been signed),
public participation in the remedy selection process, review of die
AR, and overall coordination with enforcement case development
and negotiations.
SNL preparation and review (wirJi volumetric ranking attachment).
CD preparation and review, including technical deliverables and
schedules. (If an orphan share exists at die site, compensation should
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8-12 KDIRA Negotiations/Settlement
8.2.B.2
Draft
Consent
Decree
be included in the elements of the CD. Terms for disbursement of
funds from a special account should also be defined in the CD.)
• Planning for negotiation positions, for obtaining approval for
negotiations, and overall tactics to achieve these objectives. Review
of volumetric shares, non-viable parties, strength of evidence,
appropriateness of de minimis and/or mixed funding settlement, and
criteria for evaluating GFOs. Possible re-examination of positions, if
there are some setdors and some viable non-settlors.
• Procedural strategy for carrying out negotiations, including discus-
sions with the steering committee, timing of special notice, drop-
dead dates, draft CDs, die development of work plans, an oversight
plan, and associated response needs.
• Enforcement strategy and a schedule for actions should negotiations
not result in a setdement widiin established timeframes. These
actions may include section 106(a) UAOs or judicial actions.
• Funding strategy (RD and RA may be separate) and schedule if case
does not settle, including an analysis of state cost share issues.
• Schedule for major milestones with specific Case Team assignments
for managing and performing task accomplishments.
• Resource needs.
The terms and conditions governing the RD/RA or RA activities of PRPs
are specified in a CD. The Case Team should prepare a draft CD as part of
die negotiations planning activities. A model CERCLA CD has been
prepared for diis purpose. Exhibit 8-4 presents die elements oudined in
die model CD.
Nine of the clauses in die Model CD-site access, dispute resolution,
covenants not to sue, additional response actions (which falls under heading
XXI in Exhibit 8-4), indemnification, contribution protection, force ma-
jeure, certification of completion, and stipulated penalties—are considered
very important. This means that any significant deviation from the model
language for diese clauses must be concurred widi by OSRE. The concur-
rence of appropriate EPA and DOJ management on die draft decree should
be obtained before it is sent to die state or die PRPs. In addition, die region
is required to send a mini-litigation report to DOJ 60 days before sending
the draft RD/RA CD to die PRPs at die beginning of negotiations. A mini-
litigation report is required for all RD/RA negotiations. See Exhibit 8-5 for
die time frames in which this consultation/concurrence should occur.
Reference
"Revised Model CERCLA RD/RA Consent Decree," 63 Federal Register
9541 (February 25, 1998).
-------
8-13
8-4 Provisions in Model Consent Decree
I. Background
II. Jurisdiction
III. Parties Bound
IV. Definitions
V. General Provisions
VI. Performance of the Work by Settling Defendants
VII. Remedy Review
VIII. Quality Assurance, Sampling, and Data Analysis
IX. Access and Institutional Controls
X. Reporting Requirements
XI. EPA Approval of Plans and Other Submissions
XII. Project Coordinators
XIII. Assurance of Ability to Complete Work
XIV. Certification of Completion
XV. Emergency Response
XVI. Reimbursement of Response Costs
XVII. Indemnification and Insurance
XVIII. Force Majeure
XIX. Dispute Resolution
XX. Stipulated Penalties
XXI. Covenants Not to Sue by Plaintiff[s]
XXII. Covenants by Settling Defendants
XXIII. Effect of Settlement; Contribution Protection
XXIV. Access to Information
XXV. Retention of Records
XXVI. Notices and Submissions
XXVII. Effective Date
XXVIII. Retention of Jurisdiction
XXIX. Appendices
XXX. Community Relations
XXXI. Modification
XXXII. Lodging and Opportunity for Public Comment
XXXIII. Signatories/Service
XXXIV. Final Judgment
8.2.B.3 Covenants Under section 122(f)(l), EPA may grant covenants not to sue for both
Not tO Sue present and future liability to setding PRPs. In general, present liability
refers to the PRPs' obligation to pay response costs already incurred by the
Agency and to complete those remedial activities set forth in the ROD.
Future liability refers to the PRPs' obligation to perform any further re-
sponse activities that are necessary to protect human health or the environ-
ment that arise after the ROD is signed.
Generally, PRPs do not receive broad covenants not to sue (which some-
times are referred to as releases from liability). PRPs may be released from
-------
Pre-Referral Lit.
Report and Consent
Decree Sent to:
-DOJ
-OSRE
DOJ Moves for Entry of CD (If no
significant comment)
DOJ Lodges CD;
Notice in
federal Register
"Final" Draft CD
to DOJ and HQ2
1 Closure reached within 120-180 days on all fundamental terms of settlement and most language
of a final consent decree.
2 OSRE participates to the extent prescribed in CERCLA settlement delegations.
3 Includes 21 days for OSRE concurrence/consultation as prescribed in CERCLA settlement
delegations.
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30
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-------
8-15
liability for past costs if they reimburse the Fund for all or part of its
response costs at the site, depending on the provisions of die setdement.
Under most RD/RA CDs, PRPs are liable for implementation of the ROD,
Operation and Maintenance (O&M), and payment of government over-
sight costs. A covenant not to sue becomes effective for these liabilities
upon payment of past costs. However, die covenant is contingent upon
complete and satisfactory performance by setding PRPs. They remain
committed to undertake any furdier response action required by the
CERCLA section 121(c) five-year review.
Assuming CERCLA section 122 (f)(l) conditions are met, EPA must
provide special covenants not to sue, as described in CERCLA section
122(f)(2), in die following two cases:
• If EPA selects a remedial action involving off-site disposal after
rejecting a PRP proposal to conduct an on-site remedy diat fully
complies widi die National Contingency Plan (NCP) requirements.
• If the remedy involves treatment of hazardous substances and
treatment of by-products that destroy, eliminate, or permanendy
immobilize each of die substances such diat, in die judgment of
EPA, neidier die substances nor die byproduct of treatment present
any current or future significant risk. Examples of such treatment
technologies may include biodegradation and incineration.
Covenants not to sue widiout reopeners also may be provided under
extraordinary circumstances, as described in CERCLA section 122(f)(6)(B).
Only die natural resource trustees may audiorize covenants not to sue for
natural resource damages.
Covenants not to sue for future liability take effect upon certification diat
die remedial action has been completed and performance standards have
been achieved in accordance with die terms of the ROD and in a manner
consistent with die NCP. Chapter 11, Site Completion/Deletion, contains
more detailed information on certifying die completion of remedial activity
at a site.
References
OSWER Directive 9834.8, "Covenants Not to Sue Under SARA" (July 10,
1987)
"Revised Model CERCLA RD/RA Consent Decree," 63 Federal Register
9541 (February 25, 1998).
8.2.B.4 Matters In die past, setdements generally have not included a definition of "matters
Addressed addressed," but instead have contained a statement diat die "Settling
Defendants are entitled to such protection from contribution actions or
claims as is provided in CERCLA section 113(f)(2)" or die equivalent. This
approach caused uncertainty regarding die effect of the setdement on die
contribution rights of persons not party to die setdement, and in turn
caused subsequent litigation and delays in entry of decrees. Defining
"matters addressed" in settlements will reduce uncertainty and litigation
-------
8-16 RD/RA Negotiations/Settlement
regarding the scope of contribution protection associated with such settle-
ments. Therefore, a definition of "matters addressed" should typically be
included in the contribution protection section of future settlements. The
general principles for defining "matters addressed" are as follows:
• "Matters addressed" should be site-specific, and should identify
response actions and costs for which the parties intend contribution
protection to be provided. At a minimum, these will be the response
actions the settling parties agreed to pay for or perform, but can be
broader in range in some circumstances, such as for de minimis and
ATP settlements.
• The "matters addressed" must satisfy the legal standard for entry, i.e.,
that the settlement is "fair, reasonable, and consistent with the goals
of CERCLA." The required demonstration can ordinarily be
accomplished by showing that the response actions or costs within
the definition of "matters addressed" were considered in determining
the amount of the setdement and that the settlors' contribution
represents a reasonable contribution based on a defensible criterion
such as volumetric share and toxicity of hazardous substances
contributed to the site.
• The scope of the covenant not to sue is relevant to, but not disposi-
tive of, the scope of "matters addressed." In some cases, "matters
addressed" are defined less broadly than the covenant not to sue. An
' item that is not within the scope of the covenant not to sue, however,
is not ordinarily considered to be a matter addressed in a settlement.
For de minimis settlements and other settlements where the PRPs pay a
share of the specified costs, an item is addressed if it is included in the cost
total to which the parties' shares are applied. Other items whose costs
cannot be estimated at the time of settlement may be included in "matters
addressed" if the settlors pay a premium that reflects the risk that such costs
will ultimately be incurred.
Setdors in final RD/RA CDs usually bear the bulk of the site costs. In the
interest of fairness, it is likely diat they should receive contribution protec-
tion for all site costs, including those that may have been incurred by other
PRPs. So long as the costs borne by other PRPs are known or can be
reasonably estimated and were considered in determining how much the
final RD/RA setdors should be required to do and pay, those earlier PRP
costs should be included in "matters addressed" along with all of the United
States' costs. The definition of "matters addressed" in such a settlement
should include all anticipated costs and work.
In cases where it is not possible to conclude that setdors are paying an
appropriate portion of all costs, public and private, it may be appropriate to
limit "matters addressed" to costs reimbursed or work performed under the
decree or to list specifically the matters for which die settlor is to receive
contribution protection, including costs incurred by PRPs to the extent they
have been considered.
-------
8-17
In RD/RA settlements for only one of several Operable Units (OUs),
"matters addressed" are likely to be limited to the portion of the cleanup
which the settlors are performing or funding. However, if the settlor
conducts the entire remedy for a site through a series of OU decrees, the
final OU decree should use a definition of "matters addressed" equivalent to
what the senior would have received if it had performed the entire remedy
under one, final RD/RA decree.
In "past cost-only" setdements, the covenant not to sue covers past response
costs only. To prevent disputes regarding the parties' intentions as to the
scope of contribution protection, "matters addressed" should be narrowly
limited to the United States' past response costs. In some cases, such as
where prior setdors have already reimbursed part of the United States' past
costs, it may be appropriate to narrow "matters addressed" even further. In
these instances, "matters addressed" may be limited to past costs the settling
defendant has agreed to pay or to the United States' past costs that were not
reimbursed prior to any payments to be made under the decree.
In cashout setdements, "matters addressed" should reflect the scope of the
setdement. If the settlor's payment represents a reasonable contribution
toward all anticipated past and estimated future site costs, "matters ad-
dressed" should include all such response activities and costs. However, if
the settlor's payment was determined based on only a subset of site response
costs, only that subset is a matter actually addressed.
ATP setdements often represent a judgment of what is an appropriate
amount for a PRP with limited financial resources to pay. So long as cost or
work items are considered in die analysis of total anticipated costs used to
develop the judgement, they should be included in "matters addressed."
However, ATP settlements do not always address all site costs. In such
cases, a more limited definition of "matters addressed" will be appropriate.
In order to avoid any uncertainty arising from die overlap between the
definition of "matters addressed" and the standard reservations and
reopeners, which are not typically "addressed" by the settlement, language
indicating diat "matters addressed" in the setdement does not include these
reserved rights should be included. This language should be drafted to
require diat die United States invoke the reservation or reopener before a
contribution plaintiff can avoid the bar to contribution suits on the basis of
such reservation or reopener. Where CDs are not intended to provide broad
contribution protection, "matters addressed" should not overlap with
standard reservations and reopeners, and other special language should not
be needed.
Reference
DOJ/OSRE Memorandum, "Defining 'Matters Addressed' in CERCLA
Setdements" (March 14, 1997).
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8-18 RD/RA Negotiations/Settlement
8.2.B.5 Reopeners
8.2.C
Notification
of States
and Federal
Natural
Resource
Trustees
8.2.D
Special
Notice
Letters
8.2.D.1
Contents
Reopener provisions allow EPA to bring an administrative or judicial action
against a PRP for injunctive reliefer for additional response costs incurred
at the site when previously unknown conditions or information indicate
that the remedy is no longer protective of human health and the environ-
ment.
The operative principle is the development of new scientific information
that shows that the site presents a problem not addressed satisfactorily by
the remedy. This does not mean that the development of new remedial
technologies is a basis for reopeners.
Reference
OSWER Directive 9834.8, "C6venants Not to Sue Under SARA" (July 10,
1987).
Section 121(f)(l) of CERCLA provides for notice to die state of negotia-
tions. In addition, section 122(j)(l) requires that if a release or threat of
release at a site may have resulted in damages to natural resources under the
trusteeship of the United States, EPA must notify the appropriate federal
trustees and provide them widi an opportunity to participate in the negotia-
tions. The RPM is responsible for notifying the state and both the federal
and state trustees. Settlements that specifically provide for remediation of
natural resource damages, or determine that there were no such damages
and grant a covenant not to sue for natural resource damages, must be made
widi the agreement of the appropriate trustee. Resolution of these issues is
often important to PRPs who may decline to sign a decree without resolu-
tion. For furdier information on notification procedures and negotiation
interactions with federal and state trustees, see Chapter 5, RJ/FS Negotia-
tions/Settlement.
Section 122 of the Superfund Amendments and Reaudiorization Act
(SARA) authorizes EPA to issue SNLs to begin a formal negotiation period
widi the PRPs. It is EPA's policy to use CERCLA section 122(e) special
notice procedures whenever possible. The primary purposes of die special
notice procedures are to facilitate setdements for RD/RA through direct
negotiations widi PRPs and to expedite cleanups. Prior to issuance of the
SNL for RD/RA, PRPs should have been provided information on all PRPs'
involvement at die site and should be familiar widi die RI and remedial
alternatives.
The SNL should contain die following information:
• Notice of the potential liability of the PRP.
• Purpose of die SNL and die conditions of the negotiation morato-
rium.
• Description of future response actions, if known.
• Description of die elements of a GFO.
-------
8-19
• Statement of Work (SOW) to be performed.
• Additional information, including other PRPs' names and addresses,
feet sheets on the site, volumetric ranking of substances at the
facility, and a list of the volume and nature of substances contributed
by each PRP.
• Demand for payment of past costs.
• Date when a GFO is due.
The SNL should include as attachments a copy of EPA's Proposed Plan (or
the ROD, if signed), a draft CD for the RD/RA, and a draft RD/RA SOW.
To the extent possible, the SNL should contain specific information to assist
the PRPs in developing a GFO. This includes information stipulating the
minimum elements of an acceptable GFO and what the region will not
accept. Minimum requirements for GFOs are discussed later in this
chapter. Headquarters has developed model SNLs as samples for regions to
use at their discretion.
Regional counsel should notify die Chief of the Environmental Enforce-
ment Section at DOJ and provide a pre-referral litigation report 60 days
prior to issuing SNLs where settlement by CD is anticipated. A copy of die
pre-referral litigation package should be sent to OSRE. The memorandum
should include information about when the SNL will be sent and include
die draft CD for DOJ review. The draft CD also should be made available
for OSRE review, especially if it is anticipated diat die settlement will
require OSRE consultation or concurrence.
Copies of die SNL should be sent to die appropriate state representative, the
natural resource trustees, the regional AR coordinator, and OSRE (unless
the region has previously provided a copy of a GNL with the particular PRP
as a recipient). Regions will enter die PRP into CERCLIS 3/WasteLAN.
Reference
OSRE Memorandum, "Transmittal of Sample Notice Letters: 1) Demand;
2) General Notice; 3) Special Notice; and 4) Follow-Up 104(e)" (July 26,
1996).
8.2.D.2 Cost The negotiation process should include negotiations for any past costs, such
Recovery as costs of a removal or Fund-lead RI/FS. RPMs should refer to Chapter
12, Cost Recovery, for information on the different types of costs, which
include indirect, direct, pre- and post-SARA, and interest, and die required
documentation for recovering these costs. The RPM needs to request cost
documentation from the regional financial office at least 90 days in advance
of issuing the SNL. Once this documentation is received, die RPM should
provide it to die PRPs so that they will have EPAs cost information available
to them.
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8-20 RD/RA Negotiations/Settlement
8.2.D.3
Timing
the Special
Notice Letter
8.2.D.4
Section
122(a) Letters
8.2.E
Good Faith
Offer
The SNL should be sent between the time the draft Proposed Remedial
Action Plan and FS are released for public comment and when the ROD is
issued, or shortly thereafter (within 45 days). The timing strategy will strike
a balance between EPA's ability to conduct meaningful negotiations and
minimizing delay in implementing the RD/RA. It is not appropriate to
delay issuance of SNLs for months after the ROD. The negotiation sched-
ule should take into account any obligation of Fund monies for RD/RA
activity at the site. It should be noted that RD/RA negotiations with PRPs
that occur while the ROD is being written or amended may not address
matters related to the selection of the remedy.
Furthermore, negotiations must be conducted in a way that does not
undermine the public participation process. Because the Proposed Plan has
been released, the PRPs will be able to incorporate the possible range of
remedial alternatives into the GFO.
If EPA decides not to use the special notice procedure, the region must
notify the PRPs in accordance with section 122(a) of CERCLA, stating why
EPA has decided to forego the formal negotiation period. Situations in
which it would not be appropriate to use the special notice procedures,
because it would not facilitate agreement or expedite cleanup, may include
the following:
• Past dealings with the PRPs indicate that they are unlikely to negoti-
ate a settlement.
• EPA believes the PRPs have not been negotiating in good faith.
• No PRPs have been identified in a PRP search reviewed by the Civil
Investigator (CI) and regional counsel.
• The PRPs lack the resources to conduct response activities.
• There are ongoing negotiations with deadlines specified in a letter
(i.e., ongoing cases where negotiations would not be further expe-
dited by the SNL process).
If additional PRPs are identified after the issuance of SNLs, the RPM may
include them in ongoing negotiations or, if there is a partial settlement,
negotiate a separate agreement. This is a case-by-case decision. SNLs may
be sent for a single OU or for the entire RD/RA, depending on the remedy
documented in the ROD and regional policy.
References
OSWER Directive 9834.10-1A, "Model Notice Letters" (February 7,
1989).
OSWER Directives 9834.10, "Interim Guidance on Notice Letters, Nego-
tiations, and Information Exchange" (October 19, 1987)
PRPs are usually given 60 days from the special notice to provide the
Agency a good faith proposal for implementation of the RD/RA. The
following list of minimum requirements for GFOs should be used to help
maintain national consistency:
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8-21
8.2.F Negotiation
Extensions
• A statement of the PRP's willingness to conduct or finance the RD/
RA that is consistent with EPA's Proposed Remedial Action Plan (or
the ROD, if it has been issued), or that provides a legitimate basis for
further discussion. While a proposal with variations on EPA's
chosen/preferred remedy does not always mean that an offer is in bad
faith, it is at the very least not preferred. If, as a matter of course,
EPA frequendy reopens remedy discussions, there will be fruitless
negotiations and undue delays.
• A response to EPA's draft CD that identifies and prioritizes the major
concerns of the PRP and that provides site-specific justifications for
any changes proposed.
• A demonstration of the PRP's technical and financial capability to
perform die work, including a list of potential contractors and their
qualifications.
• A statement of die PRP's ability and willingness to reimburse EPA
for past response and oversight costs (or if not, a statement of why
referral to non-setdors is appropriate).
• A discussion of die PRP's position on release from liability and
reopeners to liability.
To encourage PRPs to submit acceptable GFOs, the RPM and regional
attorney must take an active role in educating die PRPs. Regional mini-
mum requirements for GFOs should be stipulated in detail in the SNLs.
The regional attorney should maintain frequent contact widi die PRPs or
steering committee representatives regarding development of a GFO.
References
OECA Memorandum, "Revisions to OECA Concurrence and Consultation
Requirements for CERCLA Case and Policy Areas" (September-30, 1998).
OSRE Memorandum, "Transmittal of Sample Notice Letters: 1) Demand;
2) General Notice; 3) Special Notice; 4) Follow-Up 104(e)" Quly 26, 1996).
OSWER Directive 9834.10-1A, "Model Notice Letters" (February 7, 1989).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotia-
tions, and Information Exchange" (October 19, 1987)
Issuance of the SNLs triggers a moratorium on EPA's conduct of certain
actions. The intent of the moratorium period is to place a statutory dead-
line on the formal negotiation period to encourage settlement. The initial
negotiation moratorium may last for a total of 120 days in RD/RA negotia-
tions. If EPA does not receive a GFO widiin 60 days of the issuance of
SNLs, the negotiation period will terminate. If a GFO is received, the
negotiations may continue for another 60 days. Firm negotiation schedules
should be developed quickly and adhered to in order to force issues to
resolution. If in exceptional cases negotiations must be extended beyond
120 days, prior written or oral approval of the RA or his/her delegate must
be obtained. Moratorium extensions from 181-240 days require Director/
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8-22 RD/RA Negotiations/Settlement
8.2.G Settlement
Incentives/
Disincentives
8.2.H CERCLA
Settlement
Policy
RSD approval and 241-300 day extensions require Director/OSRE ap-
proval. Requests for extensions from OSRE (including RSD) should be
made at least 14 days in advance of the expiration date of the negotiation
period.
References
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotia-
tions, and Information Exchange" (October 19, 1987)
OSWER Directive 9835-4, "Interim Guidance: Streamlining the CERCLA
Settlement Process" (February 12, 1987).
The settlement incentives/disincentives concept is an approach to RD/RA
settlements that indicates EPA's willingness to enter into partial setdements
with those willing to setde, particularly if diey will conduct the cleanup, and
EPA's willingness to pursue viable non-settlors for the remainder. The
concept does not apply to single owner/operator sites.
The setdement incentives/disincentives concept continues EPA's goal of
recovering 100 percent of site costs and preference for pressing for a close-
to-100 percent setdement widi some or all PRPs. Nonetheless, in some
multi-party cases where most viable PRPs are willing to setde but some are
not, as an incentive to diose willing to setde EPA may enter into a partial
setdement with die willing parties and pursue the remaining parties for die
remainder of the site costs. In determining how much the setdors should
pay, the interim CERCLA settlement policy should be applied. At a
minimum, the settlors usually should pay more than their volumetric share
to take into account non-viable parties, non-setdors, the orphan share
greater than 25 percent of die projected remedial costs, and evidentiary
deficiencies regarding viable non-setdors. Also, mixed funding, de minimis
setdements, and NBARs should be used in appropriate cases.
The setdement incentives/disincentives approach also recognizes die use of
disincentives in response to the use of dilatory tactics in negotiation and to
the refusal of all or some PRPs to settle. Section 106(a) UAOs are a power-
ful management tool to encourage panics that are somewhat willing to
setde but are delaying resolution of negotiations. More generally, section
106(a) UAOs are also a disincentive to non-settlement because failure to
comply widi diem may result in penalties under section 106 or treble
damages under section 107. Where diere is a partial setdement, it is very
important to file a lawsuit against non-settlors as soon as possible. In most
cases, diis will be a cost recovery action.
EPA's interim CERCLA setdement policy sets forth general principles
governing setdements widi private parties. The policy recognizes that die
objective of negotiadons is to collect 100 percent of cleanup costs from
PRPs. The policy also recognizes diat, in very limited circumstances,
exceptions to diis goal may be appropriate, and establishes criteria for
determining where such exceptions are allowed. The policy states 10 criteria
to be considered when negotiating settlements:
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5-23
Volume of Wastes Contributed to Site by Each PRP. The volume
of waste may contribute significantly and directly to the distribution
of contamination on the surface and in subsurface ground water. At
many sites, there will be wastes for which PRPs cannot be identified.
If identified, PRPs may be unable to provide funds for cleanup. The
volume of wastes is not die only criterion to be considered. There-
fore, it will be necessary, in many cases, to require settlement contri-
butions greater dian the apportioned percentage of wastes contrib-
uted by each PRP to the site.
Nature of Wastes Contributed. If a waste contributed by one or
more of die parties offering a settlement disproportionately increases
the cost of cleanup at die site, it may be appropriate for parties
contributing such waste to bear a larger percentage of cleanup costs
dian would be die case using a solely volumetric basis.
Strength of Evidence Tracing the Wastes at the Site to the Set-
tling Parties. Where the quality and quantity of the governments
evidence appears to be strong for establishing die PRP's liability, die
government should rely on the strengdi of its evidence and not
decrease die settlement value of its case. If the governments evi-
dence against a particular PRP is weak, that weakness should be
weighed in evaluating a setdement offer from that PRP.
Ability of the Settling Parties to Pay. Evaluation of die settlement
proposal should discuss die financial condition of die party and the
practical results of pursuing a party for more than die government
can hope to actually recover. Ability to Pay (ATP) setdement is
reserved for business PRPs who demonstrate that die amount sought.
by the government is likely to put diem out of business or otherwise
jeopardize dieir viability, and for both business and individual PRPs
who demonstrate diat payment of such an amount is likely to create
an undue financial hardship. See Chapter 12, Cost Recovery
("Ability to Pay").
Litigative Risks in Proceeding to Trial. Such risks include:
Admissibility of die governments evidence.
Adequacy of die government's evidence.
Availability of defenses.
Public Interest Considerations. For example, if die state cannot
fund its portion of a Fund-financed cleanup, a private-party cleanup
proposal may be given more favorable consideration dian one
received in a case where the state can fund its portion of cleanup
costs. Public interest concerns may be used to justify a setdement of
less than 100 percent only when diere is a demonstrated need for a
quick remedy to protect public healdi or die environment.
Precedential Value. Where die factual situation is conducive to
establishing a favorable precedent for future government actions,
setdement should be on terms most favorable to die government.
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8-24 RDIRA Negotiations/Settlement
8.2.1
Where PRPs will not settle on such terms, and the quantity and
quality of evidence is strong, it may be in the government's best
interest to try the case.
• Value of Obtaining a Present Sum Certain. The sum offered in
settlement may be, in reality, higher than the amount the govern-
ment can expect to obtain at trial.
• Inequities and Aggravating Factors. Analyses of settlement
proposals should flag for the decision makers any apparent inequities
to the setding parties inherent in the government's case, any apparent
inequities to others if the proposal is accepted, and any aggravating
factors.
• Nature of the Case that Remains After Settlement. All setdement
evaluations should address the nature of die case that remains if die
setdement is accepted. For example, if there are no financially viable,
liable parties left to proceed against for the balance of the cleanup
after the setdement, die settlement offer should constitute everything
the government expects to obtain at diat site.
References
OECA Memorandum, "General Policy on Superfund ATP Determinations"
(September 30, 1997).
OSRE Fact Sheet, "Existing Ability to Pay (ATP) Guidance and Models"
(May 1995).
OSWER Directive 9835-14, "Submittal of Ten Point Setdement Analyses
for CERCLA Consent Decrees" (August 11, 1989).
S6ttl6mGnt The negotiation team has several important settlement tools diat can help
Tools achieve PRP settlements. These include the following:
• Mixed funding agreements.
• De minimis settlements.
• "De micromis" setdements.
• NBARs.
• Orphan share compensation.
Each of diese settlement tools is discussed in detail in diis section.
In certain instances, Supplemental Environmental Projects (SEPs) may be
included in setdements widi PRPs and may lower die setdors' final settle-
ment penalty.
8.2.1.1
Mixed Funding
Settlements
Mixed funding agreements are generally setdements whereby EPA setdes
widi fewer dian all PRPs for less than 100 percent of die response costs and
there are additional measures to ensure that die response action will be
done. There are diree types of mixed funding setdements:
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5-25
• Preauthorization - Settling PRPs agree to conduct the response
action and the Agency agrees to pay for part of die response costs by
approving in advance die basic elements of a claim by setding PRPs
against die Fund.
• Mixed Work - PRPs conduct discrete pans of die response activity
while EPA conducts the remainder.
• Cashouts - Setding PRPs pay a portion of die response costs and die
Agency conducts the response action.
Once die PRPs have indicated dieir interest in pursuing a mixed funding
setdement, the region should evaluate the case against the 10-point settle-
ment criteria, which include, in diis context, die following:
• The level of PRP agreement with the remedy.
• Whether a substantial part of cleanup (> 50 percent) is offered by
setding PRPs.
• Whether the setdors' part of die cleanup is proportionate to or
greater than their combined allocation.
• The strength of die liability case against and viability of die PRPs
(setdors and non-settlors).
• The amount of waste contributed to die site by setdors and viable
non-settlors compared to dieir relative setdement share.
• Other available options if settlement fails.
The best candidates for mixed funding are cases in which die following
features are present:
• The potential portion or OU to be covered by die Fund is small, or
the setding PRPs offer a substantial portion of die total cost of
cleanup. In this context, substantial portion may be defined as a
commitment by die PRPs to undertake or finance a predominant
portion of the total remedial action.
• The government has a strong case against financially viable non-
setding PRPs, from whom the Fund portion may be recovered
through litigation.
Cases considered poor candidates for mixed funding have the following
features:
• The potential Fund portion is large (e.g., the potential settlors' offer
is insufficient).
• The case against the potential setdors is strong and the case against
die non-setdors is not strong, and thus litigation against the poten-
tial setdors is likely to be more successful than a mixed funding
setdement.
These factors do not automatically preclude mixed funding for a case. For
mixed funding to be seriously considered in such instances, however, other
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8-26 RD/RA Negotiations/Settlement
compensating factors must be present, such as the ability of the settlors to
initiate the response action more quickly than the government in a Fund-
financed action.
After the region completes an evaluation of the case and determines that it is
a good candidate for mixed funding, the RPM notifies OERR (if Fund
dollars are involved, as in preaudiorization), OSRE, and DOJ.
When developing cost allocations for mixed funding setdement proposals,
die Case Team should carefully evaluate the governmental contribution to
die cleanup or outstanding work and the strength of die case against non-
setdors, including an analysis of liability, viability, and amount contributed
to the site. The Case Team should be careful to avoid a proposal with a
fixed division of costs between the setdors and die government. This may
result in "over-subscription," where all PRPs or more PRPs than anticipated
accept EPA's proposed cost allocation. This could leave EPA widi an
unrecovered amount grossly disproportionate to die share of contamination
contributed by die pool of viable, liable non-setdors available for future cost
recovery actions. To avoid "over-subscription," die Case Team should
develop a sliding scale setdement proposal, where setdement amounts vary
depending on die volumetric percentage of PRPs signing on as setdors. The
work products of the Setdement Incentives/Disincentives Workgroup
contain further information on developing cost allocations for mixed
funding setdements.
The following secdons discuss the three types of mixed funding setdements
and factors to be considered in choosing a particular type of mixed funding
setdement.
Reference
OSWER Directive 9834.9, "Evaluating Mixed Funding Setdements"
(October 20, 1987).
8.2.1.1.1 Preauthorization "Preaudiorization" refers to the approval granted by EPA prior to cleanup
actions if a PRP claim against the Fund for response costs is to be consid-
ered. Preauthorization represents EPA's commitment dial, if response
activities are conducted pursuant to the setdement agreement and die costs
are reasonable and necessary, absent any shortfall in die Fund, die PRP will
be reimbursed from the Fund as set forth in die setdement.
The initial analysis is to determine whedier die site is a proper candidate for
a preauthorization mixed funding settlement. In addition to the points
listed above that identify potential candidates for mixed funding, die nature
of the proposed remedy and die PRPs ability to perform it should be
considered carefully in assessing a setdement offer that involves
preaudiorization. The size of die PRPs portion of cleanup responsibility
also should be considered. When PRPs commit themselves to pay for a
sufficiendy high percentage of cleanup costs, diey have a strong economic
incentive to keep actual response costs within or close to estimates. Addi-
tionally, the urgency of the threat posed by the site may influence the
decision to agree to preauthorization, if preaudiorization would expedite
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5-27
response activities. Prompt initiation of remedial action would be of
particular importance for sites diat are not currendy scheduled for full Fund
financing.
The preaudiorization agreement must be approved by OERR. The OERR
evaluation widi regard to preaudiorization is separate and distinct from the
evaluation of the setdement performed by OSRE. In preaudiorization
agreements, die PRPs prepare a preaudiorization proposal for regional
review. The RPM s early notification to OERR and OSRE of the PRPs
intention to pursue preaudiorization is crucial to the timeliness of Head-
quarters review of die proposal and the development of die Preaudiorization
Decision Document (PDD). After reviewing the setdement according to
the 10-point setdement criteria set forth in the Interim Settlement Policy,
the RPM forwards the preaudiorization proposal to OERR's Hazardous Site
Control Division, State and Local Coordination Branch, State Require-
ments Section, and OSRE's Regional Support Division. Both Headquarters
offices work joindy with the region in reviewing and approving the PRPs
submittal. The region must also notify DOJ and ensure diat die case is
entered into CERCLIS 3/WasteLAN.
The region should consider and plan for the amount of time necessary to
process preaudiorization applications and die urgency of site conditions
when conducting negotiations. Aldiough EPA has set a goal of completing
review of individual preaudiorization requests widiin a 45-day period, die
review time for submittals will vary.
Preaudiorization approval is documented in a PDD, which is prepared by
EPA. PDD contents include die following:
• A short history of contamination at the site, and the various efforts
to rectify the problem.
• A summary of the analysis performed by EPA in granting prior
approval.
• A summary of any issues unresolved at the time of PDD issuance.
• A statement of "terms and conditions" that the applicant must meet
for die preaudiorization to remain valid.
The PRP may not begin work until the PDD is effective. The PDD
becomes effective when it has been signed by die Director, OERR (by
delegation from the AA OSWER), and die CD has been entered. The
PDD describes standards to be met if the PRP is to receive full reimburse-
ment. In certain circumstances, a claim will be preaudiorized contingent on
later Agency approval of elements specified in die PDD.
Section 122(b)(4) of CERCLA states that, for cases involving
preaudiorization, the Fund will assume costs of remedy failure in a propor-
tion equal to diat contributed by die Fund for die original remedial action.
In the event of remedy failure, the Fund portion may be met either through
Fund expenditures or by recovering costs from PRPs that were not pan of
die original setdement. The covenant not to sue does not apply if the
remedy fails due to PRP negligence.
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8-28 RD/RA Negotiations/Settlement
8.2.1.1.2
Mixed
Work
Settlements
References
OSWER Directive 9225.1-03, "Regional Guidance Manual for the Re-
sponse Claims Process - Preauthorization PRP RD/RA" (March 1990).
OSWER Directive 9225.1-01, "Procurement Under Preaudiorization and
Mixed Funding" (April 19, 1989).
OSWER Directive 9834.9A, "Interim Policy on Mixed Funding Settle-
ments Involving the Preauthorization of States or Political Subdivisions"
(May 27, 1988).
Mixed work settlements allow EPA and the PRPs to conduct discrete
portions of the response activity. In mixed work settlements, EPA encour-
ages PRPs to conduct die RA. Mixed work settlements are appropriate in
cases where mixed funding is being considered and the following conditions
exist:
8.2.1.1.3
• The region is reasonably certain of PRP cooperation.
• Coordination of activities with PRPs does not present problems.
• The RPM can identify, in detail, individual activities for which each
party will be responsible.
In addition, CERCLA section 104(c)(3) requires that the state pay or ensure
payment of 10 percent of the Fund contribution to die RA, or 50 percent
or greater if it is a state-operated facility. The PRPs may enter into an
agreement with die state and EPA under state law and CERCLA where the
PRPs pay 10 percent to the state and the state obligates funds for use at die
site, or die state may use its own funds to pay for any portion of its share
that cannot be paid for by PRPs. In either case, EPA and the state should
enter into a State Superfund Contract (SSC) to ensure cost share and O&M
responsibilities. Mixed work and cashouts (discussed below) should not be
considered unless the state's cost share is reasonably certain.
Once mixed work is identified as a potential settlement alternative, OSRE
and DOJ should be notified.
Cashout Cashout settlements require die PRPs to pay for a portion of the response
Settlements costs up front, while EPA or odier PRPs conduct die response action.
Cashout settlements widi PRPs generally involve some of die following
factors:
• EPA is very confident about die expected RD/RA response costs.
• A Special Account will be created.
• The cashout will advance work at die site diat might not proceed
widiout die settlement funds.
• The percentage of die total costs to be paid by setdors is substantial,
unless diere are major liability or financial viability concerns.
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8-29
8.2.1.2
De Minimis
Settlements
8.2.1.2.1
Eligibility
Criteria
• The Agency has carefully evaluated evidentiary concerns regarding
liability and the value of the settlement and, in light of substantial
litigation risks, believes that setdement is warranted.
• Equitable considerations exist for both settling and non-settling
parties, including die nature of any covenants not to sue in the
cashout settlement.
• PRPs lack funds or die ability to secure competent technical support.
The RPM must notify OERR, OSRE, and DOJ of regional intent to
pursue a cashout setdement. Cashout settlements require concurrence of
the AA/OECA if total past and projected site costs exceed $100 million and
greater than $10 million is being recovered. They require consultation with
the Director/RSD at Fund-lead sites where die amount recovered is greater
dian $10 million. In general, cashout settlements may occur at any stage of
die remedial process. Once Fund-lead response activities are underway,
however, cashout setdement widi some of the PRPs may not be advanta-
geous, since cost recovery generally will be pursued once RA construction
commences. Cashout settlements may include a risk premium diat may
partially offset EPA's risk due to uncertainties, such as remedy failure or cost
overruns.
Unlike preaudiorization settlements, cashout setdements do not include
limitations to PRP liability for costs resulting from remedy failure. There-
fore, any future obligations must be specified in die cashout agreement,
including covenants not to sue.
References
OSWER Directive 9832.4, "Interim Cashout Procedures" (January 7,
1992).
A de minimis settlement is a final setdement between EPA and parties who
meet the requirements of section 122(g)(l) of CERCLA. It is noteworthy
that a de minimis setdement may be incorporated into a global agreement
between the major contributors and EPA. This is beneficial to major
contributors because de minimis money goes to pay for die response costs.
A PRP may setde zsa.de minimis party if all of the following are true:
• The setdement involves only a minor portion of die response costs at
die site.
• The amount of hazardous substances contributed by the individual
PRP is minimal in comparison to other hazardous substances at die
site.
• The toxic or other hazardous effects of those substances are minimal
in comparison to other hazardous substances at the site.
• Setdement is practicable and in die public interest. EPA should
evaluate the overall case for practicability, including die case against
viable non-de minimis parties who may challenge die setdement.
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8-30 RD/RA Negotiations/Settlement
8.2.1.2.2
Necessary
Information for
Contributor
De Minimis
Settlements
8.2.1.2.3
Potential
De Minimis
Sites
8.2.1.2.4 Communication
Strategies
A property owner also may settle as a de minimis party. Section
122(g)(l)(B) of CERCLA provides for de minimis settlements where the
owner of the real property at which the facility is located did not conduct or
permit the generation, transportation, storage, treatment, or disposal of any
hazardous substance at the facility, did not contribute to the release or threat
of release of a hazardous substance at the facility through any action or
omission, and the party had no actual or constructive knowledge that the
property was used for the generation, transportation, storage, treatment, or
disposal of any hazardous substance at die time of purchase.
In practice, de minimis settlements generally require all of the following:
• An assessment of the individual PRP's waste contribution relative to
die volume of waste at the site.
• Cost estimates for remedial activities at the site with a known degree
of uncertainty.
• Development of presumptive premiums for unknown costs and cost
overruns, generally 50 percent for settlements widi a remedy cost
reopener and 100 percent for settlements without a remedy cost
reopener.
• Identification of remaining viable parties.
Characteristics of potential de minimis sites include die following:
• Past and future costs have been identified and premiums have been
developed.
• De minimis payment and remaining liability are appropriate.
Sites that do not make good candidates for de minimis settlements include
those where some of die following are true:
• Poor volumetric or orphan share information is available.
• Costs are highly uncertain.
• Potential de minimis parties have not conferred widi major parties
and attempted to setde through diem.
• Potential de minimis parties are uncooperative in negotiations.
• There are no viable non-de minimis parties to undertake the response
action.
Certain communication strategies are recommended to aid in informing
and assisting de minimis parties who may be unfamiliar widi die Superfund
process. The following strategies should be used to ensure successful
communications with both de minimis and non-^ minimis parties prior to,
during, and following de minimis settlement negotiations:
• A "First Point of Contact" letter describing various elements of the
settlement process should be sent to potential de minimis parties.
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8-31
Formation of a de minimis group should be encouraged.
-^f minimis settlors should be actively involved in the settle-
ment.
• Use of Alternative Dispute Resolution (ADR) methods should be
considered.
• The "Superfund and Small Waste Contributors" brochure should be
included in die first mailings to de minimis PRPs, along with subse-
quent development and distribution of site-specific fact sheets.
• Public meetings may be held to inform parties about EPAs efforts to
setde widi small-volume waste contributors.
• The regional Office of Congressional and Legislative Affairs and
elected officials should be informed of impending de minimis
settlements.
• A press release may be issued to announce a successful de minimis
setdement and/or a hodine may be established to handle requests for
information about a particular site or setdement.
8.2.1.2.5 Timing Early de minimis settlements may be reached at die RI/FS stage, but most de
De Minimis minimis settlements have occurred at die ROD stage, when costs are known.
Consideration of a potential de minimis settlement includes the following:
• Refining the volumetric contribution taking into account the
proportion contributed by non-viable PRPs to all viable PRPs.
• Determining a volumetric cutoff.
• Refining cost estimates, including past costs, RI/FS, RD/RA,
oversight, and operation and maintenance costs.
• Developing a presumptive premium and/or reopeners to reflect die
uncertainties of cost estimates.
• Presenting die setdement offer, including die model CD or AOC, in
response to a PRP proposal or to initiate dialogue, and discussing
diis settlement offer widi potential de minimis and non-de minimis
parties. .
• Using the revised model de minimis contributor CD or AO to
implement early de minimis expedited setdements in accordance widi
die Superfund Administrative Reforms initiative.
8.2.1.2.6 Cost The need for cost reopeners is determined on die basis of die certainty of
Reopeners costs and use of premiums. In very early setdements (RI/FS stage), die
reopeners should be more expansive and/or die premiums should be more
substantial. Where a cost reopener may be appropriate, offering die poten-
tial setdors an option of either paying less and receiving a setdement diat
contains a cost reopener, or paying die higher premium for a setdement
widi no cost reopener should be considered. Cost reopeners should be
distinguished from die standard reopeners (pre- and post-certification)
found in most CDs.
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8-32 RD/RA Negotiations/Settlement
8.2.1.2.7
Finalizing
Settlement
8.2.1.3
'De Micromis"
Settlements
If terms are agreed upon by all parties, the final de minimis agreement can
be formalized through either an AOC or CD. A record supporting the
settlement must be developed. Consultation at the RSD Director level is
required for de minimis landowner settlements and for the first settlement in
each region involving "de micromis" parties. Additional cases are delegated
with Headquarters consultation retained. DOJ concurrence (and, on a CD,
signature) is required for de minimis settlements for sites where the Fund
response costs exceed $500,000.
"De micromis" settlements are a subset of de minimis settlements entered
under the de minimis settlement authority of section 122(g)(l)(A) of
CERCLA and, therefore, follow the de minimis settlement procedures
closely in matters such as necessary information for generator settlements,
potential setdor characteristics, and timing. "De micromis" settlements may
be available to parties who generated or transported a minuscule amount of
waste to a Superfund site, an amount less than the minimal amount nor-
mally contributed by de minimis waste contributors. "De micromis"
setdements should only be considered when it is found that a party who has
contributed minuscule amounts of waste is likely to be pursued by other
PRPs at the site. "De micromis" settlements are not available to owners or
operators of Superfund sites.
A PRP may settle as a "de micromis" party if all the following criteria are
met:
• The setdor meets die criteria listed for de minimis parties.
• The settlor is being threatened with litigation by private parties.
• The setdor meets the presumptive "de micromis" eligibility cut-off
levels:
0.002 percent of total site waste for hazardous substance con-
tributors.
0.2 percent of total site waste for MSW contributors.
110 gallons or 200 pounds when site-specific conditions warrant
an absolute volume cut-off.
References
OSRE/DOJ Memorandum, "Revised Guidance on CERCLA Settlements
widi De Micromis Waste Contributors" (June 3, 1996).
OSRE Memorandum, "Model CERCLA Section 122(g)(4) De Minimis
Contributor Consent Decree and Administrative Order on Consent"
(September 29, 1995).
OSRE Memorandum, "Standardizing die De Minimis Premium" (July 7,
1995).
OSRE Memorandum, "Office of Enforcement and Compliance Assurance
and Regional Roles in Civil Judicial and Administrative Site Remediation
Enforcement Case" (May 19, 1995).
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8-33
8.2.1.4 Non-Binding
Allocation of
Responsibility
OSWER Directive 9834.7-1 D, "Streamlined Approach for Settlements with
De Minimis Waste Contributors Under CERCLA Section 122(g)(l)(A)"
(July 30, 1993).
OSWER Directive 9834.7-1C, "Methodology for Early De Minimis Waste
Contributor Settlements Under CERCLA Section 122(g)(l)(A)" (June
1992).
OSWER Directive 9834.7-IB, "Methodologies for Implementation of
CERCLA Section 122(g)(l)(A) De Minimis Waste Contributor Setde-
ments" (December 20, 1989).
OSWER Directive 9835.9, "Guidance on Landowner Liability Under
Section 107(a)(l) of CERCLA, De Minimis Settlements Under Section
122(g)(l)(B) of CERCLA, and Settlements with Prospective Purchasers of
Contaminated Property" (June 6, 1989).
OSWER Directive 9834.7-1A, "Interim Model CERCLA Section 122 (g)
(4) De Minimis Waste Contributor Consent Decree and Administrative
Order on Consent" (October 29, 1987).
OSWER Directive 9834.7, "Interim Guidance on Settlements widi De
Minimis Waste Contributors Under Section 122(g) of SARA" (June 19,
1987).
A Non-Binding Allocation of Responsibility (NEAR) is an allocation of die
total costs of response among the PRPs at a facility. Section 122(e)(3) of
SARA allows EPA to develop NBARs and authorizes the Agency to provide
NBARs to die PRPs at its discretion. While NBARs may be useful, die
PRPs at multi-party sites usually undertake the allocation themselves.
NBARs are not binding on die government or die PRPs and may not be
admitted as evidence in court. The costs associated with Agency prepara-
tion of an NEAR are to be paid by die PRPs.
NEAR preparation depends primarily on die type and completeness of
volumetric data available at die site. The NBAR allocation process is based
primarily on the volume contributed by die PRPs, although other factors,
such as toxicity and mobility of the hazardous substances and relative
treatment costs, may be considered. The allocation process is dependent on
information collected during die PRP search.
The RPM and regional counsel have primary responsibility for developing
NBARs. NBARs may be prepared if requested by a substantial percentage
of die PRPs. When prepared, NBARs are usually developed toward die end
of die RJ/FS, but timing may vary. NBARs may be provided to die PRPs
after completion of die RI/FS. PRPs may use NBARs to reach agreement
among themselves regarding negotiating positions with EPA. EPA has
developed NBARs to facilitate setdements in a few cases (e.g., Resolve in
Region 1 and Hassayampa in Region 9).
The NBAR allocation to each PRP may differ from die volumetric ranking
presented in SNLs. In SNL volumetric rankings, die volume each PRP
contributed is presented widiout adjustments. In NBARs, volume from
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8-34 RD/RA Negotiations/Settlement
non-viable parties and orphan shares is distributed among the known viable
PRPs. This adjusted figure is further modified in light of the following
settlement criteria:
• Strength of the evidence against the PRPs.
• Ability of the PRPs to pay.
• Litigative risks in proceeding to trial.
• Value of obtaining the present sum certain.
• Inequities and aggravating factors.
• Nature of the post-settlement case.
Reference
OSWER Directive 9839.1, "Interim Guidelines for Preparing Non-Binding
Preliminary Allocations of Responsibility" (May 16, 1987).
8.2.1.5 Orphan Share At sites where there is an orphan share component, compensation should be
Compensation made to those PRPs who are willing to perform the cleanup of the site.
Policy Orphan share compensation is generally made through settlements such as
RD/RA CDs or Non-Time-Critical (NTC) removal AOCs/CDs, but can be
made on a discretionary basis through cost recovery settlements. This
compensation is necessarily subject to the adequacy of funding of the clean-
up program. Therefore, the Agency has limited orphan share compensation
to 25 percent of die projected cost of the remedial action at the site.
The orphan share is that share of responsibility which is specifically attribut-
able to identified parties EPA has determined to have each of the following
characteristics:
• The party is potentially liable.
• The party is insolvent or defunct.
• The party is unaffiliated with any party potentially liable for response
costs at the site.
This definition of orphan share does not include die following:
• Unallocable waste.
• The difference between a party's share and its ability to pay.
• Shares attributable to "de micromis" contributors, MSW contribu-
tors, or certain lenders or residential homeowners diat EPA would
not ordinarily pursue for cleanup costs.
Compensation for the orphan share component of the federal compromise
should be maximized as long as it does not exceed any of die following:
• The orphan share.
• The sum of all unreimbursed past costs and EPA's projected future
costs of overseeing die design and implementation of die ROD
remedy or NTC removal costs.
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8-35
• Twenty-five percent of the projected ROD remedy or NTC removal
costs at the site.
Regions may, at their discretion, decide that compensation less than the
maximum amount is appropriate after consideration of equitable factors,
including the following:
• Fairness to other PRPs, including small businesses, MSW parties,
small volume waste contributors, and certain lenders and
homeowners.
• PRP cooperation.
• The size of the orphan share.
References
OECA Memorandum, "Addendum to the 'Interim CERCLA Settlement
Policy' Issued on December 5, 1984" (September 30, 1997).
OSRE Memorandum, "Interim Guidance on Orphan Share Compensation
for Settlors of Remedial Design/Remedial Action and Non-Time-Critical
Removals" (June 3, 1996).
8.2.1.6 Special Special accounts are site-specific, interest bearing subaccounts created
Accounts within the Superfund Trust Fund. EPA is authorized by CERCLA section
122(b)(3) to retain and use monies received from PRPs to carry out re-
sponse actions determined in setdement agreements dirough the creation of
special accounts. This enables EPA to use special account funds and interest
earned for Fund-financed cleanup at a site, or for disbursement to PRPs
agreeing to perform response actions through a setdement agreement.
special accounts provide EPA with more flexibility in setding die response
costs diat performing PRPs are required to pay, and promote fairness by
providing a way for small and/or non-performing parties to contribute to
response costs without long-term involvement. Regions are required to
separately identify payments for past and future response costs because only
funds paid for future costs can be placed in special accounts. Special
accounts provide the following advantages: accounts can be established and
accessed quickly; interest earned can be credited towards response costs or
disbursement; account funds retain site-specific designations; and funds can
be used by EPA without an annual congressional appropriation. Special
account funds may be designated for response actions such as the following:
• Actual cleanup activities.
• EPA oversight costs.
• A work takeover by EPA if the PRP fails to perform response efforts.
• Cleanup at additional OUs at die site.
• Pursuit of non-setdors.
• Cost overruns or remedy failure.
To receive a special account disbursement, PRPs must agree to perform
response actions pursuant to a setdement agreement such as an AOC or a
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8-36 RD/RA Negotiations/Settlement
CD. EPA will not provide special account funds to PRPs performing
response actions pursuant to a UAO. Disbursements should follow written
certification by EPA of PRP completion of work at a site. If cleanup work
is performed in phases, disbursements following completion of phases of
response work are an acceptable alternative to disbursement after comple-
tion of all work. Phased disbursements should be made in conjunction with
major PRP performance milestones such as RD completion.
A settlement agreement that includes disbursement of special account funds
should contain certain minimum terms to ensure consistency and proper
administration of disbursements. These provisions include the following:
• Identification of the special account.
• Documentation and certification that must be submitted to EPA by
the setding party to receive a disbursement.
• Timing and amount of special account disbursements.
• Termination of disbursements.
• Recapture of disbursements.
• Transfer to the Fund of funds remaining in the special account after
completion of the response action.
• Covenant not to sue the United States.
Further description of these elements can be found in the "Interim Final
Guidance on Disbursement of Funds from EPA Special Accounts to
CERCLA Potentially Responsible Parties" (November 3, 1998).
With the exception of disbursements agreed upon in settlements, it is
Agency policy to transfer all special account balances to the Fund when a
balance remains in a special account due to overestimation of future re-
sponse costs, or when funds held in reserve are not used. This transfer
should take place once PRPs have completed response actions and EPA has
liquidated all other obligations. Termination of disbursement may occur for
various reasons such as the trigger of a settlement provision for EPA work
takeover or work stoppage, or Agency determination of false, inaccurate, or
incomplete PRP submission of response information. In all instances, once
termination occurs, no further disbursements will be made under the
original agreement.
References
OSRE Memorandum, "Interim Final Guidance on Disbursement of Funds
from EPA Special Accounts to CERCLA Potentially Responsible Parties"
(Novembers, 1998)
OSRE/Office of the Comptroller, "Update and Implementation of the
Superfund Reform on Special Accounts" (February 7, 1997)
OSRE Memorandum, "Transmittal of Special Account Short Sheet" (March
27, 1996).
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5-37
8.2.J
Processing
Final
Settlements
8.2.K
Referral
Package
In order to finalize a settlement within established timeframes, it is impor-
tant to negotiate during the first 60 days after SNLs are issued rather than
wait for the GFO before negotiating. Once the GFO has been received, the
negotiation team and die PRPs should move quickly to finalize a settlement.
Historically, die most successful method of finalizing a setdement has been
for die government (EPA/DOJ) to develop iterative drafts of the CD that
show changes on which PRPs comment. This process provides rapid
identification of major substantive issues requiring review by odier layers of
management or more extensive discussion.
It is very important to have die drafts reviewed quickly by all parties because
of die tight negotiation deadlines. It is important to establish and adhere to
deadlines. Section 106(a) UAOs, especially widi delayed effective dates, are
an effective tool in driving PRPs who have considerable interest in doing die
work but are delaying negotiations to perform die RD/RA.
The RA, in consultation with DOJ, is expected to be die primary decision
maker on CERCLA setdement issues. Headquarters and regional authority
for finalizing setdements is discussed in die first section of diis chapter.
While die settling PRPs are in die process of signing die CD, die RPM and
regional counsel must prepare a referral package for formal transmittal of
die agreement to DOJ. If the settlement has not been delegated, die goal is
to ensure rapid concurrence from OSRE on the referral package. The
referral package must include the following:
• 10-point setdement document.
• Draft complaint.
• Signed CD (including the technical attachments, such as the SOW).
The DOJ referral package should identify the relief outstanding, including
any past costs, and set forth a strategy for pursuing non-settlors. It should
also identify non-setdors and assess their liability, their contributions to the
site, both individually and as compared to die setdors (with backup and
including percentages), and their ability to pay. If costs are to be written off
or not pursued, die rationale must be documented. Additionally, OSRE
and DOJ should be notified of the referral and any non-settlors that will
remain after settlement.
The RPM must also identify die resource needs for oversight of the RD/RA
and begin preparations to obtain a third party RD/RA oversight contractor.
For RD/RA setdements that are delegated to the regions, the completed
referral package must be sent to DOJ, with a copy to OSRE. The prepara-
tion of the final referral package should take approximately 45 days. The
final referral package must be signed by the RA. For non-delegated settle-
ments, the setdement is sent to OSRE with a copy to DOJ. OSRE must
formally approve the CD, which is then sent to DOJ. After DOJ formally
receives the CD, DOJ concurs on the CD and lodges it in court. DOJ
must also provide notice of die decree in the Federal Register for a 30-day
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8-38 RD/RA Negotiations/Settlement
8.2.L Inducements
to
Non-Settlors/
Enforcement
Options
8.2.L.1 Section
106(a)
Unilateral
Administrative
Orders
public comment period. The negotiation team is responsible for preparing
EPA's responsiveness summary to public comments. Non-settlors and other
members of the public may object to die settlement through adverse
comments. The negotiation team should try to anticipate these objections
in order to minimize complications widi the court. The court will review
the public comments and EPA's responses before deciding whether to
approve the settlement. Upon approval, the decree is entered as a final
judgment of the court. Exhibit 8-5 diagrams a suggested timeline for pre-
referral negotiation procedures.
Where OSRE has a consultation role, the draft package should be submit-
ted to OSRE for review. The final package, however, is not required to
physically pass through the concurrence chain.
If negotiations for PRP implementation of the RD/RA do not result in
setdement, the Agency has several enforcement options. The region may
issue a section 106(a) UAO, compelling the PRPs to implement the RD/
RA. The region also may choose to litigate the case under section 106 of
CERCLA. Section 106(a) UAOs generally precede section 106 referrals.
EPA also may use die Fund to implement die RD/RA, then DOJ may sue
PRPs for cost recovery under section 107 of CERCLA. If there is a partial
setdement, depending on die nature of die outstanding relief, the govern-
ment may use section 106 or section 107 authorities. Sample language for
UAOs to be issued to parties expected to comply and parties not expected
to comply can be found in the attachments of the memorandum, "Trans-
mittal of Sample Documents for Compliance Monitoring" Quly 1> 1996).
The Regional Administrator is authorized to issue section 106(a) UAOs to
compel the PRPs to implement the RD/RA. PRPs have a strong incentive
to comply, since sections 106 and 107 authorize a court to assess penalties as
well as treble damages for non-compliance widiout sufficient cause. Section
106(a) UAOs require a showing of imminent and substantial endanger-
ment.
The region should be prepared to issue a UAO if the PRPs fail to provide a
good faith setdement offer by the end of the first 60 days of the special
notice moratorium, or if it is clear that no setdement will be achieved in the
negotiation timeframe allowed. In addition, unless an extension of the
negotiation period beyond the 120 day moratorium is justified by an
agreement in principle and substantial progress in finalizing a CD, a
planning goal should be to issue a UAO promptly after the 120 day morato-
rium expires.
If regions are planning to use Fund monies to finance an RD or an RA start
at a site, they should consult with OSRE and describe their reasons for not
issuing a UAO to the PRPs.
The issuance of unilateral orders must be considered before a Fund-financed
response proceeds at a site. Typically, UAOs should be issued at the end of
the special notice period if setdement is not reached at a site, an extension
of negotiations is not warranted, and the case meets statutory criteria and
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8-39
case-specific considerations. If negotiations are extended, then issuance of a
unilateral order with a delayed effective date, commencing at the end of the
extension period, should be considered.
When determining who should be included in a UAO, the region should
start with the presumption that all PRPs should receive the UAO. It can
dien exclude specific PRPs if an appropriate reason for exclusion exists.
Agency policy specifies only a few reasons that regions may properly cite to
justify the exclusion of a PRP from a UAO:
• Weakness in the evidence of the party's liability.
• A financial inability of the party to contribute to the cleanup.
• A relatively minor contribution by the PRP to the site conditions.
• Prior agreement of the PRP to bear its "fair share" of the cleanup.
• Manageability concerns raised when a region decides it cannot
readily handle all of the remaining PRPs given its limited resources.
Regions face three separate documentation requirements relating to equi-
table issuance of UAOs. The first requirement calls for regional staff to
document their reason(s) for proposing that certain PRPs be excluded from
a UAO to be issued. "In justifying an exclusion, staff may, for example,
discuss the de minimis amount of waste sent by a particular PRP, concerns
about the strength of EPA's evidence against a certain party, or the party's
weak financial status. This documentation should be set forth in the UAO
package submitted to the regional decision maker so that senior manage-
ment is aware of, and concurs in, the exclusion of these PRPs. The second
requirement calls for regions to confirm in writing diat they have not
identified any other PRPs in cases where they report that no PRPs were
excluded from the order. For example, if a region determines that there is
only one PRP for a site, it must document this determination when it
prepares a UAO for that PRP. Finally, the third requirement applies to
decisions not to issue UAOs to late-identified PRPs, i.e., PRPs who are
identified after other PRPs assume the obligation to conduct the cleanup.
When a region identifies a PRP at such a stage, it should consider issuing a
UAO requiring the respondent to Participate and Cooperate (P&C) with
the other PRPs. Sample language for a P&C order can be found in the
attachment to the July 1, 1996 "Transmittal of Sample Documents for
Compliance Monitoring." In seeking regional management's approval not
to issue a P&C order to a late-identified PRP, the regional staff should
document its rationale for non-issuance. For all three requirements, a copy
of the required documentation should be submitted to OSRE no later than
two weeks after issuance of the UAO (or the decision not to issue a UAO).
References
OSRE Memorandum, "Transmittal of Sample Documents for Compliance
Monitoring" (July 1, 1996).
OSWER Directive 9833-0-2(b), "Model Unilateral Administrative Order
for Remedial Design and Remedial Action Under Section 106 of CERCLA"
(March 30, 1990).
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8-40 RD/RA Negotiations/Settlement
OSWER Directive 9833.0-la, "Guidance on CERCLA Section 106(a)
Unilateral Administrative Orders for Remedial Designs and Remedial
Actions" (March 7, 1990).
8.2.L.2 Enforcement Under a joint and several liability scheme, the Agency has discretion when
Discretion deciding whom to pursue in an enforcement action. Examples of the use of
"enforcement discretion" include the following:
• The July 1991 "Policy Toward Owners of Residential Property at
CERCLA Sites" states that enforcement actions generally will not be
taken against owners of residential property located on Superfund
sites. A potential exception to this policy would be if a homeowner's
activities resulted in a release of a hazardous substance.
• Where hazardous substances have come to be located on or in a
property solely as the result of subsurface migration in an aquifer
from a source or sources outside the property, EPA generally will not
take enforcement action against the owner of such property to
require the performance of response actions or the payment of
response costs.
• EPA's policy addressing municipalities and municipal wastes contains
two primary themes:
EPA generally will not pursue generators and transporters of
primarily MSW and sewage sludge, but will make settlements
with such parties available at co-disposal landfills, if requested.
Such settlements generally will be based on the unit cost of
$5-30 per ton.
Municipalities named as PRPs will be treated in the same way as
private parties in the settlement process, unless a municipality is
an owner or operator of a co-disposal landfill. At co-disposal
landfills, EPA generally will seek 20 percent of site response costs
from the municipal owner/operator. In some cases, EPA may
offer settlements varying from the 20 percent presumption, but
generally will not seek more than 35 percent of site costs. In all
cases, municipal owners/operators who are unwilling to settle
with EPA are subject to joint and several liability at the site.
• An agreement with a covenant not to sue a prospective purchaser
may be considered if it will have substantial benefits for the govern-
ment and if the prospective purchaser satisfies other criteria. EPA
may reject any offer if it determines diat entering into an agreement
with a prospective purchaser is not sufficiently in the public interest
to warrant expending the resources necessary to reach an agreement.
• EPA policy states that "de micromis" parties, who have contributed
only a minuscule amount of waste to a site, should not participate in
financing the cleanup. Therefore, "de micromis" settlements may be
effected without any exchange of money.
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8-41
8.2.L.3
Section 106
Litigation
8.2.L4
Fund
8.2.L.5
Partial
Settlements
References
OSRE Memorandum, "Policy for Municipality and Municipal Solid Waste
CERCLA Settlements at NPL Co-Disposal Sites" (February 5, 1998).
OSRE/DOJ Memorandum, "Revised Guidance on CERCLA Setdements
with De Micromis Waste Contributors" (June 3, 1996).
OECA Memorandum, "Guidance on Agreements widi Prospective Purchas-
ers of Contaminated Property" (May 24, 1995).
OSRE Memorandum, "Policy Towards Owners of Property Containing
Contaminated Aquifers" (May 24, 1995).
OSWER Directive 9834.6, "Policy Toward Owners of Residential Property
at Superfund Sites" (July 3, 1991)
OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements
Involving Municipalities and Municipal Wastes" (December 6, 1989).
The Regional Administrator may decide to refer a case to DOJ for section
106 litigation. The region must prepare a referral package for such cases.
The referral package is similar to that described in Chapter 12, Cost
Recovery.
Section 106 litigation also requires that the Agency prove that the site
constitutes an imminent and substantial endangerment to human health or
the environment. This standard may be met using data from the risk
assessment created as part of the RI.
Reference
OE/OSWER Memorandum, "Strategy for CERCLA Section 106 Litigation
Support" (January 28, 1991).
The use of the Fund to implement the RD may be limited by regional
availability of Fund monies. If die PRPs have been recalcitrant or the region
has decided to fund the RD if die negotiations fail, advance planning is
crucial. A "planned obligation" must be targeted in the Superfund Compre-
hensive Accomplishments Plan (SCAP) in the fiscal year negotiations where
the obligation is targeted. This target is counted against the region's total
Fund budget. In some cases, die scheduled initiation of Fund-financed
activity may encourage recalcitrant PRPs to setde.
The application of the setdements incentives/disincentives concept may
result in a partial setdement for less than full relief. If some or all past costs
are deferred to non-setdors, EPA may pursue them under section 107.
Under mixed funding settlements, the recalcitrant PRPs may be held liable
for die Agency's costs in implemenung the RD and RA, RD/RA oversight
costs, and past costs.
If die CD covers less than all the remedial work, EPA may "carve out"
discrete portions of the remedy for which recalcitrants may be held liable.
-------
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8-43
OSRE Memorandum, "Drafting Guidance for Revised Interim Supplemen-
tal Environmental Projects Policy" (August 1995).
OSRE Memorandum, "Standardizing the De Minimis Premium" Quly 7,
1995).
OSRE Fact Sheet, "Existing Ability to Pay Guidance and Models" (May
1995).
OSRE Memorandum, "Interim Revised EPA Supplemental Environmental
Projects Policy" (May 8, 1995).
OWPE/OE Memorandum, "Communications Strategy for Settlements
with Small Volume Waste Contributors" (September 30, 1993).
OSWER Directive 9834.7-ID, "Streamlined Approach for Settlements with
De Minimis Waste Contributors under CERCLA Section 122(g)(l)(A)"
(July 30,1993).
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8—44 RD/RA Negotiations/Settlement
8.3
8.3. A
Planning and Reporting Requirements
Budget The RPM should be involved in the development of budget estimates for
post-RI/FS support needs. Post-RI/FS budget needs include RD/RA
negotiations, referral development, and litigation support. The standard
budgets for the support activities are the following:
8.3.B Reporting
Requirements
RD/RA negotiations:
(for three quarters)
Referral development:
(for three quarters)
Litigation support:
(for ongoing quarters)
$24,000
$15,000 for 106, 106/107
$20,000 for 106, 106/107 Litigation
• RD/RA Oversight $37,500 per quarter
(four quarters for RD,
six quarters for RA)
Headquarters and the regions have formed a workgroup which will assess
pricing issues and recommend new pricing guidelines. The primary con-
tract vehicle for RD/RA negotiations support is Enforcement Support
Services (ESS) contracts. The primary contract vehicle for RD/RA over-
sight is Remedial Action Contracting Strategy (RACS).
The negotiation team should see if RD and/or RA funding from Superfund
is available as an option to be used if negotiations fail. Since the potential
demands on the Fund exceed its size, monies may not be available to initiate
Fund-financed activity. For example, RA funding will first require ranking
to determine eligibility and position in the RA prioritization queue. If
funds are available, monies will be committed for die fiscal quarter in which
negotiations are scheduled to conclude. Initiation of Fund-financed activity
should be planned in the fiscal year preceding the scheduled activity, due to
the potentially large amount of money required for RD and RA activities.
The availability of Fund money to implement the RD and RA is a valuable
tool to force the PRPs to negotiate.
The RPM must review and update the information in EPA's automated data
systems as events happen. That is, events should be tracked in the data base
on a real time basis. Depending on the region, RPMs are responsible for
entering accurate information into CERCLIS 3/WasteLAN or providing
that information to the Information Management Coordinator (IMC) for
entry into CERCLIS 3/WasteLAN. The RD/RA negotiation milestones
(actual start date, date of issuance of special notice) must be entered into
CERCLIS 3/WasteLAN. A matrix of SCAP targets relevant to RD/RA
negotiations is presented as Exhibit 8-6.
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8-45
8-6 SCAP Targets for RD/RA Negotiations
Activity
RD/RA Negotiation
Start
RD/RA Negotiation
Completion
SCAP
Target/Measure
X
X
Quarterly
Target
X
X
Annual
Target
X
X
RD/RA negotiations start when one of the following occurs:
• The first SNL is signed.
• A section 122(a) waiver of SNL is signed.
If the region does not plan to conduct RD/RA negotiations, dates should
not be entered into WasteLAN. Planning for the start of RD/RA negotia-
tions is site-specific. This is a SCAP target.
RD/RA negotiations end when one of the following occurs:
• A signed CD (section 106 or 106/107 referral with settlement) for
RD/RA and 10-point analysis are referred by the region to either
DOJ or OSRE.
• A section 106 or 106/107 injunctive referral to compel the PRPs to
perform the RD/RA is referred to DOJ or OSRE. (OSRE prefers
that a UAO be issued prior to initiating an injunctive referral.)
• A UAO for RD/RA or RA only to initiate site work is signed by the
Regional Administrator (RA).
• EPA and PRPs proceed to trial under an existing case.
• An AOC for RD only is signed by the RA.
• Funds are obligated for a Fund-lead RD.
• If RD funds are not available, and the region decides that a UAO is
not appropriate, and OSRE concurs with this decision in writing,
the negotiation completion date is the date of the OSRE memoran-
dum concurring with the regional decision.
The negotiation completion date is the date on the transmittal letter for the
CD, die date on the transmittal letter widi the injunctive referral, the date
die UAO is signed by the RA, the date die trial begins, the date funds are
obligated, or die date on the OSRE memorandum. RD/RA negotiation
outcomes are SCAP targets planned site specifically in WasteLAN.
A matrix of SCAP measures relevant to RD/RA negotiation outcomes is
presented as Exhibit 8-7
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8-46 RD/RA Negotiations/Settlement
8-7 SCAP Measures for RD/RA Negotiation Outcomes
Activity
Section 106, 106/107
Case Resolution
De minimi's Settlements
and Number of PRPs
(S/E-3a)
Mixed Funding Settlements
State Consent Decree (CD)
SCAP
Plan/Report
X
X
X
X
Quarterly
X
X
X
X
Annual
X
X
X
X
The following are definitions for RD/RA negotiations outcomes:
• Section 106, 106/107, 107 Case Resolution - Case resolution is
the conclusion of a section 106, 106/107, or 107 judicial action by a
full settlement, a final judgment, a case dismissal, or a case with-
drawal. Credit for case, resolution is given when one of the following
occurs:
A CD is entered in the court fully addressing the complaint with
all parties.
The case is withdrawn or dismissed.
A trial is concluded and a judgment is entered fully addressing
the complaint.
The case resolution date (activity actual completion date) is the same
as the milestone date and is defined as one of the following:
The date the CD is entered.
The date the case is withdrawn.
The date the case is dismissed.
The date the judgment is entered.
This is a SCAP reporting measure.
• Mixed Funding Settlements - Administrative or judicial settlements
under section 106 or 106/107 and section 122(b)(l) of SARA.
There are diree types of mixed funding settlements:
preaudiorization, mixed work, and cashout.
This measure includes mixed funding settlements in the form of a
CD or AOC between EPA and the PRPs. Credit for the CD is the
date on the RA's memo transmitting the referral to OSRE or DOJ as
recorded in WasteLAN. Credit for the AOC is based on the date it
is signed by the RA as recorded in WasteLAN.
• State CD for RD/RA - Judicial agreement between the state and the
PRPs fully or partially setding a claim under CERCLA. The settle-
ment may be for response work, or both response and cost recovery
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8-47
work. Credit for this accomplishment is given the date the state CD
is signed by the last state official or party. All WasteLAN coding
requirements for CDs apply. The enforcement activity type should
be State Decree and the date should be reported in the actual
completion date field. In addition, the remedy field must denote
that the CD was issued for RD and/or RA. This is a SCAP reporting
measure, not a targeted activity.
• De Minimis Settlements and Number of PRPs - This addresses
administrative or judicial settlements that were reached solely under
section 122(g) of CERCLA, with PRPs who qualified as de minimis
parties. This settlement involves the established de minimis portions
of die response costs at the site and is embodied in a CD or an AOC.
If the Fund response costs at the site exceed $500,000 (excluding
interest), the AOC can only be issued with prior written DOJ
approval. If DOJ neither approves nor disapproves the AOC within
30 days, the AOC is considered approved and can be issued. (DOJ
and the RA can agree to extend this 30-day period).
Credit is given for a final settlement when an AOC is signed by the
RA or when the RA signs the memo transmitting die CD to OSRE
or DOJ. The number of PRP signatories to each settlement also
must be reported. The settlement category for de minimis must be
entered into WasteLAN.
Reference
OSWER Directive 9200.3-14-1D, Superfund/OilProgram Implementation
Manual (updated biennially).
SCAP/OIL Quick Reference Coding Guide.
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8-48 RD/RA Negotiations/Settlement
8.4
8.4.A
Poor
Relations
Among the
PRPs
8.4.B
Multiple
Revisions to
Draft
Consent
Decree
Potential Problems/Resolutions
This section addresses some of the common problems that arise during RD/
RA negotiations. While each region has different methods of resolving
these problems, this section discusses some of the more effective regional
experiences.
The RPM and regional counsel should help die PRPs to coalesce into a
steering committee. A steering committee, in addition to other advantages,
is a useful organization for resolving antagonisms that can arise between
PRPs, especially at large sites, during the remedial process. The RPM and
regional attorney should also recommend the use of Alternative Dispute
Resolution (ADR) methods to assist the PRPs in resolving their disputes.
Use of ADR can have die following benefits:
• ADR typically reduces transaction costs for dispute resolution.
• ADR tends to focus mediated negotiations on resolving real issues,
radier dian posturing, and is less likely to get derailed by personality
conflicts.
• In ADR mediation, parties are more likely to identify settlement
options diat are tailored to their particular needs.
• ADR alleviates time-consuming burdens placed on EPA for organiz-
ing negotiations, particularly in multi-party cases, because a neutral
diird party is available to handle diese responsibilities.
A fact sheet is available diat contains a detailed description of die ADR
process. Information discussed in the fact sheet includes an ADR nomina-
tion memoranda and information on ADR specialist consultation and ADR
funding.
Should efforts to achieve cooperative consensus prove unsuccessful, mixed
funding may be appropriate if the great majority of parties are cooperative
and only a minority are recalcitrant.
Reference
OSRE Memorandum, "Use of Alternative Dispute Resolution in Enforce-
ment Actions" (May 1995).
Disagreements over specific language may cause numerous revisions in the
draft CD and delays in the negotiations. The Agency's policy is diat strict
negotiations deadlines help force the PRPs to settle on language to be
included in die CD. Regional and DOJ insistence.diat settlements adhere
strictly to model language, unless a strong justification can be presented for
not doing so, also aids in bringing negotiations to a close. To avoid delays,
the negotiation team should insist on short deadlines on revisions to CD
drafts. Furthermore, weekly or biweekly meetings with die PRPs are
advised. These meetings should be scheduled well in advance, so diat all
parties are aware of the schedule for preparing revised drafts of the CD.
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8-49
8.4.0
Settling with
Major
Contributors
at
De Minimi's
Settlement
Sites
8.4.0
Use of Public
Relations
8.4.E
Inadequate
PRP Searches
In some situations, major contributors to a site may be reluctant to negoti-
ate RD/RA settlement terms after some PRPs have settled early under de
minimis provisions. The Case Team may be able to avoid conflict with
major parties by soliciting settlement proposals from them prior to finaliz-
ing settlement terms with de minimis PRPs. Additionally, the negotiation
team may find it beneficial to explain the following advantages of de
minimis settlements to the major parties:
• In cases where there are numerous PRPs, it may not be practicable
and in the public interest to sue all small parties. Early de minimis
setdements, dierefore, may save major parties the expense and time
of litigation.
• EPA will require premiums from de minimis settlors.
• Monies from early de minimis setdements may provide start-up funds
for major-party conduct of RD/RA activity.
It also may be helpful for the negotiation team to keep die major party
steering committee advised of die status of de minimis setdement negotia-
tions.
Effective use of die media may increase die impact of settlements on die
PRP community by providing examples of PRP participation in setde-
ments. Publicizing PRP participation in settlements creates an incentive for
future PRP participation in odier setdements and enhances die public
policy implications of setdements, dius providing PRPs with a policy
rationale for dieir efforts. Additionally, press coverage of critical pre-
setdement actions (e.g., issuance of special notice, commencement of
negotiations) may be an effective tool in creating pressure on PRPs to setde
expeditiously and cooperatively. RPMs should identify sites as candidates
for die use of public relations tools as early as possible and enlist the assis-
tance of Regional Office of Public Affairs staff.
Negotiating PRPs may be less willing to setde when some of die PRPs at die
site have not been identified or evidence of liability against identified PRPs
is not strong enough for diose PRPs to decide to settle for dieir full share of
cleanup costs. The negotiation team should work closely widi die PRP
search team to ensure a diorough PRP search is conducted and all leads are
investigated. The negotiation team should ensure that any new information
uncovered during negotiations is considered against die information
presented in die PRP search report. New information, when considered
against information discovered during die initial PRP search, may lead to
additional PRPs or increase die evidence of liability against previously
identified PRPs. The negotiation team should work widi die PRP search
team to follow up on any leads that may encourage setdement if new PRPs
are identified during RD/RA negotiations.
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8-50 KD/RA Negotiations/Settlement
8.4.F LatG Many PRPs wait until EPA solicits a settlement to challenge or question
ChallenaeS tO EPA's volumetric ranking. This practice can delay the negotiation and
... . settlement process. EPA should encourage die steering committee to set up
a process for early challenge, or the Agency should set up one itself.
Ranking
-------
5-57
8.5 Activities Checklist
The following checklist is not intended to present an exhaustive set of
procedures, nor is it meant to be a chronological list of tasks. RPMs should
exercise dieir professional discretion when deciding what procedures are
appropriate for a particular site.
1) Determine universe of PRPs to extent practicable.
a) Are PRPs ranked (particularly generators) by
volume/waste type?
b) If information is missing, can gaps be filled by
administrative discovery?
c) Has a strategy been developed for addressing
federal and/or municipal PRPs (if applicable)?
d) Have GNLs been sent?
2) Evaluate financial status of PRPs.
a) Bankruptcy issues.
b) Insurance coverage.
c) Possible Superfund lien.
3) Evaluate liability issues.
a) Strength of EPAs evidence.
b) Documentation in AR.
4) Develop strategy for negotiating.
a) Assess PRPs' interest in negotiating.
b) Facilitate steering committee development.
c) Determine whether EPA should identify and
solicit a separate setdement for de minimis PRPs.
d) Decide whether an NEAR should be developed.
e) Decide on negotiation team's roles, (e.g., if there
are liability issues and remedy issues, consider
whedier to divide the negotiation team into
separate units).
f) Determine whether Fund and state-share will be
available to implement the remedy if negotiations
fail or issue a UAO or initiate judicial action.
5) Notify and consult with federal and state natural resource
trustees.
6) Follow special notice (or waiver) procedures.
a) Notify DOJ 60 days before EPA issues the SNLs.
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5-52 RD/RA Negotiations/Settlement
b) Draft CD including RD/RA SOW or ROD.
c) Assess GFO.
d) Notify natural resource trustees of special notice
issuance.
e) Monitor moratorium and any extension requests.
7) Develop cost recovery component of case (including oversight
costs).
8) Develop strategy for settlement.
a) Evaluate whether case is appropriate for separate
de minimis PRP settlement.
b) Assess mixed funding potential.
c) Develop appropriate covenants and reopeners.
9) Ascertain natural resource trustee strategy (e.g., is the trustee
contemplating filing a natural resource claim or authorizing a
covenant not to sue?).
10) Determine state's role.
11) Facilitate citizen participation.
a) Determine whether any toxic waste tort suit is
pending.
b) Consider use of TAG grant.
12) Finalize the CD.
13) Proceed against non-settlors.
a) In the event diat settlement negotiations fail, is the
region prepared to issue a UAO or take section
106 judicial actions?
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9. RD/RA
Implementation
-------
9-i
Chapter 9 RD/RA Implementation
9.1 Description of Activity 1
9.1.A Introduction 1
9.1.B Overview 2
9.1.C Responsibilities 3
9.1.D PRP Responsibilities 3
9.1.D.1 Remedial Design Professional 4
9.1.D.2 Remedial Action Contractor 5
9.1.D.3 Quality Assurance Team 5
9.1.E EPA Responsibilities 6
9.1.E.1 Remedial Project Manager 6
9.1.E.2 Oversight Official and Technical Review Team 7
9.2 Procedures and Interactions .» 10
9.2.A Remedial Design Approach 10
9.2.B Design Tasks 10
9.2.B.1 Design Investigation 10
9.2.B.2 Design Support 12
9.2.B.3 Plans and Specifications 12
9.2.B.4 Construction Schedule ; 12
9.2.C EPA Remedial Design Review 12
9.2.C.1 Remedial Design Professional Qualifications Review 13
9.2.C.2 Remedial Design Work Plan Review 13
9.2.C.3 Preliminary Design Review 14
9.2.C.4 Intermediate Design Review 16
9.2.C.5 Pre-Final/Final Design Review 16
9.2.D Community Involvement Activities 16
9.2.E Remedial Action Oversight 16
9.2.E.1 Remedial Action Work Plan 18
9.2.E.2 Remedial Action Contractor Qualifications 18
9.2.E.3 Quality Assurance Team Qualifications 19
9.2.E.4 Construction Quality Assurance/Quality Control Plans 19
9.2.F Preconstruction Conference 20
9.2.G Remedial Action Implementation 20
9.2.G.1 Remedial Project Manager Role/Responsibilities 21
9.2.G.2 Shipment of CERCLA Wastes to Offsite Facilities 21
9.2.G.3 Oversight Official and Technical Review Team
Role/Responsibilities 21
9.2.G.4 Responding to Immediate Danger or an Emergency 22
9.2.H Pre-Final/Final Inspection 22
9.2.1 Remedial Action Report 23
9.2.J Construction Completion 23
-------
9—ii RD/RA Implementation
9.3 Planning and Reporting Requirements 24
9.3.A Remedial Design Activities 24
9.3.B Remedial Action Activities 26
9.4 Potential Problems/Resolutions 31
9.4.A Oversight 31
9.4.B Compliance Incentives and Assistance 31
9.4.C Compliance Monitoring 32
9.4.D Compliance Enforcement 33
9.4.E Site Access 34
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9-1
Chapter 9 RD/RA Implementation
9.1 Description of Activity
9. 1 .A Introduction EPA exercises oversight of response actions taken by Potentially Responsible
Parties (PRPs) pursuant to an EPA order or Consent Decree (CD) to ensure
the response is conducted consistent with the National Contingency Plan
(NCP) section 300.400(h). The objectives of PRP oversight by EPA are to
ensure that selected remedies being conducted by the PRP are protective of
public health and die environment, and are in compliance with the settle-
ment agreement.
In the past, when PRPs conducted Remedial Design/Remedial Action (RD/
RA) activities, die RD did not start until die CD was entered as final by a
federal district court judge. As a result, die PRPs' RD/RA projects some-
times were delayed for 12-15 months after the Record of Decision (ROD)
was issued.
These delays in initiating RDs are not consistent widi die Agency's efforts to
expedite site cleanup; dierefore, die initiation of PRP-conducted RD
activity is no longer dependent upon die court's entry of the CD. The
Agency's strategy is to encourage die PRP to agree to setdements wherein
engineering design work can proceed upon die lodging of die CD by EPA,
or where litigation is already pending, upon execution of a stipulation
obtained before die start of the RD. By implementing this strategy, RD
activities may be initiated before a CD is entered. In such cases, die
Remedial Project Manager (RPM) must exercise his/her oversight authority
to ensure diat die PRP is conducting die RD in accordance widi the terms
of die setdement agreement. This strategy of encouraging die PRP to begin
the RD as soon as die setdement is lodged allows PRP-lead projects to begin
at approximately die same time as a Fund-lead project would have begun.
A focused approach to PRP oversight diat will assist RPMs in concentrating
their efforts on die most significant aspects of die projects is recommended.
The successful implementation of die focused approach consists of two
steps. First, die RPM must focus on certain key documents developed
throughout the design and construction of die remedy such as die RD and
RAWork Plans, project schedules, Design Criteria Report (DCR), Basis of
Design Report (BODR), preliminary design, final design, Construction
Quality Assurance (QA) and Quality Control (QC) Plans, and the Contin-
gency Plan. The second step is die utilization of a Quality Assurance Team
(QAT) during construction. The focused approach will allow RPMs to
utilize dieir oversight activities more efficiently, enabling them to monitor
PRP activities more effectively. The ultimate goal of PRP oversight is to
hold PRPs responsible and accountable for implementing die RA in accor-
dance with the ROD and CD statement of work.
EPA has developed separate guidances for overseeing RDs and RAs, as well
as model statements of work for RD/RAs conducted by PRPs.
-------
9-2 RD/RA Implementation
References
Remedial Design/Remedial Action Handbook, EPA 540-R-95-059
"Guidance for Scoping the Remedial Design," EPA 540-R-95-025.
Office of Solid Waste and Emergency Response (OSWER) Directive
9355.5-02, "Guidance for Expediting Remedial Designs and Remedial
Actions" (1990).
OSWER Directive 9355.5-01, "Guidance on EPA Oversight of Remedial
Design and Remedial Actions Performed by Potentially Responsible Parties"
Interim Final (April 1990).
OSWER Directive 9835.4-2A, "Initiation of PRP-Financed Remedial
Design in Advance of Consent Decree Entry" (November 18, 1988).
OSWER Directive 9355-1-1, Superfund Federal-Lead Remedial Project
Management Handbook (December 1986).
OSWER Directive 9355.2-1, Superfund State-Lead Remedial Project Man-
agement Handbook (December 1986).
OSWER Directive 9355.0-4A, "Superfund Remedial Design and Remedial
Action Guidance" (June 1986).
9.1 .B Overview When PRPs elect to conduct RD/RA activities at a Superfund site, they
must do so in accordance with the terms of the negotiated settlement
agreement (either an Administrative Order on Consent (AOC) or a CD for
RDs, but only under a CD for RAs) per section 122 of Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA).
Subsequently, PRPs and their agents are responsible for die adequacy of the
design and the implementation of remedies specified. During an enforce-
ment lead cleanup, die primary function of EPA is to ensure PRP compli-
ance widi all applicable laws, regulations, and requirements, and to meet all
performance standards specified in the setdement agreement.
EPA has two objectives for overseeing PRP-conducted RD/RAs on enforce-
ment lead cleanups:
• Ensure the remedies are protective of public healdi and the environ-
ment throughout die life of die project.
• Ensure die RA is implemented in compliance widi die terms of the
setdement agreement.
The intent of die oversight program is to focus EPA efforts on the most
significant aspects of the project, such as overall QA, scheduling, major
changes due to changed field conditions, emergency actions, and project
close out. EPA may use a high level of oversight at the onset of die RD and
again when die RA is initiated. The amount of oversight effort may be
increased or decreased over time, depending on die capabilities of die PRP's
design and construction teams, die implementation of a construction QA
program, die nature of die technology selected, and die provisions of die
setdement agreement. The oversight must always be structured so the
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9-3
9.1.C Responsibilities
9.1. D PRP
Responsibilities
PRPs, not EPA, remain legally responsible and accountable for the success
of the response action.
This enforcement approach not only conserves Fund resources, it also frees
EPA personnel to work on other sites. The focused approach will help to
ensure that PRPs meet the requirement of implementing a construction QA
program, which is standard industry construction practice. In addition to
reducing the duplication of QA activities, diis will maintain the burden of
QA accountability on the PRP.
Because each Superfund site and RD/RA is unique, there are several accept-
able variations of PRP organizational structure to implement the RD/RA.
Regardless of the PRP organizational structure, however, it is the ultimate
responsibility of the PRP to successfully implement the remedy under die
terms of the setdement agreement.
Exhibit 9-1 presents a simple organizational chart illustrating the relation-
ships in an enforcement lead project in which the PRP conducts the RD/
RA. There are a number of organizations that could be used for conducting
the work, and the best approach will depend on the experience and prefer-
ence of the PRPs.
A "reporting relationship" as shown in Exhibit 9-1 is defined as a direct line
responsibility in which one party, as an agent of die other or under a legal
requirement, is compelled to perform work in accordance widi die terms of
the relationship and to report die results of its work or observations. The
PRP has a "reporting relationship" with EPA as a condition of die setde-
ment agreement, while agents and contractors hired by the PRP have a
similar type of association with the PRP. Where "lines of communication"
are indicated in Exhibit 9-1, it implies diat an information exchange is
highly desirable between parties. Such an exchange is usually necessary for a
successful implementation of a remedy; however, there is no legal require-
ment for such communication. The QAT is used to ensure compliance and
provide unbiased QA monitoring of die RA.
The following paragraphs discuss die particular roles and responsibilities of
the PRP and EPA in the implementation of an enforcement lead project in
which the PRP does the RD/RA.
The PRPs are legally responsible for die site remediation specified in the
setdement agreement. All work is done under the PRPs control, and diey
are responsible for die long-term performance of die remedy. PRPs provide
the necessary input to affect site remediation, whether done with "in-house"
resources, or through the use of hired contractors and subcontractors. PRP
responsibilities are apportioned among die RD professional, the RA con-
tractor, and die QAT.
-------
9-4 RD/RA Implementation
9-1 Relationships Among Parties When RD/RA is Performed By a PRP
, EPA ,
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i
OVERSIGHT nnn
OI-HUAL(S) — ^^^— — — — I m
1
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i i
! i i
QUALITY REMEDIAL
TEAM CONTRACTOR
RFPORTINfi RFI ATION^HIP
— — — LINES OF COMMUNICATION
•
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i
9.1.D.1
Remedial
Design
Professional
The primary function of the RD professional, or design engineer, is to
provide the PRP with a set of plans and specifications for die proposed
remediation that is widiin budget and meets die requirements on schedule.
The RD professional may be an employee of die PRP or may be a private
consulting entity retained under a contractual relationship widi die PRP.
Unless the RD professional has a large and experienced staff, many projects
are sufficiently complex to require the design team to be supplemented with
additional capabilities (e.g., geotechnical, electrical, mechanical, or struc-
tural engineers; field surveyors, or persons widi other specialized skills.)
These specialists may subcontract widi the RD professional or contract
direcdy with die PRP.
In addition to die above responsibilities, die RD professional usually will be
required to provide a Resident Engineer to act as die PRP's agent on die site
during construction. In some situations die Resident Engineer may be
hired direcdy by die PRP. In eidier case, diis person is one of die most
critical in establishing and maintaining construction quality on die site.
Typically the Resident Engineer is required to review progress and shop-
drawing submittal schedules; prepare periodic progress reports; make
recommendations concerning major inspections and tests; interpret plans
and specifications; resolve disputes; draft change orders, field orders, and
work directive changes; conduct the pre-final and final inspection of
completed work widi PRP, RA contractor, EPA, and other agencies; prepare
a Remedial Action Report (RAR) which certifies diat die completed project
has been constructed in accordance with the setdement agreement and diat
-------
9-5
all performance standards have been met; and determine that certificates,
Operation and Maintenance (O&M) manuals, and other required data have
been assembled by the RA contractor.
9.1 .D.2 Remedial An RA contractor's primary responsibility in constructing the RA is to meet
Action the quality standards specified by the design and accepted trade practices.
Contractor They are responsible to die PRP for implementing and maintaining the QC
program. The RA contractor will obtain all necessary permits and approvals
as required by the RA activities; construct the project according to the plans
and specifications by supervising and controlling the execution of work,
including means, methods and sequences of construction; and maintain
"Record Drawings" at the site, properly noting all changes made during
construction. In addition, die RA contractor will implement and maintain
a construction QC program, identify and report problems, provide qualified
testing to demonstrate diat proposed materials and equipment are accept-
able, and respond constructively to QC issues.
9.1.D.3 Quality Quality is conformance to properly developed requirements. In the case of
Assurance construction contracts, these requirements are established by the contract
Team specifications and drawings. The QA process identifies planned and
systematic actions that provide confidence diat die completed remedy meets
die stated requirements. The QAT is used to provide this level of confi-
dence to die PRP by testing and inspecting die work of die RA contractor.
QC is die system used by the RA contractor to manage, control, and
document the compliance widi requirements of all RA activities of the
parent firm and diose of suppliers and subcontractors.
The QAT includes representatives from testing and inspection organiza-
tions, independent of die constructor, who are responsible for examining
and testing various materials, procedures, and equipment during the
construction. Since the PRP is responsible for the QA of die remedy, die
QAT is retained by die PRP. The QAT members are either employees of the
PRP, or are working for die PRP through a contractual arrangement, and,
dierefore, have no legal obligation to respond to EPA direction. Any
direction regarding die QAT will come from the PRP. EPA should raise
issues regarding die performance of die QAT direcdy with the PRP.
The qualifications and expertise of die personnel should be commensurate
widi die scope of the project. Typical functions of die QAT include
reviewing design criteria, plans, and specifications for clarity and complete-
ness; directing and performing observations and tests for QA inspection
activities; verifying diat construction QC is implemented in accordance
widi die site-specific Construction QA Plan; performing independent on-
site inspections of die work to assess compliance widi design criteria, plans
and specifications; and reporting to the PRP and EPA die results of all
inspections and corrective actions, including work diat is not of acceptable
quality or diat fails to meet die specified design requirements.
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9-6 RD/RA Implementation
9.1.E EPA
Responsibilities
9.1.E.1
Remedial
Project
Manager
EPA is responsible for protecting public health and the environment and for
ensuring diat PRPs comply with the terms of the settlement agreement.
EPA monitors compliance of die PRPs in dieir implementation of the
remedy. The most successful way for EPA to do this is to vest responsibility
for the project in a single individual within EPA, the RPM. The RPM may
arrange for or hire an oversight official and assemble a Technical Review
Team (TRT) of professionals widi the technical knowledge necessary to
assist EPA in overseeing PRP-lead RD/RAs. The RPM should take care in
assigning roles and responsibilities to these individuals to maximize effi-
ciency and avoid duplication of effort. If appropriate, die RPM may also
choose to personally conduct die responsibilities of die oversight official.
The RPM is die federal official designated by EPA to coordinate, monitor,
and manage remedial activities. EPA's role in RD/RAs performed by PRPs
is to ensure that die remedy complies widi die ROD and the setdement
agreement. The RPM should manage, coordinate, and monitor PRP
activities with die support of die oversight official and TRT, and should be
technically competent to ascertain compliance by the PRP, PRP staff, and
consultants widi die setdement agreement and die ROD.
The RPM should exercise a high level of oversight at die onset of die
project. As the PRP demonstrates competence in implementing the
remedy, the amount of oversight may be relaxed accordingly. The oversight
program must focus die RPM s efforts on the most significant aspects of the
project, such as overall quality, scheduling, major changes due to changed
field conditions, site safety, emergency actions, and project closeout. This
may require site inspections at appropriate milestones during execution of
the project.
As described in Chapter VI, RI/FS Implementation, die RPM has ultimate
discretion in determining die appropriate level of oversight to apply at a site.
The Superfund administrative reform on PRP oversight reemphasizes diat
die RPM should be alert, especially widi respect to the role of die oversight
official, to manage oversight of RD/RA in a cost-effective manner, while
ensuring that die remedy is protective.
Active participation in die design and construction of die remedy by die
RPM, oversight officials, or TRT, however, is generally inappropriate.
RPMs and/or oversight officials should not serve as technical experts for
technologies or mediods required to implement die remedy. RPMs who
serve in such a role, or who give direction to PRP employees or consultants,
could undermine and compromise the oversight relationship between EPA
and die PRP, and shift some of the responsibility for die success of die
remedy to EPA. EPA should not be both a player and a referee in PRP-lead
projects.
At a minimum, the RPM should review and approve die PRP s RD/RA
Work Plans, design submittals, Construction QA and Construction QC
Plans, Contingency Plan, and RAR. The term "EPA Approval" should not
warrant that the technology is sanctioned by EPA as technically acceptable
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9-7
9.1.E.2
Oversight
Official and
Technical
Review Team
or competent. The term may be defined in the settlement agreement as
meaning an administrative approval that simply allows the PRP to proceed
to the next step. RPMs should defer to the advice of regional counsel and
EPA guidance regarding the use of the term "EPA Approval."
References
Remedial Design/Remedial Action Handbook, EPA 540-R-95-059.
"Guidance for Scoping the Remedial Design," EPA 540-R-95-025.
OSWER Directive 9355-5-01, "Guidance on EPA Oversight of Remedial
Design and Remedial Actions Performed by Potentially Responsible Parties"
Interim Final (April 1990).
OSWER Directive 9355.1-02, "The RPM Primer: An Introductory Guide
to the Role and Responsibilities of the Superfund Remedial Project Man-
ager" (September 1987).
RD/RA oversight requires knowledge in a variety of engineering, geological,
and environmental disciplines. Since RPMs rarely possess the requisite
knowledge and experience, it is often necessary to assemble a TRT com-
prised of individuals with such expertise. Exhibit 9-2 provides a list of
possible TRT members, who may be assembled from in-house EPA staff
and/or, from other offices and organizations under some form of contrac-
tual or interagency agreement with EPA. The recommended options
available for oversight support include Response Action Contracts (RACs)
contractors, the U.S. Army Corps of Engineers (USAGE), and the U.S.
Bureau of Reclamation (BUREC).
The responsibilities of an oversight official and the TRT during RD may
include assisting in reviewing the professional qualifications of the RD
professional, RA contractor, and the QAT; reviewing the RD and RA Work
Plans; and reviewing die RD submittals to determine if they are protective
of public health and the environment, comply with the ROD, and will
attain die performance criteria specified in the setdement agreement.
During RA, the oversight official and TRT review die Contractor QA Plans
and schedule for compliance with die approved plans and specifications.
Construction oversight is limited to observing construction and comparing
the work to a set of standards (in diis case, the design plans and specifica-
tions and die Construction QC Plan prepared by the PRP's RA contractor).
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9-8 RD/RA Implementation
9-2 Potential Technical Review Team Members
EPA Regional Personnel
Technical Support Team
Ground water Technical Support Unit
Other experienced RPMs
ORD personnel
Off ice of Water
Office of Solid Waste
Office of Air
RCRA representative
Health and Safety Officer
Community Relations Coordinator
Environmental Services Division
Regional IGCE Coordinator
Contracting Officer/Project Officer
Staff attorney
Quality Assurance Manager/Coordinator
Experience Added to Project Team
• Specialized technical services
* Specialized technical services
• RD/RA management experience
• Technology experts
• Media experts
• Media experts
• Media experts
• Applicable or Relevant and Appropriate
Requirements (ARARs), regulatory specialists
• Health and safety specialists
• Experience in communicating with the public
• Quality assurance/sampling experts
• Costing specialist
• Contract/WA administration
• Legal expertise
• Quality assurance/quality control experts
State Personnel
State Environmental Departments
State natural resource trustees
State ARARs, procedures, concerns
Environmental impact/management
Federal Agencies
U.S. Army Corps of Engineers
U.S. Bureau of Reclamation
U.S. Department of Interior
U.S. Geological Survey
Occupational Safety and Health Administration
National Oceanic and Atmospheric Administration
Design, construction, and management experience
Management and oversight experience
Management and oversight experience
Management and oversight experience
Safety and health expertise
Media and weather expertise
EPA Contractors
ARCS/RACs
Engineering and scientific expertise; RD and
construction management '
Local Government Agencies
Building Inspectors
Design review plan-checks for compliance with
building codes
Community Members
Community Group (TAG recipient)
Technical expertise
-------
9-9
The oversight official and TRT also conduct spot checks of the QATs
activities, and review QA reports. The results of all RA oversight activities
are reported to the RPM. More detailed guidance on assembling and
utilizing TRTs is provided in the Remedial Design/Remedial Action Hand-
book.
References
Remedial Design/Remedial Action Handbook, EPA 540-R-95-059.
"Guidance for Scoping the Remedial Design," EPA 540-R-5-025.
OSWER Directive 9355.5-01, "Guidance on EPA Oversight of Remedial
Design and Remedial Actions Performed by Potentially Responsible Parties"
Interim Final (April 1990).
-------
9-10 RD/RA Implementation
9.2
9.2.A
Remedial
Design
Approach
9.2.B Design Tasks
9.2.B.1
Design
Investigation
Procedures and Interactions
The RD establishes the general size, scope, and character of a project. It
details and addresses the technical requirements of the RA. The RD begins
with a preliminary design and ends widi the completion of a detailed set of
engineering plans and specifications.
There are two approaches to RD: performance-based and detailed design.
In a performance-based design, basic technical specifications are developed
containing the performance requirements for the work. The RD profes-
sional focuses on defining criteria and process limits. It is the RA
contractors responsibility to implement a remedial plan that achieves diose
technical specifications.
In a detailed design, information is provided on system integration and on
appropriate equipment for each unit process. The designer chooses equip-
ment, dimensions, controls, size, shape, materials, and installation details.
The contractor builds to these definitive plans and specifications.
In many situations, a mixed design approach is used. This often occurs for
designs incorporating an innovative or emerging technology for which there
is relatively little information available. In this instance, the designer may
use a performance specification for the innovative technology and a detailed
design for all other aspects.
Exhibit 9-3 presents a flow chart illustrating the RD process of the focused
approach to oversight. The "diamonds" in the figure represent decision or
review points that are the RPM's responsibility and are considered critical to
the quality and success of the project.
It often is necessary to perform design-related tasks (e.g., data gathering and
treatability studies) before starting an RD. In addition, there are other
activities required to be performed during the actual design process to
support the design (e.g., establishment of design criteria and a delivery
strategy, completion of a value engineering study, and implementation of
community involvement activities). Information typically collected during
the predesign phase is shown in Exhibit 9-4, followed by tasks diat are
commonly required in a PRP-performed RD, either as prerequisites to the
design or as pan of the actual design. Information regarding design tasks
can be found in the "Guidance for Scoping the Remedial Design" docu-
ment.
Reference
"Guidance for Scoping the Remedial Design," EPA 540-R-95-025.
There may be instances when all the data required for die RD was not
collected during the Remedial Investigation and Feasibility Study (RI/FS)
phase. Some RODs prescribe remedies contingent on the results of addi-
tional testing or treatability studies. Additional field data may need to be
collected and evaluated, including geotechnical investigations, ground water
sampling, and surveys (property, utility, right-of-way, topography).
-------
9-3 Remedial Design Oversight Process
9-11
PRP
EPA
OVERSIGHT OFFICIAL
REVIEW PROFESSIONAL QUALIFICATIONS
DATA
COLLECTION/TREATABILITY
STUDY
REVIEW PRELIMINARY DESIGN
YES
INTERMEDIATE DESIGN
REVIEW INTERMEDIATE DESIGN (OPTIONAL)
PRE-FINAL DESIGN
INCLUDING:
• CONSTRUCTION QA PLAN
• CONTINGENCY PLAN
NO
INITIATE REMEDIAL ACTION
REVIEW PRE-FINAL/FINAL DESIGN
YES
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9-12 RD/RA Implementation
9-4 Typical Collection of Predesign Information
Initial site conditions (e.g. characteristics, availability of utilities,
restrictions on road use)
Availability of site access (any known restrictions or issues)
Technology/design approach
Performance standards, ARARs, permits
Summary of all available technical information (listing of the source and
description of the data)
Volume of materials to be treated and the accuracy of the data
Unresolved issues (including undecided or unknown performance
standards)
Health and safety concerns
Operation and maintenance (O&M) issues
Historical property boundary ownership information
9.2.B.2
Design
Support
9.2.B.3 Plans and
Specifications
9.2.B.4 Construction
Schedule
9.2.C EPA
Remedial
Design Review
During the initial preliminary design phase, the designer details the con-
cepts which will support the technical aspects of the ultimate design. Much
of the information is based on the results of field data and treatability
studies that may have been completed since the RI/FS.
Besides establishing the design criteria, which primarily address the project's
technical issues, the designer must devise a strategy for delivering the
project. This strategy becomes the management approach to carry out die
actual RA. The management approach normally discusses the procurement
method and contracting strategy, phasing alternatives, health and safety
considerations, review requirements, design schedule, contractor, labor,
equipment availability concerns, and requirements for addressing sampling
and data gathering methods under the Field Sampling Plan (FSP), QA
considerations (Construction QA Plan), and air emissions and spill control
requirements (Contingency Plan).
The RD should produce a set of engineering plans and specifications that
are consistent widi the technical criteria established for the design. These
documents should present the design information at a level of detail appro-
priate to the requirements of the project.
A construction schedule should identify major tasks, determine their
duration, and establish milestone dates. It also should identify key issues
which may affect the schedule.
During RD, EPA, with technical assistance from the oversight official and
TRT, monitors and reviews die PRP's performance. EPA approval at any
stage of die RD work elements in no way guarantees die success or failure of
the ultimate remedy. Such EPA approval is analogous to a city issuing a
building permit to a developer for construction of a building. The permit
does not guarantee die building will be structurally sound, it merely indi-
cates compliance with die minimum design criteria and standards of die city
-------
9-13
9.2.C.1
Remedial
Design
Professional
Qualifications
Review
9.2.C.2
Remedial
Design
Work Plan
Review
for such buildings. The soundness of the building's construction is still the
complete responsibility of the owner. Similarly, EPA's review and approval
of a PRP's work plan or design merely indicates the plan's acceptability with
regard to RA goals in accordance with the ROD and the settlement agree-
ment and does not warrant dial specified performance standards will be met.
The remainder of this subsection presents a standardized approach for the
development of an acceptable design for a remedial construction project.
Depending on die site-specific conditions, including, but not limited to,
site complexity, technologies being used, PRP capacity and cooperation,
public involvement concerns, and the requirements of die CD, die RPM
may abbreviate this process. If appropriate, die RPM may choose to merge
deliverable documents, substitute deliverables with briefings, or conduct
tasks concurrendy radier dian consecutively in order to improve the speed
and efficiency of die project and reduce oversight costs as well as the overall
cost of die project. The RPM, however, must be careful not to modify
oversight tasks to die detriment of die quality of die work performed.
The PRP is responsible for selecting the RD professional, subject to the
approval of EPA. Selecting a qualified designer widi die training, experi-
ence, staff, and capabilities consistent widi die scope of work is an impor-
tant step toward completing a high-quality project.
The RPM, in conjunction with the oversight official andTRT, should
review die qualifications of die RD professional. The resultant analysis is
used to form die basis of the level of oversight employed by EPA during die
RD process. The settlement agreement should require die PRP to submit
die name and qualifications of an RD "Supervising Contractor" to EPA for
review and approval. If EPA disapproves of the contractor submitted by die
PRP, die PRP submits a list of contractors acceptable to die PRP as "Super-
vising Contractor(s)" to EPA. EPA dien would provide written notice of
the contractors it finds acceptable, from which die PRP may select its
choice. RPMs should defer to the advice of regional counsel and relevant
language in EPA's guidance.
The RD Work Plan is the first major deliverable and area of focus for die
RPM, oversight official, andTRT. It is the PRP's interpretation of die
setdement agreement and die SOW. A diorough review of die Work Plan is
essential because it sets die course for die PRP's implementation of die
design portion of the RA. The RD Work Plan should be reviewed for its
thoroughness and approach, and to ensure that it contains at least the
following items: tentative formation of die design team; a Healdi and Safety
Plan (HASP) for design activities; requirements for additional field data
collection; requirements for treatability studies; a schedule for completion of
die design; design criteria and assumptions; sampling and analyzing plan;
contingency plan; and tentative treatment schemes.
The RPM, oversight official, andTRT should use die results of diis review
and the evaluation of the RD professional qualifications to establish die
level of initial RD oversight as die designer begins die preliminary design.
-------
9-14 RD/RA Implementation
9.2.C.3 Preliminary The preliminary design review is completed when approximately 30% of
Design the design work has been completed. Major inconsistencies within the
Review design itself should be identified and corrected before the PRPs proceed
with the detailed design submissions. Based on the settlement agreement,
EPA may be required to review and approve this submission. The prelimi-
nary design submittal should include the BODR, if this report has not been
previously provided. This report contains the design criteria analysis and
die designer's "Remedial Action Delivery Analysis," which describes proce-
dures for procurement of the RA, tells how die RA will be phased, etc. The
submittal also should include die results of treatability studies and addi-
tional field sampling; preliminary plans, drawing lists, drawings, and
sketches; an outline of required specifications; and a preliminary construc-
tion schedule. Preliminary design submittal components are noted in
Exhibit 9-5.
In performing die preliminary design review, die oversight official, TRT,
and die RPM use their professional training to assess die feasibility of the
design to achieve die RA goals in accordance widi the ROD and setdement
agreement. The oversight official and TRT make a recommendation to die
RPM based on the criteria listed below. The RPM is responsible for
deciding whether die design is adequate and if an enforcement action is
necessary.
9-5 Preliminary Design Phase Submittal Components
+ Design criteria report
• Project description
• Design requirements and provisions
• Preliminary PFDs
• O&M provisions
• Basis of design report
• Design assumptions
• RA contracting strategy
• Permits plan
• Preliminary easement/access requirements
• Preliminary P&IDs
* Preliminary drawings and specifications
• Outline of general specifications
• Drawings and schematics, including final P&IDs
• O&M requirements
• Chemical and geotechnical data
+ Results of VE screen
* Preliminary RA schedule
Ultimately, die setdement agreement and any document incorporated
therein set the performance criteria for the site. The preliminary design
review should evaluate the adequacy of the design widi respect to all
environmental and public health requirements. A review widi respect to
environmental criteria can be done by determining die feasibility of die
-------
9-15
design to meet the performance standards. The preliminary design should
be reviewed with consideration of the following: technical requirements of
the ROD, settlement agreement, and ARARs; currendy accepted environ-
mental protection measures and technologies; standard professional engi-
neering practices; applicable statutes, EPA policies, directives, and regula-
tions; conformance with results of field data and treatability studies; reason-
ableness of estimated quantities of materials specified based on known data;
and conformance of the construction schedule with project completion
goals.
The function of the preliminary design review is limited to ensuring that
the design criteria and the delivery strategy are consistent with the design
requirements of the selected remedy. It should focus only on the environ-
mental aspects of the design. Initially, the level of review should be limited
to certain tasks, such as verifying that appropriate unit processes are being
employed by die treatment train; confirming that the removal or treatment
efficiencies assumed are reasonable for both the process and waste (concen-
tration and volume); checking that process waste streams are adequately
identified and addressed, and that flow rates are appropriate; verifying that
the proposed sizing of the process is appropriate and that any site abnor-
malities have been addressed; and spot checking some (about 10 percent) of
the design calculations.
The review can be expanded if deficiencies are found in any of these areas.
Approval of the preliminary design only allows the PRP to proceed to the
next step of the design process. It does not imply acceptance of later design
submittals that have not been reviewed, or that the remedy, when con-
structed, will meet performance standards and be accepted.
For complex or high-cost projects, the designer may call for a Value Engi-
neering (VE) screening and, if warranted, a VE study. The object of VE is
to achieve the lowest life cycle cost consistent with the requirements of the
project. VE efforts, conducted by independent teams trained in VE meth-
ods, focus on the function of the various components of the project seeking
to reduce cost without a loss of quality. Projects which are candidates for
VE are screened early in the design phase.
Screening results, which identify potentially high cost design elements, are
submitted with or before the preliminary design documents. If a VE
screening is submitted, the RPM should utilize the oversight official and
TRT to evaluate the results and potential impacts to project requirements
and schedule. If screening results lead to a full VE study, the PRP should
provide the RPM widi the results of the study and its determination as to
whether the project schedule or ROD will require any alteration. The RPM
should utilize the oversight official and TRT to evaluate any changes
recommended by the study to ensure that the requirements of the ROD or
other remedial documents are not adversely impacted.
-------
9-16 RD/RA Implementation
9.2.C.4
Intermediate
Design
Review
9.2.C.5
Pre-Final/
Final Design
Review
9.2.D
Community
Involvement
Activities
9.2.E
Remedial
Action
Oversight
The submittal of the intermediate design is optional and would normally
only be performed for larger, complex designs or when required by the
setdement agreement. The intermediate design phase is considered com-
plete at the 60 percent stage of design. The design is reviewed to determine
that comments from die preliminary design review have been incorporated.
It is a further refinement of die specifications. The results of treatability
studies and any other data gadiering should be incorporated. If a VE study
has been performed by the PRP, die intermediate design would typically
reflect any design modifications resulting from this study. The intermediate
design should also include an intermediate O&M Plan. These changes,
plans, and refinements must be evaluated for consistency with the ROD.
Reference
Remedial Design/Remedial Action Handbook, EPA 540-R-95-059.
The pre-final/final design submittals are reviewed for consistency with the
ROD and setdement agreement. The final design submittal package from
the PRP should include die following: final design plans and specifications;
O&M Plan; FSP (including a description of whether die performance
standards have been achieved by the RA); Construction QA Plan; and
Contingency Plan.
The pre-final/final design review is the last review of the RD and should be
based upon the approved preliminary and intermediate design submittals.
The oversight official, TRT, and RPM assess die acceptability of the final
design submittals on die basis of die same considerations used for the
preliminary design, including conformance to the ROD. The approval of
the final design is acceptance that the project may proceed to the next step,
i.e., community involvement activities and preparation of an RAW>rk Plan.
At die conclusion of the RD, the RPM should distribute to the community
and other interested persons a fact sheet on die final engineering design.
The fact sheet enables EPA to inform the public about activities related to
the final design, including die schedule for implementation of die RA, a
description of what die site will look like during construction, the roles of
the PRP and EPA, die Contingency Plan, and any potential inconveniences,
such as excess traffic and noise. The RPM also should provide an opportu-
nity for a public briefing to be held near die site prior to initiation of die
RA. A public briefing may be necessary to address issues such as construc-
tion schedules, changes in traffic patterns, location of monitoring equip-
ment, and die methods by which the public will be informed of progress at
the site.
After completion of the RD, the RA, during which the actual implementa-
tion of the remedy occurs, begins. Exhibit 9-6 presents a flow chart diat
illustrates the RA process of the focused approach to oversight. The "dia-
monds" represent critical decision or review points required of die RPM.
The RPM should use a high level of oversight at the onset of die RA. The
appropriate level of oversight is determined by requirements specified in die
setdement agreement, die complexity of die remedy, past performance of
-------
9-6 Remedial Action Oversight Process
9-17
PRP
EPA
OVERSIGHT OFFICIAL
PREPARE RA WORK PLAN
REVIEW RA WORKPLAN
YES
SELECT RA CONTRACTOR
AND QA TEAM
REVIEW QUALIFICATIONS
PREPARE CONSTRUCTION
QCPLAN
REVIEW CONSTRUCTION QC PLAN
PRE-CONSTRUCTION CONFERENCE
CONSTRUCTION
IMPLEMENT
CONSTRUCTION QA/QC
PLANS
OVERSIGHT
PRE-FINAL/FINAL INSPECTION
PREPARE REMEDIAL ACTION REPORT
REVIEW REMEDIAL ACTION REPORT
-------
9-18 RD/RA Implementation
9.2.E.1
Remedial
Action
Work Plan
9.2.E.2
Remedial
Action
Contractor
Qualifications
the PRP, the qualifications of the PRP's design and construction teams
(including die QAT), and any odier relevant factors affecting die design and
implementation of die RA. This level of oversight may be adjusted accord-
ingly, based upon the actual performance of the RA contractor, as imple-
mentation proceeds. The objective of the oversight program is to focus the
RPM's efforts on the most significant aspects of die project such as environ-
mental protection, consideration of public health concerns, overall quality,
scheduling, major changes due to changed field conditions, emergency
actions, and project close-out.
During RA, EPA monitors and reviews the performance of the RA contrac-
tor in building die project. It is die PRP's responsibility to ensure diat the
RA contractor meets the quality standards specified by die design and
accepted trade practices. EPA, through die oversight official and TRT,
monitors and reviews the work of die PRP on die basis of defined applicable
standards, in this case, approved design plans and specifications, and the
Construction QA and QC Plans. It is inappropriate for die oversight
official or TRT to direct or determine the means and methods of construc-
tion. Clearly defining these roles, and adhering to them, ensures diat the
responsibility and accountability of die construction project remains widi
the PRP
The RA Work Plan is die basis for die PRP's approach to implementation of
the RA. The work plan may be a negotiated part of the settlement agree-
ment or it may be a required submission under die agreement. As with die
RD Work Plan, die RPM, oversight official, and TRT should dioroughly
review die RA Work Plan to ensure that the PRP will use a sound approach
to the RA.
The RA Work Plan should be reviewed to ensure that it includes: tentative
formulation of the RATeam, including the key personnel, descriptions of
duties, and lines of authority in die management of the construction
activities; description of the roles and relationships of the PRP, PRP project
coordinator, Resident Engineer, QAT, RD professional, and RA contractor;
process for selection of the RA contractor; schedule for the RA and the
process to continuously update die project schedule; mediod to implement
the Construction QA Plan, including criteria and composition of the QAT;
a HASP for field construction activities; strategy for implementing the
Contingency Plan; procedure for data collection during die RA to validate
the completion of die project; and requirements for project closeout. As
with die RD Work Plan, the RPM, oversight official, and TRT will use this
evaluation to assist in determining die initial level of oversight required for
construction activities.
The PRP is responsible for selecting the RA contractor, whedier dirough a
competitive bidding process or through die assignment of PRP "in-house"
resources. As may be required by the terms of the settlement agreement,
EPA reviews and approves the selection of the PRP's preferred RA contrac-
tor using the following criteria for guidance: an evaluation of die profes-
sional and ethical reputation and required licenses, as determined by
-------
9-19
9.2.E.3
Quality
Assurance
Team
Qualifications
9.2.E.4
Construction
QA/QC Plans
inquiries with previous clients and other references; and the RA contractor's
previous experience in, and demonstrated capabilities to perform, the type
of construction activities to be implemented. If EPA disapproves of the
contractor submitted by die PRP, the PRP would submit a list of contrac-
tors acceptable to the PRP as "Supervising Contractor(s)" to EPA. EPA
would dien provide a written notice of the contractors it finds acceptable,
from which the PRP may select. RPMs should defer to the advice of
regional counsel and the relevant language in EPA's " Draft Model CER-
CLA RD/RA Consent Decree" regarding EPA review of the RA
professional's qualifications. The RPM, oversight official, and TRT should
use this evaluation with the results of die review of the RA Work Plan to
assist in determining the initial level of oversight required for construction
activities.
The QAT is used to provide a level of confidence to the PRP by selectively
testing and inspecting the work of die RA contractor and by ensuring diat
die Construction QC Plan is being implemented effectively. The members
of die QAT may be separate consultants working for the PRP under a
contractual relationship or they may be in-house personnel assigned to the
project.
In either case, the QAT must be independent of the contractor. EPA
reviews and approves die selection of the QAT using die following criteria
for guidance: evaluation of the professional and ethical reputation, as
determined by inquiries with previous clients and other references; determi-
nation diat die qualifications and expertise of die inspection personnel are
commensurate widi die scope of the project; and confirmation diat the QA
team is truly independent and autonomous from the RA contractor.
If a PRP elects to use in-house resources to implement die RA, it is inappro-
priate for PRP in-house personnel to also be used for QA. Because it is
important for the QA Team to be independent of the contractor in order to
assure unbiased and objective evaluations, EPA should insist on die use of
an independent firm. In some projects, the PRP may be unwilling to hire a
QAT and/or is not required to do so under die terms of the settlement
agreement. In these cases, EPA may decide to hire a QAT, use its oversight
officials and TRT, or enter into a cooperative agreement widi die state to
conduct QAT activities to ensure diat the project is constructed properly.
Construction QA/QC should be a requirement on all construction projects.
The RA contractor is responsible for all activities necessary to manage,
control, and document work so as to ensure compliance with die project
requirements (i.e., plans and specifications). The Construction QA Plan is
normally prepared by die RD professional and submitted widi the final
design. It is the responsibility of the Resident Engineer to implement it
through die QAT. The use of the QAT will provide for an unbiased
implementation of die Construction QA Plan.
The oversight official and TRT should assist the RPM in reviewing each of
the above plans. The review should focus on determining that the Con-
-------
9-20 RD/RA Implementation
9.2.F Preconstruction
Conference
9.2.G Remedial
Action
Implementation
struction QC Plan is consistent with the requirements of the plans and
specifications, and that the Construction QA Plan ensures the performance
standards will be met. The review should examine the appropriateness and
the frequency of the tests and inspections identified in both plans. Review-
ing the Construction QA and QC Plans will assist the oversight official and
TRT in developing a strategy to spot check the PRP's QA program.
References
OSWER Directive 9355-5-01, "Guidance on EPA Oversight of Remedial
Design and Remedial Actions Performed by Potentially Responsible Parties"
Interim Final (April 1990).
American Society of Civil Engineers, Quality in the Constructed Project: A
Guideline for Owners, Designers and Constructors, Volume 1-Preliminary
Edition for Trial Use and Comment (May 1988).
The PRP will initiate a pre-construction conference prior to the start of
construction on the project in order to establish relationships among all
parties involved in the RA implementation (e.g., RPM, oversight official,
TRT members as appropriate, PRP, RD professional, QAT, and RA contrac-
tor). The agenda should include items such as introducing the members of
each team, discussing EPAs expectations for the project, reviewing general
project scope and requirements specified in the settlement agreement,
reviewing the final Construction QA and QC Plans, reviewing the HASP,
reviewing the project schedule, reviewing roles and responsibilities of all
parties, establishing procedures to resolve disputes or misunderstandings
during construction, reviewing emergency actions and the Contingency
Plan, and reviewing endpoint activities and procedures for project comple-
tion. The tone of this meeting will help the RPM determine the level of
oversight necessary for the project.
The Superfund reform on PRP oversight requires that for all settling parties,
the RPM offer to discuss, at least on an annual basis, EPA's oversight
expectations for die coming year. Furthermore, to encourage a mutually
cooperative relationship that can enhance the success of the project, the
RPM should provide opportunity for these PRPs to suggest ideas to im-
prove the efficiency of the oversight process. The RPM should actively
consider project streamlining that can improve the project schedule or
reduce overall project or oversight costs and still ensure that the remedy is
effective and protective.
It is the RPM s responsibility to monitor PRP compliance with the setde-
ment agreement (including all documents and plans included therein by
incorporation or reference). The RPM uses all the information and interac-
tions to monitor PRP compliance and has the flexibility to adjust the level
of oversight as necessary. The RPM should develop a strategy for communi-
cating with the PRP during the performance of the remedial action. This
strategy should outline communication requirements, including circum-
stances that warrant immediate EPA notification, along with development
-------
9-21
9.2.G.1 Remedial
Project
Manager Role/
Responsibilities
9.2.G.2 Shipment
of CERCLA
Wastes to
Offsite
Facilities
9.2.G.3 Oversight
Official and
Technical Review
Team Role/
Responsibilities
of a meeting schedule. Further information regarding reducing oversight at
certain sites may be found in EPA guidance. Suggestions for minimizing
the costs of oversight are found in EPA guidance on "Reducing Federal
Oversight at Superfund Sites with Capable and Cooperative PRPs," and are
described in Chapter VI, RI/FS Implementation.
References
OSWER Directive 9200.4-15, "Reducing Federal Oversight at Superfund
Sites with Cooperative and Capable Parties" (July 31, 1996) (to be super-
seded by new guidance in 1999).
Remedial Design/Remedial Action Handbook, EPA 540-R-95-059.
OSWER Directive 9355-5-01, "Guidance on EPA Oversight of Remedial
Design and Remedial Actions Performed by Potentially Responsible Parties"
Interim Final (February 1990).
If it is determined that the PRP is failing to comply with the terms of the
setdement agreement, the problem can be approached as follows: identify
the problem and devise corrective actions that are consistent with the
setdement agreement; document all contacts with die PRPs concerning the
inadequacies of the implementation; discuss the proposed corrective action
with regional management to ensure the RPM is maintaining a consistent
regional approach in overseeing the PRPs response activities; and contact
the regional counsel for advice on how to proceed in the event enforcement
becomes necessary.
If CERCLA wastes will be transferred to an offsite location, it is the RPM s
responsibility to ensure that waste shipments are sent only to EPA-accepted
facilities and are in full compliance with the requirements of the Offsite
Rule.
Reference
Sending Wastes Off Site?, EPA 540-F-97-006.
The oversight official and TRT report to the RPM and support the RPM in
monitoring PRP compliance with die setdement agreement, the plans and
specifications, and the Construction QA and QC Plans. Responsibilities
diat the RPM may assign to the oversight official and TRT members
include: attendance at die pre-construction conference, progress briefings,
and any other meetings as required; on-site observations of die work in
progress to determine if the work is generally proceeding in accordance with
the plans and specifications and the Construction QA and QC Plans; and
review of changes in work.
The oversight official and TRT are representatives of the EPA and do not
have authority to authorize any deviation from the contract documents or
assume any of the responsibilities of the contractor, subcontractor, or their
superintendents. This includes advisement on or issuance of instruction
concerning the constructor s techniques or performance of duties.
-------
9-22 RD/RA Implementation
9.2.G.4 Responding to
Immediate
Danger or an
Emergency
9.2.H
Pre-Final/
Final
Inspection
As work progresses, changes in construction may be required due to actual
field conditions or new interpretations of plans and specifications. The
RPM should utilize the oversight official and TRT to evaluate the impact of
changes on the remedial requirements of the project. Construction changes
should be evaluated quickly, since failure to do so could result in delay
claims from construction contractors. The RPM should also notify the
PRPs if such construction changes result in a significant change in EPA's
conduct of oversight.
In the event that any action during the performance of the remedial activi-
ties causes or threatens a release which may present an immediate danger to
the on-site construction workers, the PRP shall take actions in accordance
with the HASP. If there is a substantial danger to the off-site public health
or environment, the Contingency Plan shall be implemented. (For more
information see the "Guidance on EPA Oversight of RD/RAs Performed by
PRPs.") This plan is written for the local, affected population. In either
case, the RPM must be notified.
During an emergency, the RPM, oversight official, and TRT should closely
monitor the situation to determine that the HASP and Contingency Plan
are being implemented. EPA does have the authority to stop work on the
site if the conditions present an imminent and substantial endangerment to
public health or welfare or the environment.
The PRP conducts pre-final and final inspections with the RA contractor.
These inspections ensure that contract work is complete. EPA may or may
not be invited to attend these inspections; however, the RPM should receive
a copy of the pre-final inspection report prepared by the RA contractor's
construction manager. The PRP also conducts pre-final and final inspec-
tions of completed work widi EPA, the oversight official, and if necessary,
members of the TRT and other agencies with a jurisdictional interest in
attendance (e.g., the state). The purpose of die inspection is to determine if
all aspects of die plans and specifications have been implemented at die site.
If any items have not been completed, die PRP will develop a punch list
which details the outstanding items still requiring completion or correction
before acceptance of work. Acceptance of work may not be granted until
the startup and operation of treatment systems. This also may include a
demonstration diat performance standards have been met.
The RPM, oversight official, and/or TRT should take careful notes of all
corrective and extra work required to meet die requirements of die design
plans and specifications. These notes should be carefully compared to the
punch list developed by the PRP.
A final inspection should be conducted when all die items on the punch list
have been completed. All items indicated as requiring correction on die
punch list should be reinspected, and all tests that were originally unsatisfac-
tory should be conducted again. A final punch list should be developed for
any outstanding deficiencies still requiring correction.
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9-23
9.2.1 Remedial
Action Report
9.2.J Construction
Completion
At the completion of the RA and after correction of all punch list items, the
PRP (usually the Resident Engineer) prepares a Remedial Action Report,
which certifies that all items contained in the settlement agreement and any
incorporated documents (e.g., plans and specifications) have been com-
pleted. The report includes documentation (e.g., test results) substantiating
that the performance standards have been met, and also includes "Record
Drawings" of the project. The RPM, with assistance from the oversight
official and TRT, reviews die RAR, and verifies that all changes and varia-
tions from the original contract drawings have been made on "Record
Drawings." When all operable units are complete, the RPM initiates die
project completion and deletion process.
References
"Close Out Procedures for National Priorities List Sites," EPA 540-R-98-
016.
OSWER Directive 9355-0-39 FS, "Remedial Action Report" (June 1992).
At die end of construction for all Operable Units (OUs), the site can
achieve an EPA "construction completion" designation. This category
consists of sites awaiting deletion, sites awaiting deletion but for which
CERCLA section 121(c) requires reviews for the remedy no less often than
five years after initiation, and sites undergoing Long-Term Response Actions
(LTRAs). (See NCP, section 300.425 (d) (6)). Achieving this important
milestone does not limit or modify the PRP's requirements as outlined in
die CD or odier setdement documents. Once die RPM conducts the last
OU pre-final inspection and only minor punch list items remain, the RPM
will prepare a Preliminary Close Out Report (PCOR) and submit to
Headquarters for review. The designated regional official will sign die
amended PCOR and send it to Headquarters to be recorded as a site
construction completion.
References
"Close Out Procedures for National Priorities List Sites," EPA 540-R-98-
016.
OSWER Directive 9200.3-14-ID, Superfund/OilProgram Implementation
Manual (updated biennially).
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9-24 RD/RA Implementation
9.3
9.3.A
Remedial
Design
Activities
Planning and Reporting Requirements
RPMs must ensure that current information on RD/RA activities is entered
into CERCLIS 3/WasteLAN for the SCAR This section discusses the
planning and reporting requirements for RD/RA activities.
RD and RA activities are designed specifically for die site, OU, or project,
and are reported in WasteLAN. Initial schedules for RDs and RAs are
established when the RI/FS for the site is initiated. These initial schedules
should be updated in WasteLAN as better planning data become available.
RPMs are responsible for ensuring that accurate data are reported into
CERCLIS 3/WasteLAN. The RPMs should enter the data or provide the
information to the Information Management Coordinator (IMC) for entry.
RDs and RAs are tracked by SCAP through CERCLIS.
RDs are planned on a site-specific basis. Initial schedules for RD are
established when RI/FS activities are initiated at the site. The RPM should
ensure diat these initial schedules are updated in CERCLIS 3/WasteLAN as
more accurate planning data become available. There are two separate
SCAP activities, RD Start and RD Completion. Exhibit 9-7 summarizes
SCAP targets relevant to RDs.
9-7 SCAP Targets
Activity
Remedial Design
(RD) Starts
Fund
PRP
Federal Facility
Remedial Design
(RD) Completion
Fund
PRP
Federal Facility
SCAP
Planning
Planning
Measure
Planning
Planning
Measure
Quarterly
X
X
X
X
X
X
Annual
X
X
X
X
X
X
The following definitions are for RD starts and completions:
• RD Starts - The RD converts the remedy selected in the ROD into a
final design document for RA. The obligation of funds for design
assistance or technical assistance does not constitute an RD start.
Pre-design activities will not be counted as an RD start. The defini-
tion of accomplishment for an RD start depends on the lead.
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9-25
Fund-financed (Includes Fund- and state-lead events) - A Fund
RD start is counted when funds are obligated. An obligation is
made when:
• The Contract Officer (CO) signs a contract modification
for the RD.
• A Cooperative Agreement (CA) is signed by the Regional
Administrator or a designee.
• An Inter-Agency Agreement (IAG) is signed by the other
federal agency.
PRP-financed (Includes mixed funding federal/responsible party
(MR), responsible party (RP), and PRP response under state
oversight (PS) lead events) - For MR and RP-lead, the start is
credited on the date the earlier of the following actions takes
place:
• If RD activities are conducted prior to ROD signature and
there is not a new obligation of funds for a subsequent RD,
the start of RD begins upon the approval of the work plan
to conduct these activities. If there is a new obligation of
funds, the start of RD begins on the date when new funds
are obligated. When an RD has been prepared by other
parties or plans from a similar site will be used, the RD
start date is the same as the RA start date.
• The enforcement document under which the RD is to be
conducted, becomes effective:
For an AOC, this is the date of signature of the
AOC for RD by the RA or his designee, or the
date of signature of an amendment to an existing
AOC to include RD.
For a Unilateral Administrative Order (UAO), this
is the date of the PRP's written notice of intent to
comply with the UAO.
For a CD, this is either the date the CD is lodged
by the Department of Justice (DOJ), or the date
the CD is entered with the court (depending on
the wording of the CD).
• An official written notice to proceed is issued by EPA to
the PRP.
• For PS-lead sites, when the state issues an order or other
comparable state enforcement document for RD (or RD/
RA) or, if the RD is covered by a pre-existing state order,
when the state issues an RD notice to proceed. If PRPs are
doing the work in-house pursuant to an enforcement
setdement document, the start date is when EPA allows the
PRPs to proceed.
Separate Fund-, PRP-, and federal facility-financed RD start goals
are established prior to the fiscal year.
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9-26 RD/RA Implementation
• RD Completions - An RD is complete when the RD converts the
remedy selected in the ROD into a final design document for RA.
The definition of accomplishment for an RD completion depends
on the lead.
Fund-financed - For Fund or state-lead RD projects, an RD
completion occurs when EPA approves, in writing, the final
design document.
- PRP-financed - An RD becomes complete when EPA approves,
in writing, the final design document. For state enforcement-
lead (PS) RDs, die RD becomes complete when die state
approves die final design document.
Federal Facility - An RD becomes complete when EPA approves
the final RD package.
Separate SCAP targets are established for Fund/PRP versus federal
facility RD completions.
9.3.B RGITIGdidl Remedial actions are planned on a site-specific basis and reported in
Action CERCLIS 3/WasteLAN. The regions are responsible for identifying RA
A 4.- -4.- projects and associating planned obligations with these sites.
Four SCAP activities are tracked:
• RA Start.
• RA Contract Award.
• RA Completion.
• Final RA Completion.
RA completions and final RA completions are targeted on a combined basis.
In addition to RDs, RAs are tracked by SCAP through CERCLIS. Exhibit
9-8 summarizes SCAP reporting relevant to RAs.
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9-27
9-8 SCAP Targets/Measures for RAs
Activity
R A Starts
Fund
PRP
Federal Facility
RA Contract Award
Fund
PRP
RA Completion
Fund
PRP
Federal Facility
SCAP Reporting
Planning
Planning
Measure
Planning
Planning
Measure (part of
ACT-6 and ACT-7)
Measure (part of
ACT-6 and ACT-7)
Target
Quarterly
X
X
X
X
X
X
X
Annual
X
X
X
X
X
X
X
The following definitions are for RA starts and completions:
• RA Start - An RA start is the implementation of the remedy selected
in the ROD that is intended to ensure protection of human health
and the environment at a final NPL site. The definition of accom-
plishment for an RD start depends on the lead.
Fund-financed (Includes Fund or state-lead events) - Credit for
an RA start is given on the date a contract modification for the
RA is signed by the CO, or when the Interagency Agreement
(LAG) or CA is awarded and funds are obligated. This date is
entered into WasteLAN with the RA event.
- PRP-financed (Includes RP, MR or PS lead events) - Credit for
an RA start is given when one of die following occurs and has
been recorded in WasteLAN:
• If work is performed by the PRPs under die same CD or
UAO as die RD, the RA start occurs when EPA approves
the PRP RD package (RD completion).
• If die PRP conducts work under a state order or compa-
rable enforcement document, and die site is covered by a
state enforcement cooperative agreement or Superfund
Memorandum of Agreement (SMOA) (PS-lead) with a
schedule for RA work at the site, and EPA approved the
ROD, the RA start occurs when die state approves die
PRP RD package.
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9-28 RD/RA Implementation
• Where the Fund performed the RD or the RD was done
under a settlement/order for RD and the PRPs are doing
the RA under die terms of a CD, UAO or judgment for
RA only, the RA start is the date on which die PRPs
provide notice of intent to comply widi the UAO
(SubAction Name= PRPs Ntfy EPA, Intent to Comply) or
die date the CD is referred to Headquarters or die DOJ
(as recorded in WasteLAN). Where the PRP is in signifi-
cant non-compliance with die UAO, credit will be with-
drawn.
Federal Facility - Credit for an RA start is given on die
date when substantial, continuous, physical, onsite,
remedial actions begin pursuant to CERCLA section 120.
Federal facility RA starts are a SCAP measure.
The region should enter the Alternative Name, Media Name, Media
Type, and die technology of the RA into the Response Action Type
field (Selected Response Actions) and whether the RA is an early
action or long-term action (Critical Indicator=Early Action or Long-
Term Action). Fund and PRP RA starts are SCAP target planning
measures.
RA Contract Award - Award of die RA contract marks die initiation
of on-site construction activities for the remedy selected in the ROD.
Individual targets are negotiated in SCAP. An RA contract award
triggers die date for completion of five-year reviews. The definition
of accomplishment for an RA Contract Award depends on the lead.
Fund-financed (Includes Fund or state-lead events) - This
category includes sites where EPA, a state, USAGE, or BUREC
has awarded a contract to initiate a Fund-financed RA. If the
Alternative Remedial Contracting Strategy (ARCS) contractor is
assigned RA responsibility, the award of die RA contract is
defined as the date the RA subcontract is awarded. If the
Emergency Response Cleanup Services (ERCS) contractor will
be performing the RA, award of the RA contract is defined as
die obligation of funds to the ERCS contractor for the RA.
- PRP-financed (Includes RP, MR or PS lead events) - This
category includes sites where the PRP has begun substantial and
continuous physical action, which is equivalent to an EPA
contract award, or where the PRP has taken equivalent action
widi its own work force.
Federal Facility - At federal facilities, the date when die federal
agency begins substantial and continuous physical action at a
site, or the date when the federal agency takes equivalent action
widi its own work force, is treated as die equivalent of die award
of an RA contract. Federal Facility award of RA contract is a
SCAP measure.
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9-29
RA. Completion - An RA is complete when construction activities
are complete, a final inspection has been conducted, the remedy is
Operational and Functional (O&F), and an RA Report has been
prepared. This report summarizes site conditions and construction
activities for die OU.
Accomplishment means the date when the designated regional
official (branch chief or above) signs a letter accepting the RA Report
for the first or subsequent RA. The contractor's construction
manager submits a signed RA report to document the completion of
all construction activities for that OU, and that the remedy is O&F.
In lieu of a report from the contractors construction manager, the
region must prepare a report to document die completion. The
appropriate date must be recorded in WasteLAN widi the RA event.
Commitments are made on a combined Fund and PRP basis.
Federal facility RA completion commitments are made separately.
First and subsequent federal facility RA completions are SCAP
targets. Fund and PRP RA completions are separate targets in SCAP.
Final RA Completion - A final RA is complete when:
Construction for all OUs is complete.
A pre-final inspection has been conducted.
A PCOR has been prepared. This report documents the
completion of physical construction, summarizes site conditions
and construction activities, and, as appropriate, provides the
schedule for die joint final inspection (required before die start
of die O&F phase), approval of die O&M work plan, and
establishment of institutional control. The date of the Prelimi-
nary Close-Out Report should be reported in WasteLAN with
the RA Subevent, Preliminary Close-Out Report Prepared
(SubActionName= Prelim Close-Out Rep Prepared).
A final inspection has been conducted.
The remedy is O&F.
A letter accepting the RA report has been signed by the desig-
nated regional official. The date of die letter is entered into
WasteLAN as die RA completion date (Action Name= Remedial
Action or PRP RA).
An Interim Site Close-Out Report or Final Superfund Site
Close-Out Report (SCOR) has been prepared. An Interim Site
Close-Out Report (ICOR) should be prepared if die only
activity remaining is Long Term Response Action (LTRA).
The final RA is complete on the date the Regional Administrator
signs the Interim Site Close-Out Report or Final Superfund Site
Close-Out Report documenting completion of the final RA. The
appropriate date must be recorded in WasteLAN widi the Close-Out
Report RA subevent (SubAction Name= Close Out Report).
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9-30 RD/RA Implementation
The date of completion of the Preliminary Close-Out Report must
be entered into WasteLAN with the Preliminary Close-Out Report
Prepared subevent (SubAction Name= Prelim Close-Out Rep
Prepared). The date of the letter accepting the RA Report must be
entered into WasteLAN with the RA event (Action Name= Remedial
Action or PRP RA). The date the Regional Administrator signs the
Interim or Final Superfund Site Close-Out Report must be entered
into WasteLAN with the Close-Out Report subevent (SubAction
Name= Close Out Report).
RA completions are included in SCAP measure ACT-6 (completion of a
Response Action), and final RA completions are included in SCAP measure
ACT-7 (NPL Site Construction Completion). Federal Facility RA Comple-
tions are a SCAP Target.
Coding guidance for events (RI/FS, ROD, RD/RA) is being developed by
OERR/OPM.
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9-31
9.4
9.4.A Oversight
9.4.B Compliance
Incentives and
Assistance
Potential Problems/Resolutions
For PRP-lead RD/RAs, the oversight funding is obtained from the remedial
budget. If the RPM requires technical assistance in performing his/her
oversight responsibilities, the primary contract vehicles are ARCS and
RACs. RPMs also should be aware that the Agency encourages use of the
USAGE for providing technical assistance. In addition, in-house technical
assistance often is available (e.g., Office of Research and Development
(ORD), Office of Emergency and Remedial Response/Technology Innova-
tion Office (OERR/TIO)), which proves to be both cost-effective and
timely. In addition to contractor support, EPA should assemble a technical
review team comprised of various senior RPMs and specialty experts (e.g., a
wetlands expert to review wedand issues). EPA also can seek technical
advice through LAGs as vehicles to access specialty experts from such
organizations as the U.S. Fish and Wildlife Service (USFWS), NOAA, the
Bureau of Reclamation, and Marine Fisheries.
To enhance a cooperative problem-solving approach for the PRP-lead RD/
RA, the RPM should identify areas in which the PRP has achieved signifi-
cant success in remedying the problems caused by the hazardous substance
release. RPMs could acknowledge these accomplishments by suggesting
that regional management either send a letter to the PRP or provide public
acknowledgment in the media (newspapers, television, or radio). Perfor-
mance incentives are effective and inexpensive support for the PRP to
continue to achieve steady RD/RA implementation progress. Successful
PRPs also serve as role models for other PRPs.
Additional categories of compliance incentives include audit and compli-
ance management programs developed and maintained by die regulated
community, and partnerships between government and industry such as die
Environmental Leadership Program. These policies encourage voluntary
discovery, disclosure, and correction of violations or necessary cleanup
before government investigation or response.
The primary purpose of compliance assistance is to provide clear and
consistent descriptions of regulatory requirements to ensure that PRPs
understand their obligations and are able to meet die requirements of
environmental law. Additionally, compliance assistance can aid PRPs in
finding cost-effective ways to comply through the use of pollution preven-
tion and innovative technologies. General categories of compliance assis-
tance include the following:
• Outreach by EPA or the states through the use of compliance guides,
seminars, information services, and other means of assistance.
• Response to assistance requests.
• On-site assistance such as compliance consultations or audit manage-
ment programs.
One of the Superfund Reforms announced in 1995 was the initiative to
encourage and reward cooperative parties by reducing EPA oversight
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9-32 RD/RA Implementation
9.4.C Compliance
Monitoring
activities at sites where quality work is being performed by such parties.
This reform has been modified in recognition that, at all sites, RPMs strive
to conduct the appropriate level of oversight, which will mean more or less
oversight depending on numerous site-specific conditions. However, EPA
believes that by increasing communication, cooperation, and early planning
with PRPs, oversight activities and their resulting costs to PRPs can be
reduced. Regions should work with states, local governments, communities,
and PRPs, as appropriate, to develop effective partnerships in implementing
this initiative.
References
Office of Site Remediation Enforcement (OSRE), "Superfund Reforms
Annual Report FY1997."
OECA Memorandum "Operating Principles for an Integrated Enforcement
and Compliance Assurance Program" (November 27, 1996).
OSWER Directive 9200.4-15, "Reducing Federal Oversight at Superfund
Sites with Cooperative and Capable Parties" (July 31, 1996).
Compliance monitoring consists of activities designed to determine compli-
ance with applicable laws, regulations, permits, orders, and agreements.
These monitoring actions should aid review and evaluation of PRP activities
under Superfund. They should also determine whether conditions present _
an imminent and substantial endangerment. The basic categories of
compliance monitoring activities include the following:
• Surveillance - obtaining general site information prior to actual site
inspection.
• On-site Inspection - actual site inspection, traditionally confined to
one medium and potentially including sampling, observations,
record reviews, interviews, etc.
• Investigations - extensive study of a site or entity, potentially
warranted when an inspection or record review indicates the poten-
tial for serious, widespread, and/or continuing civil or criminal
violations.
• Record reviews - review of documents, possibly at several locations
including EPA, state, and local offices, and/or the facility.
• Targeted information gathering - compilation of detailed informa-
tion on the status of compliance and/or environmental conditions
including items such as emission/discharge rates, operating logs,
financial records, sampling results, etc.
If the RPM determines that the PRP is failing to comply with the terms of
the CD, the RPM should generally approach the problem in a constructive
manner. The RPM's first course of action is the following:
• Identify the problem and devise appropriate corrective action based
on the terms agreed to in the CD for addressing late or inadequate
performance by the PRPs.
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9-33
9.4.D Compliance
Enforcement
• Document thoroughly all contacts with the PRPs concerning the
inadequacies of their implementation.
• Discuss the proposed corrective action with regional management to
determine whether the RPM is maintaining a fair and consistent
regional approach in overseeing the PRP s response activities.
• Contact ORC for advice on how to proceed in the event enforce-
ment becomes necessary.
After determining whether the proposed corrective action is consistent with
the regions approach, the RPM should initiate a discussion with the PRP to
identify appropriate corrective actions. For example, die RPM could take
any one of the following types of corrective action:
• Send a warning letter to die PRP. describing the problem and the
desired response.
• Hold a formal meeting widi the PRP
• Provide die PRP widi additional guidance to clarify EPA require-
ments.
• Expand die level of EPA oversight by increasing the level of commu-
nications and number of site visits.
If the corrective actions do not alter the PRP s performance and significant
problems continue to persist, then the RPM may advise the Regional
Administrator to take one of die following corrective measures:
• Issue a Stop Work Order.
• Invoke stipulated penalties.
• Initiate administrative or judicial measures.
• Revert to Fund-lead RD/RA.
Before requesting the Regional Administrator to impose these measures, die
RPM must thoroughly document die specific problems and die corrective
actions attempted.
Reference
OSWER Memorandum, "Follow-up on Compliance Monitoring" (June 28,
1991).
Civil and criminal enforcement tools may be used to address issues of
imminent and substantial endangerment to human healdi, welfare, or die
environment; violation or non-compliance widi environmental law; and
recovery of costs for response actions. Enforcement tools also aid in elimi-
nating any economic advantage for non-complying parties as well as
providing a deterrent for similar behavior by odier parties.
Oral notification for violations is rarely appropriate as die sole enforcement
response. Therefore, written notice of a violation is the most suitable
enforcement action for minor or inadvertent, first-time violations. Written
notification is a required prerequisite for some statutes (e.g., Clean Air Act,
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9-34 RD/RA Implementation
Safe Drinking Water Act). Violations discovered through regular inspec-
tions, tips, complaints, or other compliance monitoring should be addressed
with judicial and/or administrative orders, penalty actions, or bodi. Cost
recovery actions are appropriate in cases of significant expenditures from the
Fund to conduct response actions.
9.4.E Site AcCeSS The PRP is responsible for obtaining the necessary site access. Securing
appropriate site access early in the RD phase will ensure that no unnecessary
construction delays will be caused by eidier the site owner or the adjoining
property owners. RPMs should check to see that the site access obtained by
die PRP extends for the duration of the RA and the O&M phases of the
response activities when appropriate.
Voluntary access should be obtained whenever possible. Techniques for
facilitating voluntary site access include personal contacts with adjacent
property owners and a good community relations campaign. If the PRP has
difficulty in obtaining voluntary site access, the PRP should notify the RPM
in writing. Upon receiving this written notice, the RPM should consult
with the regional counsel and the OERR Regional Coordinator for advice
and assistance.
Section 104(e)(5)(b) of CERCLA authorizes the Agency either to seek an
Administrative Order (AO) to prohibit interference widi entry or to go
direcdy to court to obtain compliance widi its requirement for entry. EPA
may use this audiority whenever it can establish that diere is a reasonable
basis to believe diat diere may be a release or a threatened release of a
hazardous substance and access is necessary to carry out response or to
determine need for response.
Urider section 106(a) of CERCLA, the government also may petition a
court to grant an injunction directing immediate compliance widi die
request for entry. This authority may only be invoked if EPA can show diat
diere is an imminent and substantial endangerment to public healdi and
welfare or the environment because of a release or direatened release from a
facility. A case example of a non-settling PRP denying site access to setding
PRPs is discussed below.
The issue of site access may cause problems when some, but not all, PRPs
agree to implement RD/RA activities under EPA supervision. The case of
U.S. v. Murtha in Region I illustrates diis point.
In Murtha, die Agency entered into a setdement agreement widi 32 corpo-
rations alleged to have generated hazardous waste. The terms of diis
agreement were embodied in a CD. It obligated die setding PRPs to
implement the remedy chosen by EPA for the site.
Most PRPs involved at die site were parties to die CD. However, the owner
of the facility failed to reach a setdement agreement with EPA. Although
the owner did not oppose EPA's right to access, the owner sought to block
die setding PRPs and their contractors from entering the site to conduct the
response activity because of his contention diat he would be liable for their
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9-35
negligence in carrying out the remedy. EPA brought suit against the owner
seeking an injunction requiring the owner to permit the settling PRPs to
enter the site.
The court decided that the owner of a facility does not have veto power over
necessary remedial actions. The court relied upon a broad interpretation of
section 106(a) of CERCLA to provide the authority for the settling PRPs to
gain site access. The court ruled that an owner-in-possession of a facility
cannot halt the remedial process merely because he did not join in a settle-
ment agreement with EPA. The court issued an injunction granting EPA
and the settling PRPs unrestricted access for the purpose of conducting
response activities at the site.
The Murtha case demonstrates how the problem of site access can be
addressed in situations in which section 104(e) of CERCLA is not sufficient
to provide what the Agency needs. Section 106 of CERCLA grants the
Agency authority to seek injunctive relief when a non-settling PRP seeks to
interfere with a PRP-conducted RA that it is undertaken pursuant to a CD.
Reference
OSWER Directive 9829-2, "Entry and Continued Access Under CERCLA"
(June 5,1987).
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10. Operation and
Maintenance
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10-i
Chapter 10 Operation and Maintenance
10.1 Description of Activity 1
10.2 Procedures and Interactions 2
10.2.A Settlement Negotiations 2
10.2.B Operation and Maintenance Plan 2
10.2.C Operation and Maintenance Manual 2
10.2.D Operation and Maintenance Oversight 3
10.3 Planning and Reporting Requirements 5
10.4 Potential Problems/Resolutions 8
10.4.A State Funding 8
10.4.B Transfer of Property 8
10.4.C RA Restart 8
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10—ii Operation and Maintenance
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10-1
Chapter 10 Operation and Maintenance
10.1 Description of Activity
The National Contingency Plan (NCP) 40 Code of Federal Regulations
(CFR) section 300.5 defines Operation and Maintenance (O&M) as
"measures required to maintain die effectiveness of response actions."
O&M generally will be required when waste has been left on site. O&M
activities may include periodic inspection and maintenance of waste
containment measures, long-term air or water monitoring, institutional
controls, leachate collection and treatment or disposal for source control
measures, or any other periodic activity necessary to ensure the continued
protection of public health and the environment. O&M activities for non-
ground water remedies begin after the remedy has achieved the Remedial
Action (RA) objectives and remediation goals in the Record of Decision
(ROD) or Consent Decree (CD) and is determined to be Operational and
Functional (O&F). The guidelines and types of activities required for
O&M at enforcement sites are identical to those at Fund-lead sites. At
Potentially Responsible Party-lead (PRP-lead) ground water sites, O&M
begins after the ground water system is considered O&F. Long-term
operation of a ground water system is considered to be part of O&M.
Consistent with the NCP and in Fund-lead situations only, the Fund may
be used for a period of up to 10 years following die O&F period to finance
efforts to restore contaminated ground water or surface water to a level that
ensures protection of public healrli and the environment. Activities required
beyond die 10-year period are considered O&M.
Fund resources cannot be used to perform O&M activities. At enforcement
sites, O&M may be conducted by the PRP(s), state, or other government
entity (such as a county government). EPA will not conduct or finance
O&M activities at Fund-lead or non-Fund-lead sites. O&M activities are
one of die key elements evaluated by EPA during five-year reviews of sites
where waste remains on site, preventing unlimited use and unrestricted
exposure, or where die attainment of cleanup levels that allow unlimited use
and unrestricted exposure will take longer than five years to achieve.
-------
10-2 Operation and Maintenance
10.2
10.2. A Settlement
Negotiations
10.2.B Operation
and
Maintenance
Plan
10.2.C Operation
and
Maintenance
Manual
Procedures and Interactions
It is essential that responsibility for O&M activities and oversight be
addressed during CD negotiations. A description of required O&M
activities and projected costs for the site should be available from the
Feasibility Study and/or the ROD. If not, it is the Remedial Project
Manager's (RPM's) responsibility to ensure that the Statement of Work
(SOW) clearly spells out the O&M activities, the level of oversight that will
be required, and the corresponding costs for use in negotiations. The
determination of responsibility for O&M and O&M oversight must be
made prior to signing the CD and must be set forth in the CD or
accompanying SOW. Every effort should be made to have the PRPs
perform die O&M. If die PRPs will not perform die O&M, then die
negotiation team should ensure diat die state will assume responsibility for
these activities.
During die Remedial Design (RD), an O&M plan shall be prepared that
clearly defines how the PRPs will perform die O&M activities required for
die site and provides a detailed cost estimate. This requirement should be
clearly defined in the SOW The O&M plan may be amended during
construction based on unexpected site conditions and die actual
characteristics of die implemented remedy. These changes to die O&M
plan must be made prior to the approval of die RA Report. Exhibit 10-1
sets forth die basic elements of an O&M plan. Many of die items in an
O&M plan will also be included in an O&M manual, but emphasis in an
O&M manual is generally placed on technical items rather than funding
and administration. At sites widi multiple Operable Units (OUs), it is
possible diat each OU will require a distinct O&M activity. In diis case,
die O&M activities for each OU will commence following completion of
the RA Report for that activity and EPA's acceptance of die work.
The O&M manual serves as a guide to understanding die purpose and
function of die equipment and systems making up die overall facility. The
manual provides all die technical information necessary to operate and
maintain the remedy as well as guidance for operators and die state after
state assumption of O&M responsibilities. Responsibility for developing
die manual is shared by the remedial designer and die RA contractor.
During the RD phase, the remedial designer drafts die O&M manual and
submits it as part of die design plan, accompanied by design plans and
specifications. The manual is finalized by die RA contractor during die RA
phase widi supplemental information specific to the actual equipment
installed. The design of die manual should lend itself to modification by
the RA contractor and state to reflect changing treatment system O&M
needs. The following sections are typically included in an O&M manual:
• System description (including design philosophy and operation and
control of die facilities).
• Personnel.
• Permits, standards, and approvals.
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10-3
10.2.D Operation
and
Maintenance
Oversight
• Community involvement.
• Laboratory testing.
• Records.
• Maintenance.
• Emergency operating and response program.
• Safety issues.
• Utilities.
• Electrical systems.
• Appendices (schematics, plans, as-builts, inspection checklists, etc.).
It is the responsibility of the RPM (with the help of in-house experts, die
United States Army Corps of Engineers, or a Response Action Contractor)
to review the draft of die O&M manual to ensure completeness,
consistency, and user-friendliness. The O&M manual becomes part of the
State Superfund Contract (SSC) or Cooperative Agreement (CA) for Fund-
lead sites, and should be referenced in the CD for PRP-lead sites.
Responsibility for oversight of O&M activities is set forth in die settlement
document. In cases where die state is a signatory of die CD, die state may
agree to assume responsibility for oversight. In all other situations, EPA will
provide oversight. The oversight agency must monitor die O&M activity
for compliance widi die terms of die setdement document and the O&M
plan. Oversight activities during die O&M phase include conducting
periodic site inspections (including review of on-site records and reports),
conducting ongoing monitoring and review of O&M reports, performing
five-year reviews, and oversight of odier state or PRP activities to ensure
O&M is being performed adequately.
References
The following references apply to diis section, but also provide a useful
context for Chapter 10 in its entirety.
"Close-out Procedures for National Priorities List Sites," EPA540-R-98-016.
Remedial Design and Remedial Action Handbook, EPA 540-R-95-059
Office of Solid Waste and Emergency Response (OSWER) Directive
9355.55-01 "Guidance on EPA Oversight of Remedial Designs and
Remedial Actions Performed by Potentially Responsible Parties" Interim
Final (February 1990).
OSWER Directive 9355.0-26, "Additional Clarification on Funding
Ground or Surface Water Restoration Actions" (February 1989).
-------
10-4 Operation and Maintenance
10-1 Basic Elements of an Operation and Maintenance Plan
A. Transfer of Operation and Maintenance (O&M) Responsibilities
1. Designation of the organizational unit of the state government responsible for
O&M.
2. Identification of the availability of state funding mechanisms for O&M activities.
3. Milestone dates for state assumption of O&M responsibilities.
B. Description of Normal O&M
1. Description of tasks for operation.
2. Description of tasks for maintenance.
3. Description of prescribed treatment or operating conditions.
4. Schedule showing frequency of each O&M task.
5. Summary of O&M performance standards.
6. Criteria for determination of Operational and Functional.
7. Completion of O&M (conditions for O&M termination).
8. Description of site use and disposition of facilities following completion of O&M.
C. Description of Potential Operational Problems
1. Description and analysis of potential operational problems.
2. Sources of information regarding problems.
3. Common remedies.
D. Description of Routine Monitoring and Laboratory Testing
1. Description of monitoring tasks.
2. Description of required laboratory tests and their interpretation.
3. Description of Quality Assurance/Quality Control protocols.
4. Schedule of monitoring frequency and when, if so provided, to discontinue.
E. Description of Alternate O&M
1. List of alternate procedures to prevent undue hazard in the event of systems failure.
2. Analysis of vulnerability and additional resource requirements should a failure
occur.
F. Safety Plan
1. Description of precautions, necessary equipment, etc., for site personnel.
2. List of safety tasks required in event of systems failure (may be linked to site safety
plan developed during remedial response).
3. Transition strategy for modifying existing site Health and Safety Plan and Quality
Assurance Project Plan.
G. Description of Personnel/Equipment
1. Summary of O&M staffing needs (including training and certification
requirements).
2. List of equipment necessary for plan.
3. Installation of monitoring components.
4. Maintenance of site equipment.
5. Replacement schedule for equipment and installed components.
H. Annual Budget (to be prepared by PRP or contractor performing O&M)
1. Cost of personnel.
2. Costs of preventive and corrective maintenance.
3. Costs of equipment, supplies, etc.
4. Costs of any contractual obligation (e.g., laboratory expenses).
5. Costs of operation (e.g., utilities, energy costs).
I. Records and Reporting Mechanisms Required
1. Daily operating logs.
2. Laboratory records.
3. Records for operating costs.
4. Mechanism for reporting emergencies.
5. Personnel and maintenance records.
6. Monthly/annual reports to state agencies.
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10-5
10.3 Planning and Reporting Requirements
O&M is made up of the activities required to maintain the effectiveness or
die integrity of the response. Section 300.435 (0(3) of die NCP states that
"for Fund-financed remedial actions involving treatment or other measures
to restore ground- or surface water quality to a level that assures protection
of human health and die environment, the operation of such treatment or
other measures for a period of up to 10 years after the remedy becomes
operational and functional will be considered part of the remedial action.
Activities required to maintain the effectiveness of such treatment or
measures following the 10-year period, or after remedial action is complete,
whichever is earlier, shall be considered O&M." The state or PRP is
responsible for these activities for the period specified in the ROD or odier
appropriate documents.
Section 300.435(f) of the NCP states that "operation and maintenance
(O&M) measures are initiated after die remedy has achieved the remedial
action objectives and remediation goals in the ROD, and is determined to
be operational and functional, except for ground- or surface water
restoration actions covered under 300.435(f)(4)-" As defined in the
Sup erfund Program Implementation Manual (SPIM), the start of O&M is the
date upon which the designated regional official signs a letter accepting the
RA Report. This report documents that work has been performed within
desired specifications and that the remedy is functioning properly and is
performing as designed. The completion (where appropriate) of O&M is
defined as the date specified in a CA, SSC, or CD.
O&M planning in the Comprehensive Environmental Response,
Compensation, and Liability Information System 3/Waste Local Area
Network is site-specific, and is used for resource allocation purposes only.
Funds for oversight of O&M are contained in the RA Advice Of Allowance.
O&M is not tracked by die Superfund Comprehensive Accomplishments
Plan.
Planning and reporting requirements are governed by die terms set forth in
the setdement document. Generally, cost documentation records must be
maintained for 10 years following the final claim in cases where
preaurhorization is part of the settlement. With the exception of Fund-
financed actions, EPA will not pay O&M costs. In some situations, "shake-
down" costs for a period of one year are eligible for reimbursement in
preaurhorization settlements. Shake-down costs are diose costs associated
with ascertaining that the remedy is O&F (i.e., operating as designed).
Routine reports that summarize O&M activities should be prepared by the
state or PRP on a regular basis (e.g., annually) and submitted to the RPM.
The reports include items such as data collection, sampling results, discharge
and emissions calculations, routine inspections, repairs, equipment
changeouts, regular updates of die O&M manual and as-builts, community
complaints and responses, and verification of the integrity of the
institutional controls. Special reports on safety, emergencies, and other
-------
10-6 Operation and Maintenance
unusual events such as fires, floods, or weather damage should be made
available to EPA and other interested parties in a timely manner, as
described in the terms of the SSC or CA for a Fund-lead site and the CD for
a PRP-lead site.
Five-year review reports also include a discussion of O&M activities. The
purpose of five-year reviews is to determine whether the RAs selected for a
site remain protective of human healdi and the environment. For sites at
which a post-Superfund Amendments and Reauthorization Act (SARA)
remedy, upon attainment of the ROD cleanup levels, will not allow
unlimited use and unrestricted exposure, section 121 (c) of the
Comprehensive Environmental Response, Compensation, and Liability Act
and section 300.430(f)(4)(ii) of the NCP require EPA to conduct a five-year
review. EPA also conducts policy reviews of sites where: 1) no hazardous
substances will remain above levels that allow for unlimited use and
unrestricted exposure after completion of the RA, but ROD-specified clean-
up levels will require five or more years to attain, and 2) sites addressed pre-
SARA at which the remedy, upon attainment of the ROD cleanup levels,
will not allow unlimited use and unrestricted exposure. In some instances,
the federal facility or state may conduct the five-year review.
For sites requiring five-year reviews, the federal facility, state, or PRP must
provide data to document O&M activities and the effectiveness of the
remedy at the site. PRPs may prepare a report or analysis based on these
data that EPA will adapt to create the five-year review report. Depending
on the type of remedy, these data may include records of equipment repairs,
system modifications, sampling results, discharge and emission compliance
reports, routine inspections, safety and emergency incident reports, and
verification of institutional control integrity. The RPM may request annual
O&M budget reports to assist in analyzing O&M activities and costs. Items
of concern which should be focused on in five-year reviews are those that
demonstrate the protectiveness and integrity of the remedy, or lack thereof.
These items would include matters such as unexpected increases in O&M
costs that may be an early indicator of remedy failure, ground water
sampling results demonstrating plume capture and progress in restoring an
aquifer, and maintenance logs indicating proper execution of the O&M
program.
References
SCAP/Oil Quick Reference Coding Guide.
OSWER Directive 9200.3-14-1D, SuperfundlOil Program Implementation
Manual (updated biennially).
OSWER Directive 9355-7-03A, "Second Supplemental Five Year Review
Guidance" (December 21, 1995).
OSWER Directive 9355J-02A, "Supplemental Five Year Review Guidance"
(July 26, 1994).
OSWER Directive 9355-7-02FS1, "Structure and Components of Five Year
Reviews" (August 1991).
-------
10-7
OSWER Directive 9355.7-02, "Structure and Components of Five Year
Reviews" (May 23, 1991).
National Oil and Hazardous Substances Pollution Contingency Plan, 40
Code of Federal Regulations (CFR) section 300.430 ("Remedial
Investigation/Feasibility Study and Selection of Remedy") (1990).
Note: The four Five-Year Review documents listed above are currently
being incorporated into a draft Five-Year Review guidance document.
-------
10-8 Operation and Maintenance
10.4
10.4.A
State
Funding
10.4.B
Transfer
of Property
10.4.C
RA
Restart
Potential Problems/Resolutions
RPMs should monitor the settlement negotiations closely to ensure that, in
instances where the state assumes O&M responsibility, the state can assure
funding for the duration of the O&M activities. Since state funding for
such activities is usually appropriated yearly, the state's assurance may
require special action by the state legislature to guarantee funding. Some
state statutes prohibit the use of public funds to maintain private property.
In these cases, the PRP usually must assume responsibility for O&M,
establish a trust fund, or make other arrangements to provide the state with
money for O&M.
RPMs, in conjunction with regional counsel, must ensure that the
settlement provides for continuation and financing of O&M in the event
that ownership of the property on which the site is located is transferred.
The settlement decision must contain assurances for O&M conduct and
financing in the event the property is sold. Restrictions on the use of such
property may be accomplished by means of institutional controls. Issues
related to property transfer and O&M assurances must be addressed on a
site-specific basis by regional counsel.
In certain instances, it may be difficult to determine when site activity falls
under the scope of routine O&M and when site activity actually represents
the restart of removal or remedial activity. For example, repairing a clay cap
may be a routine measure required to maintain the integrity of the remedy,
or it may be a removal action required to abate an immediate threat to
human health, welfare, or the environment.
To prevent confusion between O&M and the resumption of remedial
activity, the settlement document should contain a detailed description of
what constitutes a failed remedy. The settlement document also should
contain very specific criteria for determining whether an activity is part of
O&M or actual RA. Resolution of this issue may be accomplished through
careful examination of the provisions of the settlement and site conditions
by the RPM, regional counsel, the PRPs, and state technical personnel.
-------
11. Site Completion
and Deletion
-------
Chapter 11 Site Completion and Deletion
11.1 Description of Activity 1
11.1.A Introduction 1
11.1.B Responsibilities 1
11.1.B.1 Role of the Region and RPM 1
11.1.B.2 Role of Headquarters 2
11.1.B.3 Role of State or Tribe 2
11.1.C Statutory Authority 2
11.1.D Definitions 2
11.2 Procedures and Interactions 4
11.2.A Documentation of Site Completion 4
11.2.B Determination That Site Deletion Criteria Are Met 4
11.2.C Collection of Background Information 4
11.2.D Consultation with the State or Tribe 4
11.2.E Preparation of the NOID or NOIPD 4
11.2.F Public Involvement and Input 6
11.2.G Preparation of the Responsiveness Summary 6
11.2.H Preparation of the NOD or NOPD 6
11.2.1 State or Tribal Concurrence 6
11.2.J Public Notification of Deletion 6
11.3 Reporting Requirements 7
11.4 Potential Problems/Resolutions 8
11.4.A Disputes 8
11.4.B Concurrence 8
11.4.C Releases from Deleted Sites 8
11.5 Activities Checklist 9
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11—ii Site Completion and Deletion
-------
11-1
Chapter 11 Site Completion and Deletion
11.1
11.1.A Introduction
11.1.B Responsibilities
11.1.B.1
Role of
the Region
and
RPM
Description of Activity
Site completion and deletion from the National Priorities List (NPL) occur
for sites after completion criteria are met. Site completion signifies that all
response actions are complete, all cleanup levels have been met, and all
requirements specified in the Records of Decision (RODs) have been
implemented for die site. In most cases, the site deletion process begins
when the site completion milestone has been met. Site deletion is die
official determination by EPA that die site needs no further response under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA); partial deletion signifies diat a portion of die site, or an
entire medium at the site, meets the requirements for deletion from die
NPL. Public notification and state or tribal concurrence is required in the
deletion process.
Responsibilities for site completion and deletion fall with the region and
Remedial Project Manager (RPM), EPA Headquarters, and the state or
tribe. Their roles are discussed in the following sections.
The RPM verifies tiiat die site is eligible for site completion status by
applying site completion criteria. Once this status has been established, die
RPM either prepares a Final Close Out Report (FCOR) or, in the case of
state-lead sites, asks die state to prepare it. These reports are generally brief,
but may be longer at complex sites widi multiple Operable Units (OUs).
Headquarters and the state or tribe should have an opportunity to review
and comment on die report prior to final approval. Approval of die FCOR
by the Regional Administrator (RA) establishes diat either all appropriate
response actions have been taken or that no action is required at die site.
In general, die deletion process from the NPL may begin once a site reaches
the site completion milestone. In some cases, however, a site or portion of a
site can be deleted widiout meeting the site completion or construction
completion criteria. See Chapter 8, RD/RA Negotiations/Settlement, and
Chapter 9, RD/RA Implementation, for a more detailed discussion of
construction completion.
In most cases, die region initiates the deletion process; however, a state or an
individual may also begin die process by specifically requesting the site
deletion. The RPM initiates die deletion process by consulting widi die
appropriate state, obtaining state concurrence, compiling a deletion docket,
preparing a Notice of Intent to Delete (NOID) or a Notice of Intent for
Partial Deletion (NOIPD) for the public, arranging for its submission to die
EPA Headquarters Coordinator for review, and arranging for its publication
in die Federal Register. After a 30-day public comment period, the region
answers comments in a responsiveness summary and places a final Notice of
Deletion (NOD) or Notice of Partial Deletion (NOPD) in the Federal
Register. This signifies deletion of die site (or a portion of the site) from the
NPL.
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11—2 Site Completion and Deletion
11.1.B.2 Role of
Headquarters
11.1.B.3
Role of
State or
Tribe
11.1.C
Statutory
Authority
Headquarters reviews the FCOR before approval by the RA, reviews the
proposed and final NOIDs and NOIPDs for national consistency, and helps
prepare die responsiveness summary where appropriate.
The state or tribe has a variety of responsibilities throughout the completion
and deletion processes. The state or tribe may prepare the FCOR at state-
or tribal-lead sites and work with the region to determine if die site meets
the criteria for deletion. The state or tribe also reviews the NOID or
NOIPD and the NOD or NOPD prior to approval and publication. Sites
cannot be deleted or partially deleted unless die state or tribe concurs with
the deletion (see Section 4, Potential Problems/Resolutions).
The following statutory and regulatory authority relates to site completion
and deletion:
• Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, 42 U.S.C. 9601, et. seq., section 105.
• National Oil and Hazardous Substances Pollution Contingency Plan,
40 Code of Federal Regulations part 300.425(e).
11.1 .D Definitions The following definitions relate to die site completion and deletion process:
• Final Close Out Report (FCOR) - A report documenting compli-
ance widi die statutory requirements of CERCLA and providing a
consolidated record of all remedial activities at all of the site's OUs.
• No Further Response Needed - A decision that any of the three
criteria identified in the National Contingency Plan (NCP) are met
under 40 CFR 300.425(e)(l).
• Notice of Deletion (NOD) - A notice published in the Federal
Register announcing die deletion of a site from the NPL.
• Notice of Partial Deletion (NOPD) - A notice published in the
Federal Register announcing that a portion of a site is deleted from
the NPL.
• Notice of Intent to Delete (NOID) - The Federal Register Notice of
Intent to Delete a site from die NPL. The Notice contains informa-
tion about the site and related cleanup activities, and provides the
public with a 30-day comment period.
• Notice of Intent for Partial Deletion (NOIPD) - The Federal
Register Notice of the Intent to Delete a Portion of the site from the
NPL.
• Partial Deletion - The deletion of portions of a site, if diose releases
qualify for deletion. Such portions may be a defined geographic unit
of die site, perhaps as small as a residential unit, or may be a specific
medium at the site, e.g., ground water, depending on the nature or
extent of die release(s).
-------
11-3
Site Completion - The completion of all response actions at an NPL
site, as documented in a FCOR.
Site Deletion - The removal of a site listing from the NPL. Sites
may be deleted from the NPL when no further response is necessary
to protect public health or the environment.
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11—4 Site Completion and Deletion
11.2
11.2.A Documentation
of Site
Completion
11.2.B Determination
That Site
Deletion
Criteria Are
Met
11.2.C Collection
of
Background
Information
11.2.D Consultation
with the
State or
Tribe
11.2.E
Preparation
of the
NOID or
NOIPD
Procedures and Interactions
Exhibit 11-1 outlines the procedures for completion and deletion of a site
or portion of a site.
The RPM is responsible for preparing the FCOR, which must describe
completely all cleanup actions at the site and must provide the technical
justification for site completion. Generally, the FCOR does not signify that
the terms of Cooperative Agreements, Consent Decrees, or Administrative
Orders have been satisfied, nor does it signify resolution of contractual or
other administrative issues for Superfund activities. Deletion from the NPL
does not disqualify a site from the requirement of five-year reviews; if waste
is left onsite, five-year reviews must still be performed. The report is a final
record of the site and must be complete and able to stand alone. See
Chapter 8 RD/RA, Negotiations/Settlement, and Chapter 9, RD/RA
Implementation, for more information about site completion.
In order for a site to be deleted from the NPL, the RPM, in consultation
with the state or tribe, considers whether any of the following three criteria
has been met:
• Responsible parties or other parties have implemented all appropriate
response actions required.
• All appropriate Fund-financed responses under CERCLA have been
implemented, and no further action is appropriate.
• The Remedial Investigation has shown that the release poses no
significant threat to public health or die environment, and, therefore,
taking remedial measures is not appropriate.
The RPM next compiles background information on the site, including the
site history, a description of remedial activities undertaken, the extent and
nature of community involvement and notification, and the determination
that all appropriate CERCLA response actions have been completed in
accordance with the goals and objectives of the applicable ROD. This
information can usually be found in die FCOR. All appropriate
background materials and records should be placed in a deletion docket
created for the information repository.
The RPM consults with the appropriate state or tribal agency prior to •
developing the NOID or NOIPD. Sites are not deleted or partially deleted
from the NPL until the state or tribe has concurred with the deletion.
The RPM produces a NOID or NOIPD. This document informs the
public of EPA's intent to delete a site or a portion of a site from the NPL.
The NOID should contain general information about the site, a list of
contacts (including regional staff), and an outline of deletion criteria and
procedures. A NOIPD should contain similar information as the NOID,
but with stricter mapping and tracking requirements.
-------
11-5
11-1 Site Completion and Deletion Procedures
Start
Verify that Site Completion Criteria
Have Been Met
Draft FCOR
Obtain EPA HQ and State
Comments; Obtain Region and
State Peer Comments
Incorporate Comments into FCOR
Obtain Regional Administrator's
Signature and Send Copy of
Signed FCOR to EPA Headquarters
1
Obtain State Concurrence
Prepare Notice of Intent to Delete
(NOID) or Notice of Intent for
Partial Deletion (NOIPD); Obtain
EPA HQ Comments and Regional
Administrator Approval; Compile
Deletion Docket Material
Place Deletion Docket in Regional
Public Docket and Local
Repository
Publish NOID or NOIPD in
Federal Register
Provide 30-Day Public Comment
Period; Prepare Responsiveness
Summary, if Necessary, and Place
in Regional Docket and Local
Repository
[Prepare Notice of Deletion or
Motice of Partial Deletion; Publish
in Federal Register
-------
11—6 Site Completion and Deletion
11.2.F Public
Involvement
and Input
11.2.G Preparation
of the
Responsiveness
Summary
11.2.H Preparation
of the NOD
or NOPD
11.2.1 State or
Tribal
Concurrence
11.2.J Public
Notification
of Deletion
If a partial deletion is being undertaken, the RPM also completes a data
characterization package, including a Partial Site Deletion Collection Form,
and a map that clearly shows the entire site and the portion to be deleted
(including scale and date), widi site coordinates for at least three reference
points on the map. The map also must contain easily identifiable
landmarks such as roads and water bodies. Requirements for submitting
ensure diat complete copies of die deletion docket are placed in the
appropriate regional and local repositories.
Reference
"Notice of Policy Changes: Partial Deletion of Sites Listed on die NPL," 60
Federal Register 55466 (November 1, 1995).
Public notification is required in the deletion process. To ensure public
involvement, the RPM performs die following tasks:
• Publishes a NOID or NOIPD in the Federal Register diat includes a
solicitation of public comment for a minimum of 30 calendar days.
• Places copies of die information supporting die proposal of deletion
in the information repository.
• Publishes a notice of availability of die NOID or NOIPD in a major
local newspaper of general circulation.
The RPM prepares a responsiveness summary diat includes detailed
responses to each significant comment received during the public comment
period. Headquarters may provide assistance widi diis task where
appropriate. The summary is placed in the regional docket and in die local
repository.
Once die responsiveness summary has been approved by the RA and placed
in the proper repositories, the RPM produces a NOD or NOPD diat states
that all appropriate Fund-financed responses under CERCLA have been
implemented and that no further response is appropriate. It includes an
effective date, a regional contact, and supplemental site information.
The state or tribe has 30 working days to review the NOD or NOPD prior
to its publication in the Federal Register.
The final step in the deletion process is to place the NOD or NOPD in the
Federal Register. Site information should dien be entered into die
CERCLIS3/WasteLAN and Superfund NPL Assessment Program (SNAP)
databases.
-------
11-7
11.3 Reporting Requirements
In addition to submitting documents to Headquarters for approval, RPMs
also ensure diat accurate information is entered into CERCLIS 3/
WasteLAN for tracking purposes. This information includes die PGOR,
FCOR, NOID, NOPD, NOIPD, and NOPD.
-------
11—8 Site Completion and Deletion
11.4 Potential Problems/Resolutions
11.4. A Disputes The potential problem of disputes over deletion between the state and EPA
or between PRPs and EPA has not yet been faced. EPA may need to
develop guidance on this issue.
11.4.B ConCUITSnCG Sites cannot be deleted without state or tribal approval.
11.4.C
Releases
from
Deleted
Sites
All releases from sites deleted from the NPL are eligible for further Fund-
financed remedial action should future conditions warrant such action. If
there is a significant release from a deleted site, the site is restored to the
NPL without application of the Hazard Ranking System (see NCP section
300.430 (e)(3) for more information). Note that deletion of a site from the
NPL does not affect potential response party liability or impede Agency
efforts to recover costs associated with response actions.
Reference
National Oil and Hazardous Substance Pollution Contingency Plan, 40
Code of Federal Regulations section 300.430 ("Remedial Investigation/
Feasibility Study and Selection of Remedy") (1990).
-------
11-9
11.5 Activities Checklist
1) Produce FCOR to document site completion
2) Determine if site deletion criteria are met
3) Collect background information on site
4) Consult with state or tribe on site deletion
5) Produce a NOID or NOIPD
6) Notify die public and obtain public input
7) Prepare a responsiveness summary to public input
8) Prepare a NOD or NOPD
9) Obtain state concurrence on final deletion
10) Notify die public on final deletion
-------
12. Cost Recovery
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12-i
Chapter 12 Cost Recovery
12.1 Description of Activity 1
12.1.A Introduction 1
12.1.B Cost Recovery for Removals 3
12.1.C Cost Recovery for Sites in the Remedial Process 4
12.1.D Cost Recovery in Context of RD/RA Negotiations 4
12.1.E Case Referral 5
12.1.F Recovery of Oversight Costs 5
12.1.G Special Accounts 7
12.2 Procedures and Interactions 8
12.2.A PRP Searches 8
12.2.B Cost Recovery Strategy 9
12.2.B.1 Prioritization of Cases 9
12.2.B.2 Timing 10
12.2.B.3 Decision Not to Pursue Cost Recovery 11
12.2.B.4 Decision Document 11
12.2.C Notification and Demand Requirements 11
12.2.C.1 Special Notice Letters 12
12.2.C.2 Demand Letters 12
12.2.C.3 Types of Costs and Pre-Judgment Interest 13
12.2.D Documentation Requirements 13
12.2.D.1 Types of Expenditures 14
12.2.D.2 EPA Indirect Costs 14
12.2.D.3 Evidence 14
12.2.D.4 Cost Summaries 15
12.2.E Documentation Procedures 17
12.2.F Judicial Cost Recovery 20
12.2.F.1 Referral Package 21
12.2.F.2 Litigation Support 21
12.2.F.3 Litigation Management Plan 22
12.2.G De Minimis Settlements 23
12.2.G.1 Necessary Information 23
12.2.G.2 Release from Liability and Reopeners 24
12.2.H Administrative Settlements 25
12.2.1 Enforcing Settlements 26
12.2.J Arbitration 26
12.2.K Mixed Funding 28
12.2.L Orphan Shares 28
12.2.M Bankruptcy Actions 29
12.2.M.1 Statutory Background 29
12.2.M.2 Proof of Claim 29
12.2.M.3 Environmental Claims as Priorities 30
12.2.N Ability to Pay 30
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12—it Cost Recovery
12.3. Planning and Reporting Requirements 32
12.3.A Planning 32
12.3.B Budgeting 32
12.3.C Reporting Requirements 32
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12-1
Chapter 12 Cost Recovery
12.1 Description of Activity
12.1 .A Introduction When the Agency uses Fund monies for a response action not inconsistent
with the National Contingency Plan (NCP) at a site where there are
financially viable Potentially Responsible Parties (PRPs), it is authorized to
take an enforcement action against those PRPs to recover its costs. This
action, under Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) section 107, is known as a cost recovery action.
Cost recovery can be pursued for the costs of a removal, Remedial
Investigation/Feasibility Study (RI/FS), Remedial Design (RD), and
Remedial Action (RA), including EPA's costs of overseeing PRP responses.
The cost recovery actions taken may include issuance of demand letters,
negotiations with PRPs, Alternative Dispute Resolution (ADR),
administrative settlements, judicial settlements, and litigation.
Costs incurred by EPA under Resource Conservation and Recovery Act
section 7003 also may be recoverable under CERCLA section 107. Courts
have generally agreed that EPA can recover certain costs under section 107
for actions taken under other statutory authority as long as each of the
elements of section 107(a) is satisfied. This means that the costs were: 1)
incurred as part of a removal or RA; 2) incurred in responding to a release or
direatened release of a CERCLA hazardous substance; and 3) not
inconsistent with the NCP
This chapter provides Remedial Project Managers (RPMs) and On-Scene
Coordinators (OSCs) with an overview of the central components of cost
recovery actions. The information is organized to follow the chronology of
tasks that an RPM/OSC manages in a cost recovery action.
There are two major types of cost recovery actions:
• Cost Recovery for Removals.
• Cost Recovery for RAs.
As part of each type of cost recovery action, EPA may recover past and
future response and oversight costs, indirect costs, and interest. Cost
recovery cases are not limited to one type of cost, but may include die direct
and indirect costs related to remedial and removal actions plus interest on
these costs. All costs directly related to a specific cleanup are direct costs.
Indirect costs include things such as employee overhead, rent, electricity, etc.
Documents relevant to all aspects of die case must be compiled to support
cost recovery. EPA must file cost recovery actions within certain periods
specified in die statute. These statute of limitations (SOL) dates are
discussed later in this chapter.
Each type of cost recovery action is discussed briefly below and
Exhibit 12-1 presents die process for each type of action.
-------
Cost Recovery For
Oversight Costs
Without RD/RA
Settlement
Cost Recovery For
Remedial Sites
With RD/RA
Settlement
Cost Recovery For
Conventional Removals
and Remedials With
More Than 3 Years
from ROD or RD to RA
Settlement
for PRP
Response
Cost
Documentation
•v^
Demand Letters
Collection
May Repeat Annually
Remedial
Design Near
Completion
Review PRP
Search and
Upgrade as
Necessary
}
/
Decision to
Pursue Cost
Recovery
|NO
Close-out
Memo
YES
Ensure
Adequate
Evidence
on Liability
Activity/Cost
Doc.
Compile and
Cert. AR
Demand Letters
IS)
O
o
(D
O
O
o
o
(D
8
?
s>
Full
Settlement
Referral
Package
Finalize
Full
Settlement
Removal
Completion
or ROD
or RD
Review PRP
Search and
Upgrade as
!/
Decision to
Pursue Cost
Recovery
i
NO
f
Decision
Document
YES
Ensure
Adequate
Evidence
on Liability
Activity/Cost
Doc.
Ensure
Compilation
of AR
^ Demand ^
Necessary
-------
12-3
12.1.B Cost
Recovery for
Removals
During the course of the Fund-lead removal action, die OSC is responsible
for compiling die Administrative Record (AR) with assistance from regional
counsel and the Administrative Record Coordinators, obtaining
information on die identities of PRPs, and documenting die removal work
undertaken and die costs incurred. As die removal proceeds, die OSC
works widi regional counsel to complete the PRP search information. After
the removal is completed and die OSC files die final report for the action,
the Agency must decide whedier to pursue cost recovery for its expenses. In
selecting which sites to pursue, die Agency places a higher priority on sites
at which more than $200,000 was spent on die removal action. If die
Agency decides to proceed with cost recovery, diree parallel activities are
conducted: 1) ensuring that die liability information collected in die PRP
search meets evidentiary standards; 2) documenting die costs of the removal
acdon; and 3) reviewing the compilation of die AR. Check widi regional
management to identify die staff who perform diese tasks as diey vary by
region. The first activity should be performed as die PRP search proceeds.
Once die Agency's costs have been documented and die PRPs are reasonably
well identified, EPA sends demand letters to die PRPs. The demand letters
notify die PRPs of their liability for the Agency's cleanup costs, demand
payment of die full cost of cleanup, and start die accrual of interest on costs.
In a limited number of situations, die PRPs will respond to die demand
letters by reimbursing die Agency immediately. After demand letters have
been sent, follow-up phone calls may serve as an effective means to explain
both what the demand letter means and, for those PRPs who are unfamiliar
widi it, die Superfund process. In most situations, die PRPs will seek to
negotiate widi the Agency over the extent of their liability for the costs
incurred. If diese negotiations result in a settlement, EPA and die PRPs
may enter into an administrative cost reimbursement settlement pursuant to
CERCLA section 122(h)(l) (or an Administrative Order on Consent
(AOC) if die setdement calls for performance of a removal action as well as
payment of costs). If die total response costs of the United States at the site
exceed $500,000 (excluding interest), die Department of Justice (DOJ)
must concur on die terms of die setdement.
If die PRPs refuse to reimburse EPA for diese costs, die region will decide
whedier to refer die case to DOJ to recover the money. When deciding
whedier to initiate a judicial action, die region reviews die case's priority
(see secdon 2, "Prioritization of Cases") and all available evidence, and
evaluates die likely success of cost recovery efforts for dial particular site. If
the region decides to initiate die suit, die case will be referred to DOJ by a
litigation referral. In general, cost recovery cases involving post-Superfund
Amendments and Reaudiorizarion Act (SARA) removals (except those widi
section 104(c)(l)(C) waivers) must be filed widiin an SOL dated diree years
after completion of die removal.
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12—4 Cost Recovery
12.1.C
Cost
Recovery
for Sites
in the
Remedial
Process
12.1.D
Cost
Recovery in
Context
of RD/RA
Negotiations
Reference
Office of Site Remediation Enforcement (OSRE) Memorandum, "Guidance
on Administrative Response Cost Settlements under Section 122(h) of
CERCLA and Administrative Cashout Settlements with Peripheral Parties
under Section 122(h) of CERCLA and Attorney General Authority"
(September 30, 1998).
Cost recovery activities at sites in the remedial process may include past
expenditures for removals, RI/FS, or RD. The outcome of RD/RA
negotiations and timing concerns related to possible SOL dates affect
remedial cost recovery. When EPA incurs cleanup costs at a remedial site,
there are five basic contexts in which it may recover its costs:
• The Agency funds removal action or RI/FS, and PRPs agree to
fund RD/RA. The Agency usually recovers removal and RI/FS costs
from the PRPs as part of the RD/RA settlement.
• The Agency funds a removal action or RI/FS; one group of PRPs
agrees to perform the RD/RA, but another group does not. The
Agency may sue the non-setdors separately for all or part of the
removal and/or RI/FS costs.
• The Agency funds the RD/RA because there was no settlement.
The Agency may seek to recover the costs of die entire response in a
cost recovery action, which should be developed early in the remedial
construction.
• The period between completion of a Fund-lead removal action,
RI/FS, or RD and initiation of on-site construction of a Fund-
lead RA is likely to exceed three years. EPA will sue to recover the
costs of the response activity prior to the three-year break, and
subsequendy amend the complaint to add die costs of later activity.
• The site has multiple remedial Operable Units (OUs). On the
assumption diat there may be different SOL dates for different OUs,
EPA will sue to recover the costs incurred at the first OU. If there
are no apparent divisibility issues among the OUs, EPA will seek a
declaratory judgment for costs at the remaining OUs, and, if neces-
sary, sue to recover costs at the remaining OUs as they are incurred.
If there are divisibility issues among die OUs, EPA will pursue
separate cost recovery actions.
When the Agency negotiates widi the PRPs to perform the RD/RA at the
site, all recoverable past costs will be pursued as part of die overall
negotiations. If, however, die Agency is pursuing remedial response costs
separately from a setdement for RD/RA, separate cost documentation and
demand letters will be required. Refer to Chapter 7, RD/RA Negotiations,
for a more detailed discussion of die process of RD/RA negotiations.
The RPM works with regional counsel and the Civil Investigator (CI) to
assure that the five major pre-litigation activities involved in remedial cost
recovery are performed. These activities can be performed concurrently and
usually occur near the time that the Record of Decision (ROD) is signed,
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12-5
12.1.E
Case
Referral
12.1.F Recovery of
Oversight
Costs
although their timing may vary when the Agency is seeking to recover other
costs (e.g., removal, RI/FS) as well. Cost recovery personnel must:
• Ensure that the PRP liability information meets evidentiary stan-
dards.
• Complete and certify the AR.
• Document the work performed and the costs of the removal, reme-
dial, and oversight activities undertaken.
• Send demand letters to the PRPs, either as pan of Special Notice
Letters (SNLs) or separately.
• Negotiate with the PRPs about their liability and the extent of EPA's
costs.
If this process is successful and the PRPs agree to reimburse the Agency for
its costs, the setdement usually will result in a Consent Decree (CD).
If the PRPs do not agree either to perform the RD/RA or reimburse die
Agency's costs, EPA will develop a case to sue some or all of the PRPs.
depending on the universe of PRPs, their liability and financial viability, and
their contributions. This case, developed at die time the RA starts, will seek
to recover EPA's past and future costs, plus interest. This process begins
with the Case Team's preparation of a litigation referral package which will
be sent to DOJ for action. The referral package must contain all pertinent
facts and documents concerning die response decision and underlying
record. The principal components of the litigation referral package include
documentation of PRP liability, defenses, and viability; the work dial was
performed during the response activities; and the cost of diose activities.
DOJ places particular emphasis on the work performed package, because it
ensures that the court knows what work was performed at die site. Work
performed documentation includes mondily contractor progress reports,
copies of deliverables received, action memos, and RODs. Assembling cost
documentation will require die Case Team to coordinate its efforts widi
regional financial personnel, the Financial Management Division (FMD),
and die Office of Site Remediation Enforcement (OSRE).
After the completed referral package is sent to DOJ, members of the Case
Team will be called upon to perform litigation support activities. This may
involve consultation widi regional counsel on technical aspects of response
authorization, time-consuming involvement in complex litigation, and
testimony in court. The RPM/OSC must budget and manage litigation
support contractors, and can expect to be called upon to provide his/her
technical expertise to help prosecute the cost recovery case.
Costs associated with oversight of PRP response actions, including removal
actions, are fully recoverable under section 107 of CERCLA CERCLA
section 104 requires that, before die authorization of a PRP's conduct of the
RI/FS, the PRP agrees to reimburse die Agency for RI/FS oversight costs.
In other contexts, this reimbursement of oversight costs is required by EPA
policy. The agreement to pay EPA's oversight costs is usually a part of die
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12—6 Cost Recovery
settlement document for the PRP's response action. In order to minimize
disputes and replenish the Hazardous Substance Superfund as quickly as
possible, it is essential that projected oversight activities and oversight billing
be discussed with PRPs during settlement negotiations. The consent
agreement should specify the cost documentation to be provided by EPA.
For each PRP or group of PRPs that has an agreement to pay oversight
costs, EPA will issue an oversight bill that includes appropriate cost
documentation or, if the region will not issue a bill (e.g., in cases where
special accounts are used to pay oversight costs), provide an accounting of
costs. It is essential to identify and resolve any oversight disputes early. The
Agency policy is to bill PRPs annually. PRPs reimburse the Agency
according to the schedule set out in the settlement document. RPM/OSCs
should provide a copy of the settlement document to financial management
so an account and tentative billing schedule can be established.
In United States v. Rohm and Haas Co., 2 F.3d 1265 (1993), the U.S. Court
of Appeals for the Third Circuit ruled that the costs of EPA's oversight of an
RA conducted by a private party cannot be recovered under CERCLA. This
aspect of the Rohm and Haas decision has not been followed outside the
Third Circuit, but it is the law in parts of Regions 2 and 3.
References
OSRE Memorandum, "Guidance on Administrative Response Cost
Settlements under Section 122(h) of CERCLA and Administrative Cashout
Settlements with Peripheral Parties under Section 122(h) of CERCLA and
Attorney General Authority" (September 30, 1998).
Office of Enforcement and Compliance Assurance (OECA) Memorandum,
"Guidance on the Use of Section 7003 of RCRA" (October 20, 1997).
OSRE Memorandum, "Issue of'Model CERCLA Section 107 Consent
Decree for Recovery of Past Response Costs' and 'Model CERCLA Section
122(h)(l) Agreement for Recovery of Past Response Costs'" (September 29,
1995).
OSRE Memorandum, "Cost Recovery Cases Where Site Costs Total Less
Than $200,000" (April 26, 1995).
Office of Solid Waste and Emergency Response (OSWER) Directive
9835.11-1, "Model Litigation Report for CERCLA sections 106 and 107
and RCRA Section 7003 Actions" (June 21, 1989).
OSWER Directive 9832.13, "The Superfund Cost Recovery Strategy" (]uiy
29, 1988).
OSWER Directive 9832.11, "Guidance on Documenting Decisions Not to
Take Cost Recovery Actions" (June 7, 1988).
OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs for
CERCLA Section 107 Actions" Qanuary 30,1985).
OSWER Directive 9832.1, "Cost Recovery Actions Under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA)" (August 1983).
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12-7
12.1 .G Special ln October 1995, EPA announced its intention to encourage greater use of
Accounts special accounts as a means to ensure that settlement funds received would
be used for future response actions at a particular site. In June 1996, the
Agency reached agreement widi the Office of Management and Budget and
the Department of Treasury that the interest earned by site-specific special
accounts can be credited to these accounts and used to fund future response
actions at the sites in question. As only the portion of settlement funds that
represents payment towards future costs can be placed in a special account,
it is critical to clearly state in the settlement document, in dollar amounts or
percentages, what portion of the overall proceeds are in recognition of future
costs and to be placed in a special account. Designation of how payments
are to be treated is essential because, if payments are not identified in this
way, the regional finance office may apply payments in a manner inconsis-
tent with what the settlors originally intended. For existing setdements
where past and future costs have been designated in the settlement docu-
ment, the region should consider whether to establish a special account for
the future costs component. Where such situations exist, the regional
program office should submit a memorandum to the regional finance office
asking it to set up a special account for that site.
Agency guidance sets forth specific requirements and procedures for dis-
bursement of special account funds to a PRP. The guidance addresses,
among other things, the circumstances under which a PRP may receive
funds from a special account (e.g., if it agrees to perform a response action
under a settlement agreement), the timing and amount of disbursements,
and disposition of remaining amounts in the special account after work is
complete. Prior written approval of the Director of OSRE's Regional
Support Division (RSD) is required before making an offer to a PRP that
includes the disbursement of special account funds to a PRP. The final draft
of the settlement agreement also must be submitted to die RSD Director for
review and approval.
The Office of the Comptroller's Financial Management Division is currently
finalizing guidance for administering Special Accounts as part of its ongoing
revisions of the Resources Management Directives System (RMDS), 2550D,
Financial Management of the Superfund Program. The guidance will be
added to RMDS 2550D as Chapter 15, "Financial Management of Cashout
Special Accounts." The draft will serve as interim policy until it is approved
and cleared for publication.
References
OSRE Memorandum, "Interim Final Guidance on Disbursement of Funds
from EPA Special Accounts to CERCLA Potentially Responsible Parties"
(November 3, 1998).
OSRE/Office of the Comptroller, "Update and Implementation of the
Superfund Reform on Special Accounts" (February 7, 1997).
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12—8 Cost Recovery
12.2
12.2.A PRP
Searches
Procedures and Interactions
CERCLA establishes the liability of responsible parties for the costs incurred
by the government when responding to a release of hazardous substances
(see Chapter 3, Establishing CERCLA Liability, for a detailed discussion).
There are two key statutory provisions:
• Section 107 of CERCLA authorizes the Agency to seek cost recovery
and pre-judgment interest through judicial action.
• Section 122(h) of CERCLA authorizes the Agency to enter into
administrative settlements with PRPs, but requires DOJ approval
when the total response costs of the United States at the site exceed
$500,000. The audiority to settle cost recovery cases administra-
tively was delegated to the Regional Administrators (RAs) by Delega-
tion 14-14-D (Sept. 21, 1987) and re-delegated within many
regions. Section 122(h)(3) of CERCLA provides die Agency with
the authority to enforce these settlements.
The Agency's cost recovery strategy emphasizes negotiating administrative
settlements whenever possible and litigating only when necessary.
PRP searches are collections of evidence of the PRPs' liability and financial
viability, and are very important in every aspect of dealing with the PRPs. A
PRP search dial produces strong evidence will help EPA negotiate a more
favorable setdement. In cases in which die PRPs refuse to conduct the
response activity or to reimburse the government's costs, PRP searches
provide much of die evidence of liability that will be used in future
litigation.
The PRP search is a collection and analysis of information about each PRPs
connection to the site. It includes title searches, a review of existing
documentation such as waste manifests, responses to CERCLA section
104(e) information requests, interviews with knowledgeable parties, review
of corporate research, and analyses of waste-in information. From diis
information a PRP Search Report is developed which describes in detail
each PRPs involvement widi the site and die evidence diat proves that
involvement.
Although the exigencies of die particular site and die value of die response
action dictate die scope of die initial PRP search, die PRP search is a
fundamental component of a response action. The search should be
initiated as early as possible to assist in developing a site-specific
enforcement strategy. The PRP search generally continues throughout die
response activity at a site, and supplemental investigative work may be
necessary for cost recovery.
PRP searches are discussed in detail in Chapter 4, PRP Search, Notification,
and Information Exchange.
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12-9
12.2.B
12.2.B.1
Cost
Recovery
Strategy
Prioritization
of Cases
References
OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for
Sites in the Superfund Remedial Program" (June 29, 1989).
OSWER Directive 9834.6, Potentially Responsible Party Search Manual
(August 27, 1987).
EPA's cost recovery strategy sets forth the Agency's priorities for cost
recovery and the steps that each response action must go through for
settlement, litigation, or site close-out.
Once a response activity has been identified as a cost recovery candidate,
regional management prioritizes die cases to ensure that regional resources
are efficiently used to meet die objectives of die cost recovery program,
which are to:
• Maximize return of revenue to the Fund.
• Initiate enforcement activity within strategic time frames, but no
later than the date defined by the applicable SOL.
• Exploit deterrent effect of litigation to encourage recalcitrant parties
to setde.
• Use administrative authority and dispute resolution procedures.
The Office of Solid Waste and Emergency Response (OSWER) has
developed the following case priorities for cost recovery at sites widi
financially viable PRPs:
1. National Priorities List (NPL) and non-NPL sites at which EPA has
completed a removal action (including expanded removal actions,
RI/FSs, and initial remedial measures), die response costs are
$200,000 or greater, and die SOL deadline is approaching.
2. Cases in which Fund-financed RD/RA has been initiated; a remedial
case referral to DOJ should be scheduled for every site in diis
category.
3. Sites at which diere has been a partial setdement providing the
Agency widi less dian full relief and there are viable non-setdors.
4. NPL or non-NPL sites at which EPA has completed a removal action
and die costs of response are $200,000 or greater. Depending upon
resources, referrals to DOJ on these sites should occur no later than
12 months after the completion of the removal action.
5. Sites at which total response costs are less dian $200,000; current
Agency guidance states diat regions "do not have to pursue such cases
vigorously (e.g., conduct extended PRP searches or send numerous
demand letters and information requests), because it is likely diat die
cost of collection will exceed the amount recovered."
In addition to these five priorities, the Agency will pursue cost recovery
against PRPs diat are undergoing bankruptcy proceedings in limited
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12—10 Cost Recovery
12.2.B.2
circumstances. Bankruptcy referrals pose a difficult problem for four
reasons: 1) lack of PRP unencumbered resources; 2) time constraints; and 3)
EPA resource limitations. RPMs should work closely with regional counsel
and OSRE's Regional Support Division to resolve any bankruptcy issues.
Timing RPMs/OSCs must be aware of statutory time limits for filing cost recovery
actions. A case cannot be filed after the statute of limitations has expired.
Section 113(g)(2) of CERCLA states that a cost recovery action must be
initiated within:
• Three years after completion of a removal action or six years after the
signature date of the removal waiver.
• Six years after initiation of physical on-site construction of the RA.
For purposes of defining the cost recovery SOL, removal actions include
traditional removals, RI/FSs, and RDs. The SOL for a removal action (as
defined above) is three years from the completion of the last removal action.
For example, if a removal, RI/FS, and RD are conducted, the SOL would
be three years from the completion date of the RD. All information should
be verified, as mistakes can doom a cost recovery action.
Sites where the SOL is near expiration can be identified using EPA's Cost
Recovery Targeting Report. By merging information on Comprehensive
Environmental Response, Compensation, and Liability Information System
(CERCLIS) planning obligations with IFMS data, this report presents a
complete picture of recoverable past costs and the status of all past, ongoing,
and planned efforts to address them.
CERCLA 113(g)(2) indicates that removal costs may be pursued as part of
the cost recovery for RAs if the RA is initiated within three years of the
completion of the removal.
In summary, a removal (not including an RI/FS) may be ready for cost
recovery when it is completed. Remedial sites are ready for referral when
on-site construction of the RA is initiated. Removal, RI/FS, and RD
response costs may be pursued as part of RA cost recovery, unless the RA
will not begin widiin three years of the completion of the last response
action. If the RA does not begin within three years, the removal, RI/FS, or
RD costs should be sought separately.
Cost recovery actions for removals should be referred to DOJ as soon as
possible after the action has been completed, ideally not later than one year
after the completion date. Cost recovery actions for remedial responses
should be referred at the time of initiation of physical, on-site construction
of the RA. RPMs/OSCs should anticipate that it takes at least two quarters
to prepare a referral package. RPMs/OSCs also must be aware that special
circumstances, such as bankruptcy, impending fraudulent transfer of assets,
or the voluntary dissolution of die business of a PRP may require that a cost
recovery case be filed on an expedited basis in order to ensure maximum
recovery for EPA. The importance of clearly documenting when a removal
action was completed or a remedial action was initiated cannot be
overemphasized.
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12-11
12.2.B.3
Decision
Not to Pursue
Cost Recovery
12.2.B.4
Decision
Document
12.2.C Notification
and Demand
Requirements
References
OSRE Memorandum, "Cost Recovery Cases Where Site Costs Total Less
Than $200,000" (April 26, 1995).
OSWER Directive 9832.9, "Cost Recovery Actions/Statute of Limitations"
(June 12, 1987).
The region may decide not to pursue cost recovery at a particular site after
analyzing the site's cost recovery potential. Such decisions must be
documented in a Decision Document (DD) and entered into WasteLAN.
Information gathered during the PRP search, removal action, and the RI/FS
forms the basis of the decision not to pursue cost recovery. The possible
reasons for a region to decide not to pursue cost recovery include:
• No PRPs were identified for the site.
• PRPs identified were not financially viable.
• Available evidence does not support one or more of the essential
elements of a prospective case, and there is no reason to believe that
such evidence can be discovered in the future.
• Very small expenditures were incurred for the site and there are
inadequate resources to litigate.
The DD is written by the enforcement or removal program staff person
assigned to the case in consultation with regional counsel, and signed by the
regional program director. The DD and its supporting documents are
considered confidential; therefore, it should not be placed in the AR.
Chapter 15, Records Management, discusses how to handle confidential
files. Current Agency guidance states that regions may prepare an
abbreviated DD for cases where total response costs are less than $200,000.
References
OSRE Memorandum, "Cost Recovery Cases Where Site Costs Total Less
Than $200,000" (April 26, 1995).
OSWER Directive 9832.12, "Transmittal of the Superfund Cost Recovery
Strategy" (July 29,1988).
OSWER Directive 9832.13, "Guidance on Documenting Decisions Not to
Take Cost Recovery Actions" (June 7, 1988).
Under CERCLA and current Agency policy, there are several different
opportunities to notify PRPs of their potential liability for cleanup costs.
For cost recovery purposes, the most important opportunities are the
issuance of letters that include demands for reimbursement, such as notice
letters or demand letters.
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12—12 Cost Recovery
12.2.C.1 Special Pursuant to CERCLA section 122(e)(l), SNLs are issued prior to Non-
Notice Time-Critical (NTC) removals, RI/FSs, and RD/RAs. Although a primary
Letters purpose of these letters is to facilitate negotiations for prospective work, the
letters also serve as a vehicle to put past costs into the negotiations and
trigger pre-judgment interest. Planning for NTC removals, RI/FSs, and
RD/RAs should include documentation of past costs. SNLs should include
a demand for past as well as prospective work or costs. EPA may decide not
to use these special notice procedures; however, pursuant to CERCLA
section 122(a), EPA must notify the PRPs in writing and indicate why these
procedures are inappropriate.
References
OSRE Memorandum, "Transmittal of Sample Notice Letters: 1) Demand;
2) General Notice; 3) Special Notice; and 4) Follow-Up 104(e)" (July 26,
1996).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange" (October 19, 1987).
12.2.C.2 Demand As a matter of policy, EPA sends a written demand letter to the PRPs prior
Letters to filing a cost recovery lawsuit. A demand letter is a request that the PRPs
reimburse the Fund for a specified amount, which is generally associated
with one or more response activities. Also, the written demand letter
triggers die accrual of pre-judgment interest on die response costs sought.
The authority to issue demand letters has been delegated to die Regional
Administrators. RPMs should consult with regional management to
determine who has authority to prepare and issue demand letters in die
region.
Demand letters may be sent to each PRP for each separate response activity,
such as removals, RI/FSs, RDs, and RAs, or for combined activities as
appropriate. The optimum time for issuing demand letters varies,
depending on the nature of the response. In coordination with regional
counsel, the OSC should issue the letter for removal actions soon after the
removal activities are completed and all necessary documents are compiled.
For each OU of RAs, a letter should be issued for the RI/FS costs, RD costs,
and major phases of RA costs at the following times: in connection widi die
ROD (in special notice), soon after the RD is completed, and soon after
major phases of the RA are completed.
References
OSRE Memorandum, "Transmittal of Sample Notice Letters: 1) Demand;
2) General Notice; 3) Special Notice; and 4) Follow-Up 104(e)" (July 26,
1996).
OSWER Directive 9832.18, "Written Demand for Recovery of Costs
Incurred Under Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA)" (March 28, 1991).
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12-13
12.2.C.3
Types of
Costs and
Pre-Judgment
Interest
12.2.D Documentation
Requirements
In accordance with CERCLA section 107, the demand letter should seek to
recover interest from the date of the written demand for past costs or from
the date that future costs are actually incurred. The demand letter should
include a request for all costs, including:
• Costs incurred under EPA contracts with private contractors, includ-
ing annual allocation costs.
• EPA direct costs, including costs such as EPA staff salaries, travel, and
other miscellaneous, site-specific expenditures.
• Costs incurred under Interagency Agreements (LAGs), including the
U.S. Army Corps of Engineers (USAGE), DOJ, the Agency for Toxic
Substances and Disease Registry (ATSDR), and the U.S. Coast
Guard (USCG).
• Costs incurred under Cooperative Agreements (CAs), including state
agreements.
• Technical Assistance Grants (TAGs).
• Indirect costs incurred by EPA for the response actions.
• Pre-judgment interest.
• Future costs.
Reference
Comptroller Policy Announcement 87-17, "Interest Rates for Debts
Recoverable Under the Superfund Amendments and Reauthorization Act of
1986" (September 1987).
The region's site files will contain several types of documents that can be
used to support a cost recovery action, including: 1) enforcement
information, such as data on PRP liability; 2) the AR, relating to the
selection of the response action; and 3) response activity and cost
documentation.
This section discusses documents relating to the third category. The region's
Cost Recovery Coordinator (CRC) or other cost recovery contacts prepare
the referral and have primary responsibility for collecting and organizing
cost recovery documentation.
References
OSRE Memorandum, "Guidance on Administrative Response Cost
Settlements under Section 122(h) of CERCLA and Administrative Cashout
Settlements with Peripheral Parties under Section 122(h) of CERCLA and
Attorney General Audiority" (September 30, 1998).
Office of Waste Programs Enforcement (OWPE)/Financial Management
Division (FMD), "Delegation of Letter Report Responsibilities and New
Guidance" (June 5, 1991).
FMD, "Historic Site-Specific Cost Reports in Superfund Contracts Active
Prior to October 1, 1985" (June 26, 1989).
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12—14 Cost Recovery
12.2.D.1 Types of
Expenditures
12.2.D.2 EPA
Indirect Costs
12.2.D.3
Evidence
Office of Administration and Resource Management (OARM), "Superfund
Financial Management and Recordkeeping Guidance for Federal Agencies"
(January 1989).
FMD, "State Superfund Financial Management and Recordkeeping
Guidance" (August 1987).
OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs in
CERCLA Section 107 Actions" (January 1985).
OSWER Directive 9832.1, "Cost Recovery Actions Under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA)" (August 1983).
The government's costs of the response action can be broadly divided
between direct and indirect expenditures. Direct expenditures are those tliat
are attributable solely to the site in question. These include contractor, EPA,
and other federal and state agency staff time, travel, and equipment directly
associated widi the site. Indirect costs are costs that support more than one
response action (e.g., office space, electricity, and supplies for contract and
EPA personnel who work on die response actions). Total cost is the sum of
"direct" and "indirect" costs. Both types of costs are recoverable under
CERCLA.
Indirect costs, briefly described above, do not relate specifically to individual
sites. For this reason, these costs are "allocated" to sites using accounting
formulas. The process is similar to indirect cost accounting in private-sector
firms, and results in a site-specific allocation of indirect costs, which are
then incorporated in the cost package.
References
OSWER Directive 9832.5, "Policy on Recovering Indirect Costs in
CERCLA Section 107 Cost Recovery Actions" (June 27, 1986).
Office of the Comptroller (OC), Superfund Indirect Cost Manual for Cost
Recovery Purposes (March 1986).
The costs of response activities recoverable under section 107 of CERCLA
are reflected in a variety of financial records and documents. There are two
general types of information tliat will be available to prove die Agency's
costs. Work performed documents prove that the response activities were
actually undertaken (i.e., authorized and completed). Cost evidence
documents prove diat costs were actually incurred and paid for by the
government.
RPMs/OSCs often will provide from their files:
• Authorization for die scope and performance of work by die agency
or the contractor at die site, including documents such as action
memoranda, work plans, work assignments, Technical Directive
Documents (TDDs), SOWs, and delivery orders.
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12-15
• Evidence of contractor performance of work at the site and docu-
mentation of completion of that work, including documents such as
Form 1955 for removals, monthly technical and financial status
reports for Remedial Engineering Management (REM) contracts,
and TDD or work assignment completion forms.
The Case Team should also ensure that financial management offices have
provided the following types of documents:
• Timesheets/timecards and payroll expenses.
• Travel vouchers and receipts.
• Treasury schedules.
• Contracts/Letters of agreement.
• Purchase orders and receipts.
• Paid processed invoices and vouchers.
Properly documented costs are generally admissible as evidence. Good
documentation lays the foundation for successful settlement negotiations
and litigation. Therefore, RPMs/OSCs should work closely with regional
counsel to produce admissible evidence documenting the Agency's costs.
Cost documentation submitted by contractors frequently includes
Confidential Business Information (CBI). In order to recover cleanup costs
more efficiently and expeditiously, EPA may release Superfund response
contractor CBI, with the contractor's consent, to PRPs in pre-litigation
negotiations and during litigation. Such releases are made pursuant to a
contractual agreement in pre-litigation negotiations or under a stipulation
and protective order during litigation to ensure that distribution and use of
the information is limited. The Agency also may release response contractor
CBI, with the contractor's consent, to other EPA contractors or authorized
representatives of the United States.
Reference
"Disclosure of Confidential Data to Authorized Representatives of the
United States and Potentially Responsible Parties," Interim Rule, 58
Fed.Reg. 458-465 (January 5, 1993).
12.2.D.4 Cost To prevent the courts from being burdened with unwieldy documentation,
Summaries Rule 1006 of the Federal Rules of Evidence allows voluminous
documentation to be condensed into summaries. These summaries must
accurately characterize the underlying documents. In order to introduce a
summary in court under Rule 1006, EPA must provide all of the underlying
documents to the other parties at a reasonable time and also may be
required to produce the documents in court. CBI and Privacy Act
information must be redacted (edited to delete confidential information).
The RPM and OSC play an important role in the process of cost recovery
by ensuring that documentation of the activities is provided, and that the
cost summaries are complete and accurate. It is essential that the cost
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12—16 Cost Recovery
summary provide a complete, accurate, and easily understandable summary
of the work performed for each cost claimed. In addition, when multiple
activities (such as an RI/FS, a removal, and an RA) have been carried out by
the same contractor or state or federal agency, the RPM/OSC is the best
EPA employee to ensure that the summaries accurately reflect these
activities. The summaries also must include the actual dates of services
provided by the contractor. The RPM/OSC should ensure that the dates
are accurate because they are used to calculate SOLs and determine
authorization issues under contracts. The RPM/OSC should always check
the cost package to ensure that all costs have been included. Much of the
information in the cost package comes from the IFMS, and there are a
number of costs diat are not reflected in that system. The RPM/OSC
should be careful to see that costs of other agencies such as state agencies,
ATSDR, DOJ, USCG, Federal Emergency Management Agency (FEMA),
and Health and Human Services are included. In addition, the summary
must be checked to see that all costs that PRPs have satisfied or paid are
reflected in the cost summary, including settlements with other parties, and
costs disallowed after audit resolution or paid by the state or a private party.
The RPM also will need to ensure that calculations of the 10 percent state
cost share for reimbursable expenses is included and accurately reflected in
the summary.
In cost recovery actions, the summaries must include a description of the
response activities, expenditure types, and actual costs, and must indicate
which Agency performed the activity. Cost summaries, which are primarily
the responsibility of the regional financial office, should be arranged
according to die following format:
• Agency site-specific payroll costs.
• Agency site-specific travel expenditures.
• IAG expenditures.
• Cooperative Agreement (CA) expenditures.
• Site-specific contracts widi contractors.
• Non-site-specific contracts with contractors.
• TAG expenditures.
• Other federal costs.
The above information should be summarized in a brief.
Because cost summaries are developed early in the case development
process, they will need to be updated regularly as the various response action
phases are initiated and completed. RPMs/OSCs should obtain updated
cost summaries at critical stages of the response and litigation processes, and
periodically (e.g., annually) during periods of substantial expenditure.
Regular updating ensures diat the most recent cost data are available for
management review.
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12-17
12.2.E Documentation
Procedures
Cost summaries should be reviewed for completeness, to ensure that:
• They do not demand payment for amounts which have been previ-
ously recovered (e.g., bankruptcy proceeds, settlements).
• They do include costs incurred by agencies with transfer allocations,
whose costs are not included in the IFMS (DOJ, FEMA, ATSDR,
USAGE).
• State matching funds are reflected in the summary so that it is
apparent what costs must be matched and so there is no demand in
excess of the 90 percent of such costs that the United States is
entitled to claim.
Exhibit 12-2 outlines the type of material that should be included in cost
summary reports.
This section describes the procedures that are followed in assembling work
performed and cost documentation for a cost recovery case. This process
became a regional responsibility in January 1990, and requires joint activity
by the regional CRC and Financial Management Officer (FMO). Cost
recovery and financial management staff provide support and training in use
of the Superfund Cost Organization and Recovery Enhancement System
(SCORES) and training in overall cost recovery procedures. Headquarters
FMD also provides site-specific payroll and travel documentation.
The description provided here is a general outline of required inclusions in
the cost documentation package and the procedures for assembling the
package.
The regions assemble information for the following areas of costs:
• Agency site-specific regional payroll costs.
• Agency site-specific regional travel expenses.
• Other site-specific regional charges.
• Site-specific CAs.
• Non-site-specific CAs.
• Site-specific indirect costs.
• Site-specific Field Investigation Team costs.
• Site-specific Technical Assistance Team costs.
• Site-specific Superfund Technical Assessment and Response Team
costs.
• Site-specific Response Action Contract costs.
• Site-specific Technical Enforcement Support costs.
• Site-specific Enforcement Support Services costs.
• Site-specific Emergency Response Cleanup Services costs.
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12—18 Cost Recovery
12-2 Cost Summary Format
Payroll
Summary
by
Employee
Employee name
Dates worked on case
Hours worked (by pay period)
Salary amount (by pay period)
Total payroll costs
Payroll
Summary by
Agency
Employee names
Hours worked on case
Salary amount
Travel Summary
by Employee
Employee name
Travel authorization number
Voucher amount
Treasury schedule number
and date
Agency Travel
Summary
Employee name
Travel authorization number
Voucher amount
Treasury schedule number
and date
Interagency
Agreements
Agency name
Interagency number
Description of tasks performed
Documentation of costs
Voucher numbers and amounts
Account information
Dates of agency service
Interagency agreement
voucher amount
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12-2 (cont.) Cost Summary Format
12-19
Cooperative
Agreements
State name
Cooperative Agreement
grant number
Summary of work
Documentation of costs
Account information
Voucher information
Treasury schedule
information
Private Site-Specific
Contracts
Contractor name
Contractor number
Project Officer or
Contracting Officer
Dates of work
Description of tasks performed
Total costs
Cost Documentation
Voucher numbers and amounts
Treasury schedules
numbers and dates
Site-Specific/
Non-Site-Specific
Contracts
Contractor name
Contractor number
Project Officer or
Contracting Officer
Dates of work
Description of tasks performed
Total costs
Cost Documentation
Voucher numbers and amounts
Treasury schedules
numbers and dates
Narrative Summary
Statement of Facts
Delineation of costs in a
narrative summary- Format
should be brief, numbered
sentences stating the
amount of costs incurred
by Agency for expenditures
and contracts.
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12—20 Cost Recovery
12.2.F
Judicial
Cost
Recovery
• Site-specific Emergency and Rapid Response Services costs.
• Site-specific Contract Laboratory Program costs.
• Site-specific REM costs.
• Site-specific Environmental Services Assistance Team costs.
• Site-specific Alternative Remedial Contracting Strategy costs.
• Site-specific Emergency Response Unit costs.
• Site-specific National Enforcement Investigation Center costs.
• TAG costs.
• IAG costs.
• Site-specific Headquarters payroll costs.
• Site-specific Headquarters travel expenditures.
• Miscellaneous costs related to the Agency's response activity.
• Costs of overflights and aerial photography by the Environmental
Photographic Interpretation Center and analyses of the photographs
provided by the Environmental Monitoring Systems Laboratory.
After these costs are collected and categorized, they must be reconciled using
information in SCORES. This system is usually maintained and operated
by the FMO in the region. The SCORES system downloads information
on all site-specific accounts from the IFMS and produces cost summaries
that can be included in the cost package for the case. Once prepared, the
original cost package should be stored in the region. Another copy should
be sent to the regional counsel, who will use it in the referral package.
If there are any DOJ costs associated with the case, they should be included
in the cost recovery action. DOJ is responsible for documenting their own
costs and adding them to the amount in the referral from EPA. Although
DOJ has responsibility for documenting its costs, the CRC, FMO, or RPM
may be required to testify in the cost recovery case. Hence, all parties
should be familiar with the process by which documents are prepared.
Reference
Office of Compliance (OC)/OSRE, Superfund Cost Recovery Procedures
Manual (September 1994).
When EPA and the PRPs do not reach a negotiated settlement for
reimbursement of EPA's response costs, EPA usually sues the PRPs to
recover those costs. This action, taken under section 107 of CERCLA, is
known as a judicial cost recovery action. A judicial cost recovery action
requires the involvement of the RPM/OSC, regional counsel, and DOJ
attorneys. The action is initiated when EPA prepares a referral package for
DOJ. The referral package presents the evidence in the case and explains
what EPA is seeking to recover.
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12-21
12.2.F.I Referral To assist DOJ in preparing for cost recovery litigation, OSCs/RPMs should
Package work with regional counsel to prepare a section 107 referral package. At a
minimum, the package should include die following information:
• Description of the response actions and their status.
• AR Index and Action Memorandum/ROD.
• PRP liability analysis.
• Anticipated defenses.
• Activity and cost documentation.
• Natural resource damages claims (summarizes communications widi
trustee).
• Enforcement history.
• Relief sought.
• Litigation/Settlement strategy.
Generally, die following remain in regional files:
• AR.
• PRP search backup documents (e.g., section 104(e) responses).
• Cost summary documentation.
• Work performed documentation.
The cost documentation package must be complete before die case is
referred to DOJ, except where diere are SOL concerns. All documents in
die package should be indexed. Proper indexing enables die case
management team to access pertinent evidence from voluminous cost
recovery case files. If the region does not include copies of supporting
documents in die referral package, die documents must be identified in a
specific inventory indicating die identity, location, and custodian of die
documents. A general assertion diat documentation is "available" will not
suffice.
12.2.F.2 Litigation RPMs and OSCs, widi assistance from regional counsel and die CI, perform
Support important duties in supporting cost recovery litigation. They:
• Ensure diat the PRP search provides sound evidence of liability and,
for generators, waste-in information.
• Ensure diat die AR regarding die selection of remedy is compiled.
• Ensure diat all activities and costs are documented.
• Provide die technical lead for die case and act as witnesses to die
technical performance of die work at die site for which costs were
incurred.
• Assist in case preparation and at trial in establishing discrete activities
and associated costs that were related to each phase of die work at die
site (e.g., RI/FS, various removals, work on separate OUs).
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12—22 Cost Recovery
12.2.F.3
Litigation
Management
Plan
• Identify potential fact witnesses who have personal knowledge of
potentially relevant information, such as the PRP s liability, by
providing the following information: present place of employment;
home and business phone numbers; substance of testimony (brief
statement); and whether the witness's statement is on file.
• Identify potential expert witnesses (e.g., hydrogeologists and soil
scientists) to participate in negotiations, if necessary.
• Identify potential adverse witnesses (either fact or expert) and
indicate the substance of expected testimony, if known.
In addition, RPMs and OSCs may be asked to assist regional counsel in
preparing affidavits to substantiate die Agency's response costs, or in
preparing pre-trial motions, such as motions for summary judgment and
motions to dismiss.
A litigation management plan should be developed by team members. This
plan should be prepared in close coordination with DOJ. A list of the
contents is shown in Exhibit 12-3.
12-3 Suggested Contents of a Site Litigation
Management Plan
1. Litigation Schedule and Staffing Requirements
A. Provide a schedule for completing litigation activities
(including activities, staff, and contractor support).
B. Summarize the specific team responsibilities for managing
and performing litigation, along with dates for starts and
completions.
C. Assess enforcement progress to date in the litigation plan.
2. Objectives of Litigation
A. Discuss litigation objectives set by the site team and the
reasons for their selection.
B. Identify the potential alternatives (e.g., return to
negotiations posture or different legal options to achieve
litigation objectives).
3. Litigation Strategy
A. Identify the initial and bottom-line litigation points in the
plan and reasons for the positions.
As a practical matter, most cases do not go to trial and most cost recovery
cases will be settled out of court. The primary function of both the RPM
and OSC in litigation support is to work closely widi regional counsel and
DOJ attorneys.
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12-23
12.2.G DeMinimis
Settlements
12.2.G.1
Necessary
Information
References
Office of Enforcement Counsel (OEC) Memorandum, "Cost Recovery
Referrals" (September 6, 1996).
OSWER Directive 9832.0, "Partial List of Documents Needed to Support
Cost Recovery" (September 6, 1996).
OWPE Memorandum, "Issuance of Interim Rule: 'Disclosure of
Confidential Data to Authorized Representatives of the United States and
Potentially Responsible Parties,' 58 Fed. Reg. 458-465, January 5, 1993 (40
CFR Pan 2)" (January 8, 1993).
OSWER Directive 9835.11-1, "Model Litigation Report for CERCLA
Sections 106 and 107 and RCRA Section 7003" (June 21, 1989).
OSWER Directive 9891.1 -1 a, "Procedures for Transmittal of CERCLA and
RCRA Civil Judicial Enforcement Case Packages to Headquarters" (June 12,
1989).
OSWER Directive 9832.6, "Small Cost Recovery Referrals" (July 12, 1985).
OSWER Directive 9832.0, "Cost Recovery Referrals" (August 3, 1983).
In addition to settlements during RD/RA negotiations, de minimis
settlements are tools that may be used for eliminating the smaller
contributors from the cost recovery process. Section 122(g) of CERCLA
provides for settlement "...whenever practicable and in the public interest...if
such a settlement...involves only a minor portion of the response costs."
There are two situations in which the Agency may agree to a de minimis
settlement:
• The amount and toxicity of the hazardous substances contributed by
the PRP are minimal compared to other hazardous substances at die
facility.
• The PRP is an owner who did not contribute to die release or threat
of release through any action or omission, did not conduct or permit
the management of hazardous substances on the property, or pur-
chase the property with knowledge of its use for generation, transpor-
tation, treatment, storage, or disposal.
The PRP search process is critical to determining whether a PRP is a de
minimis contributor. The search will provide the RPM with information
regarding the identity, waste contributions, and financial viability of the
PRPs. Regional management will determine whether a PRP is a de minimis
contributor through an analysis that includes each PRPs waste contribution,
whether the setdement is "practicable and in the public interest," and
whether all past costs are known. If the Agency expects to incur future
costs, this will affect the scope of the settlement and covenant not to sue.
It is no longer necessary to prepare a waste-in list or volumetric ranking
before considering a party's eligibility for de minimis setdement; the region
need only assess the individual PRP s waste contribution relative to the total
volume of waste at the site.
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12—24 Cost Recovery
12.2.G.2
Release
from Liability
and Reopeners
De minimis settlements may be entered as either:
• AOCs.
• Judicial CDs.
The regions may issue AOCs when total response costs of the United States
at the site are $500,000 or less. Under section 122(g)(4) of CERCLA and
the EPA delegations, however, when total costs exceed $500,000 (excluding
interest) and the settlement is embodied in an AOC, the RA must obtain
the prior written approval of the Assistant Attorney General for the
Environment and Natural Resources Division of DOJ, and consult with
OSWER and OSRE.
All de minimis settlements must comply with the public comment
procedures stipulated in section 122(i) of CERCLA.
"De micro mis" settlements are a subset of de minimis settlements available
to parties who contributed minuscule amounts of waste to a site; owners
and operators are not eligible. The presumptive cutoff points for "de
micromis" settlement are 0.002 percent of hazardous waste or 0.2 percent of
Municipal Solid Waste at a site. If the region determines that absolute
volumes are appropriate to use at a particular site, the presumptive cutoff
points are 110 gallons or 200 pounds.
The Agency enters into "de micromis" settlements only where "de
micromis" parties have been sued by other PRPs, face a concrete threat of
suit, or convince the Agency that there is a reasonable expectation that they
will face contribution litigation. "De micromis" settlements may be entered
into in exchange for certain benefits other than the payment of money;
accordingly, the Agency generally will not seek to recover any past costs
from "de micromis" parties.
The Agency may grant de minimis settlors a covenant not to sue. EPA's
covenant not to sue is given in exchange for the PRP's agreement to pay for
part of the response costs plus a premium. This agreement means that EPA
will not pursue the PRPs for future liability for costs incurred by the
Agency. Such agreements normally involve liability under section 106/107
of CERCLA. The scope of the covenant will vary depending on site-specific
factors. The Agency usually agrees to such a release only if the terms of the
covenant include reopeners. Reopeners protect the Agency against cost
overruns and the risk of paying for any further response action at the site.
In appropriate cases, a settlement may not contain a remedy cost reopener;
typically, the premiums in these settlements are higher than in settlements
that contain remedy cost reopeners.
References
OSRE Memorandum, "Guidance on Administrative Response Cost
Settlements under Section 122(h) of CERCLA and Administrative Cashout
Settlements with Peripheral Parties under Section 122(h) of CERCLA and
Attorney General Authority" (September 30, 1998).
OSRE Fact Sheet, "Revised De Micromis Guidance" (June 4, 1996).
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12-25
12.2.H Administrative
Settlements
OSRE/Department of Justice (DOJ) Memorandum, "Revised Guidance on
CERCLA Settlements widi De Micromis Waste Contributors" (June 3,
1996).
OSRE Memorandum, "Issuance of Revised Model De Minimis Contributor
Consent Decree and Administrative Order on Consent" (September 29,
1995).
OSRE Memorandum, "Standardizing the De Minimis Premium" (July 7,
1995).
OWPE/Office of Enforcement (OE) Memorandum, "Communications
Strategy for Settlements with Small Volume Waste Contributors"
(September 30, 1993).
OSWER Directive 9834.7-Id, "Streamlined Approach for Settlements with
De Minimis Waste Contributors under CERCLA Section 122(g)(l)(A)"
(July 30, 1993).
OSWER Directive 9834.7-Ic, "Methodology for Early De Minimis Waste
Contributor Settlements Under CERCLA 122(g)(l)(A)" Qune 2, 1992).
OSWER Directive 9834.7-lb, "Methodologies for Implementation of
CERCLA Section 122(g)(l)(A) De Minimis Waste Contributor
Settlements" (December 20, 1989).
OSWER Directive 9835.9, "Guidance on Landowner Liability under
Section 107(a)(l) of CERCLA, De Miminis Settlements under Section
122(g)(l) and Settlements with Prospective Purchasers of Contaminated
Property" (June 6, 1989).
OSWER Directive 9834.7, "Interim Guidance on Settlements with De
Minimis Waste Contributors under Section 122(g) of SARA" (June 1987).
Section 122(h)(l) of CERCLA expressly authorizes the Agency to setde its
cost recovery claims under section 107 if the case has not been referred to
DOJ. However, when die total response costs of the United States at a
facility exceed $500,000 (excluding interest), the RA must obtain the
written approval of DOJ and consult widi OSWER and OSRE.
References
OSRE Memorandum, "Guidance on Administrative Response Cost
Settlements under Section 122(h) of CERCLA and Administrative Cashout
Settlements with Peripheral Panics under Section 122(h) of CERCLA and
Attorney General Authority" (September 30, 1998).
OSRE Memorandum, "Issue of'Model CERCLA Section 107 Consent
Decree for Recovery of Past Response Costs' and 'Model CERCLA Section
122(h)(l) Agreement for Recovery of Past Response Costs'" (September 29,
1995).
OSWER Directive 9012.10-A, "Revision of CERCLA Civil Judicial
Settlement Authorities Under Delegations 14-13-B and 14-14-E" (June 17,
1988).
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12—26 Cost Recovery
12.2.1 Enforcing
Settlements
12.2.J Arbitration
OSWER Directive 9835.0, "Interim CERCLA Settlement Policy"
(December 5, 1984).
If a settling PRP fails to comply with the terms of a settlement, the matter
should be referred to DOJ for civil action. Case referrals should occur
within six months of the default date. CERCLA section 122(h)(3)
authorizes DOJ to bring a civil action to enforce the terms of the
agreement. These terms are not subject to judicial review. DOJ may
petition the court to impose the civil penalties authorized by CERCLA
section 109.
Arbitration is a form of ADR that provides a forum for resolution of cost
recovery claims without traditional litigation. The Administrative Dispute
Resolution Act (5 U.S.C. 573 et seq.) (ADR Act) and section 122(h) of
CERCLA specifically authorize the use of arbitration to resolve cost recovery
claims.
Arbitration offers the Agency an expeditious method of resolving cost
recovery claims without the expenditure of enforcement resources required
for traditional litigation and lengthy enforcement negotiations.
Exhibit 12-4 shows a flowchart of the procedures.
In the cost recovery context, arbitration is a hearing conducted by a neutral
third party, usually with substantive expertise, who hears facts and
arguments presented by each party and renders an opinion. The scope of
the neutral party's decision and hearing procedures is at the sole discretion
of the parties to the arbitration. Arbitrations are more streamlined than
court litigation in terms of procedure and evidentiary requirements.
Entry into arbitration for resolution of a cost recovery claim is voluntary
and requires the consent of all involved parties. Regulations promulgated
pursuant to section 122(h), 40 CFR Part 304, 54 Federal Register 23174
(May 30, 1989), set procedures for arbitration in cases where costs at a
facility do not exceed $500,000 (excluding interest). In section 122(h)
arbitrations, the decision of the neutral party, which is filed in the Federal
Register for public comment, is binding on the parties except in cases of
arbitrator misconduct.
In other cases, hearing procedures and the binding nature of the neutral
party's decision is at the discretion of the parties. The ADR Act establishes
the permissible scope of arbitration decisions in cases involving federal
claims and actions.
Agency expenditures in support of the use of arbitration and other forms of
ADR (i.e., mediation, convening, allocation, and fact-finding) are
recoverable costs, reimbursement of which may be obtained through
settlement or legal action.
References
OSRE Memorandum, "Use of Alternative Dispute Resolution in
Enforcement Actions" (May 1995)
-------
Referral Phase
Hearing Phase 30 days
Decision Phase 45 days
EPA and PRPs
Regional Administrator and one or more PRPs
voluntarily submit a request for arbitration of
one or more issues to the American Association
of Arbitrators (AAAI.
1
10 days
Arbitrator
The AAA simultaneously submits the names of
10 persons from the Panel of Environmental
Arbitrators to all parties for their consideration.
>
10days
t
EPA and PRPs
Parties concur on an arbitrator. If the parties
cannot concur, the AAA will appoint an arbitrator
within 30 days of the date the joint request for
arbitration is filed.
1
7 days
AAA
AAA notifies parties of Arbitrator's identity and
date of appointment.
>
5 days
r
Arbitrator
Appointed Arbitrator files signed acceptance
of case and a statement disclosing any
circumstances that could bias hearing of the
case.
EPA
EPA submits its written statement for cost
recovery and supporting documents to the
Arbitrator and PRPs.
>
30 days
PRPs
PRPs submit their answers to EPA's statement
and their documentary evidence.
1
10 days
EPA
EPA may file response to PRPs answer with the
Arbitrator and all parties.
>
r 10 days
PRP
PRPs may file reply with Arbitrator and all
parties.
>
within 120 days of
appointment of Arbitrator
r
EPA and PRPs
PRE-HEARING CONFERENCE: All parties
exchange witness lists, remaining exhibits, and
documentation. Parties prepare a statement of
disputed issues and a stipulation of undisputed
facts.
>
45 days
Arbitrator must notify parties
- at least 20 days in advance
EPA and PRPs
ARBITRATION HEARING: Must be completed
within 14 days, unless extended for good cause.
Arbitrator
ARBITRATION DECISION: statement resolving
the issues presented. The decision is binding.
Publish in Federal Register
PUBLIC COMMENT PERIOD:
Public must have opportunity to comment for
at least 30 days.
10 days
PRP
PRP COMMENT PERIOD: PRPs may respond to
public comments.
30 days
EPA
Responsiveness Summary: EPA must issue
responses to public comments and summarize
c S
03 0)
2. -•
v>
(D O
an
_.
-------
12—28 Cost Recovery
12.2.K
Mixed
Funding
12.2.L
Orphan
Shares
"Arbitration Procedures for Small Superfund Cost Recovery Claims," 54
Fed. Reg. 23174 (May 30, 1989).
Office of the Administrator, "Guidance on the Use of Alternative Dispute
Resolution in EPA Enforcement Cases" (August 1987).
Section 122(b) of CERCLA authorizes the Agency to enter into mixed
funding agreements. Under the terms of a mixed funding agreement, the
Agency shares die response costs with settling PRPs. RPMs should note
diat when the Agency enters into a mixed funding agreement involving
eidier a preaudiorizauon or a cashout widi certain PRPs at a site, EPA must
make a reasonable effort to recover die amount of such reimbursement from
non-settling PRPs under a separate cost recovery action. A more complete
discussion of mixed funding can be found in Chapter 8, RD/RA
Negotiations/Settlement.
The "orphan share" refers to die share attributable to identifiable insolvent
or defunct parties at a site. Under principles of joint and several liability,
diis share is allocable to viable PRPs. However, in the interests of fairness
and encouraging setdement, die Agency will consider compensating setding
parties for the orphan share dirough forgiveness of past costs and projected
oversight costs, subject to die amount of funding available for the
Superfund program. While orphan share compensation is available for
work settlements, the Agency, in its discretion, may also offer compensation
to parties in cost recovery setdement negotiations.
Orphan share compensation may not exceed die lesser of: 1) the orphan
share; 2) 25 percent of ROD-projected remedy or NTC removal costs; or 3)
die sum of all unreimbursed past costs and projected costs of overseeing
design and implementation of die ROD-selected remedy or NTC removal
action. When projected remedial or NTC removal action costs exceed $30
million, any setdement including orphan share compensation requires pre-
approval from Headquarters. The Agency may decide to compensate less
dian the maximum allowable amount based on consideration of equitable
factors, including the size of die orphan share and die settling PRPs'
cooperation widi die Agency and fairness to other PRPs.
According to EPA's addendum to die interim CERCLA setdement policy,
except in extraordinary cases, a party who enters into a consent agreement
solely to setde liability for past costs should not receive any greater
compromise based on orphan share considerations dian a party who enters
into a consent agreement to perform cleanup work.
References
OECA Memorandum, "Addendum to die 'Interim Settlement Policy'
Issued on December 5, 1984" (September 30, 1997).
OSRE Fact Sheet, "Orphan Share Reform" (June 4, 1996).
OECA Memorandum, "Interim Guidance on Orphan Share Compensation
for Settlors of Remedial Design/Remedial Action and Non-Time-Critical
Removals" (June 3, 1996).
-------
12-29
12.2.M Bankruptcy
Actions
12.2.M.1
Statutory
Background
12.2.M.2
Proof of
Claim
Some PRPs may file for bankruptcy before reimbursing the government
for its response costs. Although' the regional attorney will handle most
issues related to the PRP's bankruptcy petition, the RPM should have a
working understanding of the process. The following discussion should
help RPMs become familiar with pertinent concepts of bankruptcy law.
A PRP may file a petition for bankruptcy under either Chapter 7
(liquidation) or Chapters 11 and 13 (reorganization) of the Bankruptcy
Code. Bankruptcy proceedings under Chapter 7 involve the collection and
distribution of all the debtor's non-exempt property.
By contrast, Chapters 11 and 13 allow the debtor to reorganize and
rehabilitate radier than liquidate. Under Chapters 11 and 13, the creditors
look to the future earnings of the debtor to satisfy claims.
There are two bankruptcy issues that the RPM should understand: proof of
claim and priorities in bankruptcy.
Under the Bankruptcy Code, a debtor is discharged from his/her debts.
This statutory provision releases a debtor from debts incurred before the
debtor filed his/her petition for bankruptcy (previous debts). To contest the
discharge of their claim against the debtor, creditors must establish proof
that they had a valid claim against die debtor's estate. Creditors establish
this claim by filing a proof of claim in the bankruptcy court. The deadlines
for filing a proof of claim are as follows:
• Under Chapter 7 of die Bankruptcy Code: 90 days from die first
meeting of creditors.
• Under Chapters 11 and 13 of the Bankruptcy Code: the bar notice
fixes the deadline, except that governmental units have at least 180
days to file a proof of claim.
The Agency has established a systematic procedure for receiving and
distributing bankruptcy information. This procedure ensures that the
Agency files its proof of claim widiin die applicable statutory deadlines.
EPA has designated die Office of Enforcement and Compliance Assurance's
(OECA's) Regional Support Division (RSD) as a central contact in
Headquarters to receive all preliminary bankruptcy information. Each
regional counsel's office, as well as RSD, has designated bankruptcy
contacts. RSD, in cooperation widi die regional bankruptcy contacts, will
determine whedier a particular multi-region bankruptcy matter should be
handled as OECA-lead or region-lead.
The Bankruptcy Code requires a debtor to provide notice to all creditors,
including EPA. Regional counsel takes die lead role in reviewing die
debtors notice and determining whedier a proof of claim should be referred
to DOJ for filing.
The following factors should be considered in evaluating whedier to file a
proof of claim in a bankruptcy case:
• Amount and priority of EPA's claim.
-------
12—30 Cost Recovery
12.2.M.3 Environmental
Claims as
Priorities
12.2.N
Ability
to Pay
• Assets and liabilities of the bankruptcy estate.
• Impact on Agency resources.
• Fairness to other liable parties.
In addition, the decision to file may be influenced by time constraints and
lack of information.
If the PRP has actually filed a petition for bankruptcy, DOJ and regional
counsel will have the responsibility of obtaining die necessary bankruptcy
documents to establish the Agency's proof of claim. In most cases, the RPM
will have a limited role in die bankruptcy proceedings.
Typically, a bankrupt party's estate does not have sufficient assets to satisfy
all of the creditors' claims. However, if the Agency's claim is treated as a
priority, the claim must be fully satisfied before the other creditors receive
any money.
EPA's cost recovery actions can be treated as a priority if the Agency can
establish that the costs were administrative costs, or that a federal lien has
been filed against the PRP's property. For example, administrative costs are
incurred when EPA responds to a release on the debtor's property after the
bankruptcy petition has been filed. A lien for cleanup costs is created under
section 107(1) of CERCLA, but it must be created before the debtor files for
bankruptcy. The Bankruptcy Code prohibits any act to create, perfect, or
enforce a lien against property of the bankruptcy estate once the debtor
files. The lien continues to be enforced against the property until either the
liability is fully satisfied or the claim becomes unenforceable by operation of
the SOL.
Reference
OECA Memorandum, "Guidance on EPA Participation in Bankruptcy
Cases" (September 30, 1997).
National Bankruptcy Lead Region Work Group, "A Bankruptcy Primer for
the Regional Attorney" (February 1994).
OWPE/OE Memorandum, "Supplemental Guidance on Federal Superfund
Liens" (July 29, 1993).
OSWER Directive 9832.12, "Guidance on Federal Superfund Liens"
(September 22, 1987).
Where appropriate, EPA may enter into settlements that reflect businesses'
or individuals' limited ability to pay for cleanup work or recovery of
response costs. ATP settlement is reserved for business PRPs who
demonstrate that the amount sought by the government is likely to put
them out of business or otherwise jeopardize their viability, and for both
business and individual PRPs who demonstrate that payment of such an
amount is likely to create an undue financial hardship. An undue financial
hardship occurs when payment of the amount sought by the government is
likely to render the PRP unable to pay for ordinary and necessary business
expenses and/or ordinary and necessary living expenses.
-------
12-31
The Agency evaluates requests for ATP settlement in two phases, a balance
sheet phase and an income and cash-flow statement phase. In the balance
sheet phase, the Case Team, consisting of EPA enforcement personnel and,
where appropriate, DOJ staff, determines whether the ATP candidate can
afford to make a single, up-front payment sufficient to pay die total amount
sought by die Agency. If not, die Case Team analyzes die PRP's income and
cash-flow statements to determine whedier die PRP can make additional
payments over time. These analyses establish income available for die
settlement and enable die Agency to estimate an ATP setdement amount.
EPA employs a variety of computer models to assist widi ATP analysis, and
plans to release additional computer models and develop manual financial
screening protocols in die future.
Aldiough an ATP setdement is based largely on die financial condition of
die ATP candidate, odier conditions should also be satisfied, including die
folio-wing:
• The settling party has met its burden of demonstrating that die
payment of die full amount sought by EPA is likely to create an
undue financial hardship.
• The setdement should not release die ATP candidate from odier site-
related responsibilities.
• The ATP candidate must request die ATP setdement.
• An ATP analysis must consider die entire financial position of die
ATP candidate.
• An ATP setdement is entered on an individual basis with each person
as defined in CERCLA.
• The ATP setdement is in addition to expenditures diat are recover-
able from odier sources.
• The ATP setdement should seek to resolve all of the ATP candidates
liability for response costs at die site.
References
OSRE Memorandum, "Guidance on Administrative Response Cost
Settlements under Section 122(h) of CERCLA and Administrative Cashout
Setdements widi Peripheral Parties under Section 122(h) of CERCLA and
Attorney General Audiority" (September 30, 1998).
OSRE Memorandum, "General Policy on Superfund Ability to Pay
Determinations" (September 30, 1997).
OSRE Fact Sheet, "Existing Ability to Pay Guidance and Models" (May
1995).
-------
12—32 Cost Recovery
12.3
12.3.A Planning
12.3.B Budgeting
12.3.C Reporting
Requirements
Planning and Reporting Requirements
Cost recovery planning should be consistent with the priorities identified in
the cost recovery strategy and should first address sites with pending
expiration of the SOL. In selecting sites for cost recovery action, RPMs
should consult the Cost Recovery Targeting Report. This report identifies
sites which are eligible for cost recovery action (e.g., remedial starts, com-
pleted removals over $200K) and sorts the sites by an approximate SOL
date. It also shows any planned, on-going or completed cost recovery action
at die site.
When sites have been selected, the sites should be targeted and tracked
through die Superfund Comprehensive Accomplishments Plan (SCAP)
process. Information on the expenditures at die site can be taken from die
cost documentation system maintained by die FMO in your region. The
system maintained by the FMO (and described in the section on Cost
Documentation) will provide detailed documentation of both direct and
indirect costs.
Funding for cost recovery activity is part of die Enforcement Case Budget.
Data on die Case Budget can be found in CERCLIS 3/WasteLAN.
Cost planning, reporting and tracking relies on CERCLIS 3/WasteLAN, the
national database. The database incorporates information on response and
enforcement actions at sites and is die source for the SOL as well as SCAP
reports.' Current and accurate data are essential for die cost recovery process
to be successful.
All enforcement activities associated with cost recovery (e.g., demand letters,
107 referrals, settlements) and die amounts sought, achieved or written off
in die cost recovery process must be reported in CERCLIS 3/WasteLAN.
RPMs/OSCs must work closely widi IMCs, CRCs, and Headquarters cost
recovery staff to ensure diat data are accurately entered. Your IMC can
advise you as to die existing procedure(s) in your region.
RPMs/OSCs should ensure that target dates for demand letters,
negotiations, referrals, decisions not to pursue cost recovery, and odier
enforcement activities are recorded in CERCLIS 3/WasteLAN. Pre-SARA
settlements should be reviewed to determine if CERCLIS 3/WasteLAN
should be updated widi information pertaining to die reimbursement of
oversight costs.
Cost recovery actions start with the issuance of a demand letter. This is a
section 122(e) letter issued pursuant to section 107 from EPA to the PRP
requesting diat the PRP reimburse the Fund for a specific amount
associated with one or more response activities. Demand letters are typically
sent for each separate response action. Credit for this activity is given on
the date the demand letter is signed by the appropriate EPA official and
recorded in WasteLAN. This is a SCAP reporting measure and is recorded
as the SubAction Demand Letter Issued, or DD.
-------
12-33
The "Past costs addressed (>$200,000 target" includes cost recovery actions
(at NPL and non-NPL sites) for reimbursement of Trust Fund amounts
greater than or equal to $200,000. This target also captures administrative
cost recovery settlements, section 106/107 or 107 judicial referrals for cost
recovery, settlements for past costs under a CD (with no prior litigation
referral), preparation of DDs or 10-point settlement analysis documents not
to pursue cost recovery, and bankruptcy filings. It is vital to the
management of the cost recovery program that sites with upcoming SOLs
be addressed prior to the expiration of their SOL. Therefore, regions will
not be allowed to substitute for targeted sites. A matrix of SCAP targets and
measures relevant to cost recovery actions/decisions is presented as
Exhibit 12-5.
12-5 SCAP Targets for Cost Recovery
Activity
Partial Costs Addressed
>$200,000
SCAP
Target
X
Quarterly
Target
X
Annual
Target
X
SCAP Measures for Cost Recovery
Activity
Demand Letters Issued
Section 106, 106/107, 107
Case Resolution
Total Cost Recovery
Settlements
SCAP
Plan/Report
X
X
X
Quarterly
X
X
Annual
X
X
X
The following are definitions for Cost Recovery-related targets and
measures.
• Section 107 or 106/107 Referrals - Credit is given on the date of
the RA's transmittal letter to OECA or DOJ as recorded in
WasteLAN.
• Settlement under CD (With No Prior Referral) - Credit is given
on the date of die RA's transmittal letter to Headquarters or DOJ as
recorded in WasteLAN.
• Cashout Settlements - Credit is given on die date of the RA's
transmittal letter to Headquarters or DOJ or when the RA signs the
AOC for the cashout. This date must be recorded in WasteLAN.
-------
12—34 Cost Recovery
• DDs Prepared Not to Pursue Cost Recovery Claims - Credit is
given when the document is issued by the regional office and
recorded in WasteLAN.
• Administrative Settlement - Credit is given on the date that the
regional office or DOJ receives payment from the PRPs in direct
response to a demand letter for voluntary cost recovery or the date
the RA signs the AOC for cost recovery. The date must be reported
in WasteLAN.
• Bankruptcy Filing - Credit is given based on the date that the
bankruptcy strategy package is prepared or on the date that the first
creditor committee meeting convenes as reported in WasteLAN.
These are recorded in CERCLIS 3/WasteLAN as the SubActions
Creditors Committee Meeting and Bankruptcy Strategy Package.
• Section 106, 106/107, 107 Case Resolution - Case resolution is
the conclusion of a section 106, 106/107, or 107 judicial action by a
full settlement, a final judgment, a case dismissal, or a case with-
drawal. Credit for case resolution is given when one of the following
occurs:
A CD is entered in court fully addressing the complaint with all
parties.
The case is withdrawn.
The case is dismissed.
A trial is concluded and a judgment entered fully addressing the
complaint.
The case resolution date (activity actual completion date) is one of the
following:
• Date the CD is entered.
• Date the case is withdrawn.
• Date the case is dismissed.
• Date the judgment is entered.
The case resolution is a SCAP reporting measure.
All dates must be entered into WasteLAN. Credit for referrals is based on
the referral package, not on the number of sites. Credit will be withdrawn if
a case is returned to the region by OECA or DOJ for additional work, but
will be reinstated upon re-referral and will be based on the quarter of re-
referral. New WasteLAN activity codes were developed for reporting debt
collection procedures and bankruptcies.
For specific coding requirements into CERCLIS 3/WasteLAN, see the
SCAP/OIL Quick Reference Coding Guide or your IMC.
-------
72-35
References
OSWER Directive 9200.3-14-1D, SuperfundlOil Program Implementation
Manual (updated biennally).
SCAP/OIL Quick Reference Coding Guide.
-------
13. Community
Involvement
-------
13-i
Chapter 13 Community Involvement
13.1 Description of Activity 1
13.1.A Introduction 1
13.1.B Techniques for Effective Community Involvement 1
13.1.C Community Involvement Plans 5
13.1.D Community Involvement Lead 6
13.2 Procedures and Interactions 7
13.2.A Community Involvement Plan 7
13.2.A.1 Coordination with Enforcement Staff 7
13.2.A.2 Consistency with Enforcement Actions 7
13.2.B Recent Initiatives and Reforms 8
13.2.B.1 Regional Ombudsmen 8
13.2.B.2 Environmental Justice Initiatives 8
13.2.B.3 Community Advisory Groups 8
13.2.B.4 Technical Assistance Grants 9
13.2.B.5 Technical Outreach Services for Communities 9
13.2.B.6 Improved Public Access to Superfund Information 9
13.2.B.7 Community Involvement Pilot Projects 9
13.2.C PRP Involvement 10
13.2.C.1 Notice to PRPs 10
13.2.C.2 Negotiations 10
13.2.D Community Involvement During Removal Actions 11
13.2.E Community Involvement During Remedial Actions 11
13.2.E.I Community Involvement Following an RI/FS Order 12
13.2.E.2 Proposed Plan and Public Comment 12
13.2.E.3 Public Notice and Comment on Consent Decrees for RD/RAs.... 13
13.2.E.4 Community Involvement During PRP Remediation 14
13.2.F Other Enforcement Actions 14
13.2.F.1 Injunctive Litigation 14
13.2.F.2 Cost Recovery 15
13.2.G Administrative Record 15
13.3 Planning and Reporting Requirements 17
13.3.A Superfund Comprehensive Accomplishments Plan 17
13.3.A.1 Range of Activities 17
13.3.A.2 Range of Costs 17
13.3.B Case Budget 17
13.4 Potential Problems/Resolutions 18
13.4.A Volatile Public Meeting 18
13.4.B Lack of Community Interest 18
13.4.C PRP Involvement 18
13.4.D PRP as Principal Employer 18
-------
13—H Community Involvement
-------
13-1
Chapter 13 Community Involvement
13.1
13.1.A Introduction
13.1.B Techniques
for Effective
Community
Involvement
Description of Activity
A site-specific and well-planned community involvement effort is an integral
part of every Superfund response. The Superfund community involvement
program promotes two-way communication between members of the
public, including Potentially Responsible Parties (PRPs), and die lead
government agency responsible for die site. Activities are conducted
throughout the planning and implementation of Superfund responses to
encourage communication between government staff and die public.
Exhibit 13-1 illustrates the relationship between community involvement
activities and die Superfund technical process.
Through experience widi the Superfund program, EPA has found that its
decision-making ability is enhanced by actively soliciting comments and
information from the public. This chapter discusses how community
involvement activities are affected when enforcement actions are initiated.
There are many techniques that can be used in a site-specific community
involvement program. EPA has found that diere can be no set formulas for
deciding which techniques to use. Each community is different, and some
community involvement programs may include tribes or multiple
communities. The issues of importance to the public, die level of concern,
die history of public involvement, and die socioeconomic background of die
community vary from site to site. Community involvement efforts must,
therefore, be tailored to the distinctive needs of each community. For
instance, if the community is not fluent in English, bilingual fact sheets and
notices may need to be provided. Also, die physical ability of the
community to attend meetings should be evaluated. Efforts must also be
tied to die technical response schedule and enforcement considerations for
the site. Some general recommendations for working with the community
include die following:
• Involve die community early in the process.
• Provide more information radier dian less.
• Encourage regular meetings in areas of intense community awareness.
Specific techniques for ensuring open and candid communication include
small group or one-on-one meetings and frequent telephone calls. Fact
sheets, public meetings, newsletters, and press releases are also appropriate to
ensure citizen understanding of issues and activities associated with a site.
When large public meetings are needed, they must be carefully planned to
enhance productive communication. The timing, benefits, and limitations
of each technique are described in depdi in EPA documents.
Tribes also require special consideration. Federally recognized tribes are
unique sovereign nations. Section 126(a) of CERCLA authorizes EPA to
provide a tribe with "substantially die same treatment" as a state for purposes
of notification regarding hazardous waste sites, consultation on cleanup
actions, access to information, and other provisions.
-------
13—2 Community Involvement
13*1 Relationship of Community Involvement Activities
to the Superfund Technical Process
Technical
Process
Required
Communiy
Involvement
Activities
Conduct
Community
Interviews
Inform
Interested
Parties of
Availability
Suggested
Community
Involvement
Activities
Brief Technical
Staff
Telephone
Officials/Citizens
Activities in broken line box
are done concurrently.
Telephone
Officials/
Citizens
Conduct
Meetings with
Community
Prepare
"Kickoff" Fact
Sheet
Develop
Mailing List
Designate
Agency
Contact
Conduct
Workshops
Remind
Community of
TAG Option As
Necessary
Maintain
Telephone
Contact with
Key Community
Representatives
Solicit Citizen
Input for
Evaluating FS
Alternatives
Respond to
Media Inquiries
Mail TAG Fact
Sheet to Key
Community
Representatives
As Necessary
-------
13-1 (cont.) Relationship of Community Involvement Activities
to the Superfund Technical Process
13-3
Prepare and
Publish Notice
Make Proposed
Plan and RI/FS
Available in
Administrative
Record and
Information
Repository
Develop and
Distribute Fact
Sheet
Issue News
Release
Mention TAG
Option in Public
Notices
Announce 30 Day
Comment Period
with Notice (and,
upon timely
request, a
minimum 30-day
extension)
Consider Written/
Oral Comments
Prepare and
Publish Notice
Prepare
Meeting
Transcripts and
Make Available
in
Administrative
Record and
Information
Repository
Hand out TAG
Fact Sheet
Prepare and
Publish Notice
Make Available
in
Administrative
Record and
Information
Repository
Distribute
Responsiveness
Summary to
Public
Commenters
and Mailing List
Prepare Public
Notice
Make New
Proposed Plan
Available in
Administrative
Record and
Information
Repository
-------
13—4 Community Involvement
13-1 (cont.) Relationship of Community Involvement Activities to the Superfund
Technical Process
Conduct
P,,hiir
Comment
Period
• Announce 30 Day
Comment Period
with Notice (and
upon timely
request, a
minimum 30-day
extension)
• Consider
Written/Oral
Comments
Provide
Onp"i
-------
75-5
13.1.C Community
Involvement
Plans
The federal governments legal and political relationship with tribes includes
the federal trust responsibility diat arises from Native American treaties,
statutes, executive orders, judicial decisions, and die historical relations
between die United States and tribes. The trust responsibility requires die
federal government to consider die best interests of tribes, including
protection of the tribal sovereignty of each tribal government, in its
interaction widi them and when taking actions that may affect them.
On April 29, 1994, President Clinton issued a directive to all executive
departments and agencies of die federal government stating diat "as
executive departments and agencies undertake activities affecting Native
American tribal rights or trust resources, such activities should be
implemented in a knowledgeable, sensitive manner respectful of tribal
sovereignty."
The President's directive requires dial, in all activities relating to or affecting
the government or treaty rights of tribes, die executive branch shall do the
following:
• Operate widiin a government-to-government relationship widi
federally recognized tribes.
• Consult, to the greatest extent practicable and permitted by law, with
tribal governments before taking actions diat affect federally recog-
nized tribes.
• Assess die impact of Agency activities on tribal trust resources, and
assure that tribal interests are considered before the activities are
undertaken.
Because of this unique and important relationship with tribes, it is
important diat tribes be considered and included in all aspects of die
community involvement program.
Reference
Community Relations in Superfund: A Handbook, EPA 540-R-92-009.
The formal- name for organized EPA community involvement activities at a
Superfund site, as required by die National Contingency Plan (NCP), is die
Community Involvement Plan (CIP). This plan provides an overview of
die community involvement program planned for a site; die historical,
geographical, and technical details explaining why die site is on the NPL; a
description of die community and its involvement widi the site; details on
community involvement approaches to be taken; and die timing of
suggested activities. There are typically three appendices to the CIP: a
mailing list of interested parties and suggested locations for meetings,
information repositories, and Administrative Record (AR) files.
For enforcement sites, EPA regional offices are responsible for developing
CIPs and associated activities. When EPA has negotiated an order with
responsible parties, EPA is designated as die lead agency for community
involvement. If the state negotiates the order, generally die state will have
-------
Community Involvement
the lead for community involvement, with EPA oversight. The conduct of
community involvement at state-lead sites, however, is negotiable with EPA.
The following sections of this chapter highlight these responsibilities by
describing the following:
• Procedures and interactions of key community involvement players
during enforcement actions.
• Planning and reporting requirements for community involvement
during enforcement actions.
• Potential problems that may arise during community involvement
activities, and potential resolutions.
Reference
Community Relations in Superfund: A Handbook, EPA 540-R-92-009.
13.1 .D Community The lead agency, as defined in Section 300.5 of the NCP, is responsible for
Involvement conducting community relations activities and for coordinating the
. . activities among any other agencies diat may be involved.
-------
73-7
13.2
13.2.A Community
Involvement
Plan
13.2.A.1
Coordination
with
Enforcement
Staff
13.2.A.2
Consistency
with
Enforcement
Actions
Procedures and Interactions
Community involvement activities should be planned as early in the
enforcement process as possible, generally before an RI/FS Special Notice
Letter is sent to PRPs. Information gathered during community interviews
provides the basis for the development of site-specific CIPs. The quantity
and quality of the information gathered from interviews will directly affect
the relevance and effectiveness of communications with the community.
The process for conducting these interviews is detailed in Chapter 3 of
Community Relations in Superfund: A Handbook.
Discussions about die site should be held with regional technical and legal
staff in advance of die interviews so diat the community involvement staff
can be appraised of any situations diat might impact diese interviews.
Regardless of whedier or not viable PRPs have been identified, the Remedial
Project Manager (RPM) should participate in the community discussions.
To incorporate the full range of views, lead agency staff may consider
interviewing PRPs in the community. The EPA enforcement team for the
site will determine whom to interview. This team is comprised of a
Community Involvement Coordinator (CIC), the On-Scene Coordinator
(OSC), regional counsel, the Environmental Justice Regional Coordinator,
and the RPM, as well as equivalents at the state level when the state has the •
lead.
Reference
Community Relations in Superfund: A Handbook, EPA 540-R-92-009.
Careful planning and coordination of community involvement activities
among the CIC, OSC, regional counsel, and RPM is crucial to prevent
release of inaccurate or misleading information, or information that might
be detrimental to the settlement and/or litigation process.
The CIC is ultimately responsible for ensuring diat the community
involvement requirements of Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) are implemented. Therefore,
final approval of the CIP should be by the CIC, with concurrence on
specific sections by members of die team.
Community involvement activities oudined in a CIP for an enforcement
site should be consistent widi the settlement process and the schedule of
enforcement actions. Community involvement staff may wish to document
EPA's approach to coordinating and sharing information with PRPs within
the CIP Any special conditions or Agency interaction with the PRPs,
however, should be spelled out in the Administrative Order or Consent
Decree (CD), not in the CIP.
Early in the site remediation process, the public must be informed by
publicly distributed fact sheets or at a public meeting if PRPs are willing to
implement the CIP. However, community involvement staff must refrain
from public discussion of details of PRP involvement with die site prior to a
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13—8 Community Involvement
13.2.B Recent
Initiatives
and
Reforms
13.2.B.1 Regional
Ombudsmen
13.2.B.2 Environmental
Justice
Initiatives
13.2.B.3 Community
Advisory
Groups
CD being signed in order to avoid tension and mistrust between EPA and
PRPs that might cause delays in the negotiations.
Assuming a site has not been referred to the Department of Justice (DOJ)
for litigation, the CIP needs to inform die public of die possibility of
litigation. EPA staff, therefore, need to explain at public meetings or in fact
sheets that pending or planned litigation may impose constraints on the
release of certain information or on the conduct of community involvement
activities. Community involvement staff should describe die litigation
process and inform die community that only information that can be
ascertained from court files will be available. Agency statements about die
case must be cleared with DOJ before issuance. The regional counsel team
members will be die focal point for that clearance, as well as for consulting
with DOJ on statements concerning site status such as investigations, risk
assessments, and response work. The plan will be amended to reflect any
potential effects diis could have on community involvement activities.
EPA has made several recent initiatives and reforms to improve the outreach
and community involvement efforts of die Superfund program. The
reforms reflect die Agency's efforts to enhance and develop community
involvement beyond die regulatory requirements in the NCR Several of the
reforms are discussed below.
The Regional Ombudsmen (RO) is responsible for resolving concerns and
providing guidance to both regional personnel and to stakeholders,
including the community. The RO can also identify sites requiring
cleanups, assist in Brownfields area and environmental justice issues, and
identify criminal cases.
Several environmental justice initiatives have been implemented to benefit
communities with socioeconomic disadvantages. For example, the
Superfund Jobs Training Initiative was developed in response to the demand
for local economic benefits stemming from Superfund site cleanups.
Reference
Office of Site Remediation Enforcement (OSRE) "Superfund Reforms
Annual Report FY 1997."
Community Advisory Groups (CAGs) are committees, task forces, or
boards made up of citizens widi diverse community interests that provide a
public forum for discussing die needs and concerns about die decision-
making process at Superfund sites. CAGs may not be appropriate for every
site, and the impetus for establishing one should come from the
community. A CAG can be formed at any point in die cleanup process, but
may be most effective if started early in the process.
References
"About die Community Advisory Group Toolkit: A Summary of the Tools,"
EPA 540-K-97-007.
"Community Advisory Toolkit for die Community," EPA 540-R-97-037.
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13-9
13.2.B.4
Technical
Assistance
Grants
13.2.B.5
Technical
Outreach
Services for
Communities
13.2.B.6
13.2.B.7
Improved
Public Access
to Superfund
Information
Community
Involvement
Pilot Projects
"Community Advisory Groups at Superfund Sites," EPA 540-F-97-031
(Spanish).
"Community Advisory Groups at Superfund Sites," EPA 540-F-96-016.
"Superfund Today: Focus on Community Advisory Groups," EPA 540-K-
96-005.
"Community Advisory Groups: Partners in Decisions at Hazardous Waste
Sites," EPA 540-R-96-043.
Office of Solid Waste and Emergency Response (OSWER) Directive
9230.0-2, "Guidance for Community Advisory Groups at Superfund Sites"
(December 1995).
Technical Assistance Grants (TAGs) are grants of up to $50,000 that are
available to community groups for hiring technical advisors who help the
community understand site-related technical information. The Agency is
close to completing a revised version of die TAG rule which contains several
simplifying provisions, including a clarification of die statutory language
regarding "not more than one grant may be made...widi respect to a single
facility." This clarification allows for non-concurrent TAGs at Superfund
sites.
References
OSRE, "Superfund Reforms Annual Report FY 1997."
OSRE, "Superfund Reforms Annual Report FY 1996."
Technical Outreach Services for Communities (TOSC) is a technical
assistance program created to aid communities dealing widi hazardous
substance issues regardless of dieir eligibility to receive a TAG. TOSC is a
no-cost, non-advocate program supported by EPA's five university-based
Hazardous Substance Research Centers (HSRCs). TOSC projects may be
referred to die HSRCs by communities, EPA, states, or tribes. There are
more dian 90 TOSC programs underway, including TOSC for Brownfields
projects.
•
The National Superfund website has been redesigned to make it easier for
the public to access and find Superfund program information, including
online querying of Superfund data. All regional offices have developed
homepages diat include information such as site lists, site-specific
information, and links to state Superfund activities.
Several pilot projects have been implemented to enhance community
involvement in die enforcement process. For example, one pilot project was
initiated at 13 sites in 9 of 10 EPA regions, where PRPs committed to
conduct cleanup actions or investigations. Several community involvement
techniques were tested, including inviting communities to review and
comment on draft technical workplans and proactively sharing cleanup and
remedy information widi die public. The benefit of increased community
involvement is increased goodwill from die public and in some instances,
higher quality work products.
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13—10 Community Involvement
13.2.C PRP
Involvement
13.2.C.1
Notice to
PRPs
13.2.C.2 Negotiations
EPA is the lead agency for developing and carrying out community
involvement activities at enforcement-lead sites. PRPs may assist in
community involvement activities at the discretion and under the oversight
of the regional office. Specifically, PRPs should be. included in community
involvement activities at sites where they are conducting either the Remedial
Investigation/Feasibility Study (RI/FS), the Remedial Design/Remedial
Action (RD/RA), or both. PRP community involvement activities may
include participation in public meetings and preparation of fact sheets, and
should be reflected in the CIP. However, EPA will not negotiate widi PRPs
on the contents of press releases, fact sheets, or other documents distributed
to the public.
Notice letters are used to inform PRPs of their potential liability and to
provide them widi an opportunity to enter into negotiations, or to conduct
or finance response activities. Notice letters should contain an invitation to
participate in community involvement activities and an outline of the terms
by which those activities may be conducted. The negotiation process is
discussed in detail in Chapter 5, RI/FS Negotiations/Settlement, and
Chapter 8, RD/RA Negotiations/Settlement.
Negotiations are generally conducted in confidential sessions between the
PRPs and EPA or the state. The public should be informed that neither the
public nor the technical advisor (if one has been hired through a TAG by a
community) may participate in negotiations among EPA, DOJ, and the
PRPs unless everyone agrees to allow such participation. Moreover, litde, if
any, information regarding negotiations will be available to the public
during negotiations.
The confidentiality of statements made during the course of negotiations is
a well-established principle of die American legal system, which promotes a
thorough and frank discussion of the issues between the parties in an effort
to resolve differences. Confidentiality ensures diat offers and counter-offers
made in die course of negotiations may not and will not be used by one
party against die other in any ensuing litigation. PRPs may be unwilling to
negotiate without the guarantee of confidentiality. They may fear public
disclosure regarding issues of liability and odier sensitive issues that may
damage their potential litigation position or their standing widi the public.
This expectation of confidentiality necessarily restricts die type and amount
of information diat can be made public.
Community involvement staff should consult widi and obtain the approval
of odier members of die technical enforcement and regional counsel team
before releasing any information regarding negotiations. If the site has been
referred to, or is in litigation, DOJ approval also should be obtained.
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13-11
13.2.D Community
Involvement
During
Removal
Actions
13.2.E Community
Involvement
During
Remedial
Actions
EPA encourages public participation during removal actions to the extent
possible. Removal actions, however, may not always allow for the same
degree of participation as remedial actions because situations that require
emergency removals do not allow for extensive public involvement.
Adjustments to the community involvement process must be made to
accommodate necessary time constraints. The NCP requires that a CIP be
prepared for all removal actions lasting longer than 120 days. The NCP
also requires a public comment period of at least 30 days for removals with a
planning period of six months or more before the initiation of on-site
activity. For removals with a planning period of less than six months, a
public comment period may be held when appropriate. The public
comment period, if held, begins when the AR file is made available for
public inspection.
The enforcement program encourages PRPs to conduct or pay for removal
actions. At any time, the Agency may arrive at an agreement with the PRPs
to conduct a removal, usually embodied in an Administrative Order on
Consent (AOC). EPA also may issue a Unilateral Administrative Order
(UAO) to compel PRPs to undertake a removal or other action. In
addition, under limited circumstances, the Agency may refer the action to
DOJ, seeking a court order to secure the removal. A UAO or AOC issued
to compel a PRP to conduct or pay for a removal is a public document and
should be made available to the affected community through the AR file.
In addition, community involvement staff, the RPM, and regional counsel
should discuss the terms of die order and describe the removal action to
citizens, local officials (including tribal officials of any potentially affected
tribes), and the media. If the PRP subsequendy fails to respond to the
order, any public statements or information released regarding the status of
actions at the site should first be cleared with appropriate regional technical
and enforcement personnel.
Remedial actions generally permit ample time for community involvement.
Meetings with small groups of citizens, local officials, tribes, and other
interested parties are extremely helpful for sharing general information and
for resolving questions. These meetings may also serve to provide
information on EPA's general enforcement process.
Distribution of general Superfund public information materials, such as the
fact sheet, "The Superfund Enforcement Process: How it Works," may be
beneficial to community involvement efforts. A discussion of how EPA
encourages settlements also may be appropriate at this time.
References
OSWER Directive 9230.0-08, "Planning for Sufficient Community
Relations (Superfund Management Review - No.43A)" (March 7, 1990).
OSWER/Office of Waste Programs Enforcement (OWPE) Fact Sheet, "The
Superfund Enforcement Process: How it Works" (Summer 1988).
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15—12 Community Involvement
13.2.E.1
Community
Involvement
Following an
RI/FS Order
13.2.E.2
Proposed
Plan and
Public
Comment
RI/FS settlements usually are resolved as AOCs. The RI/FS workplan
triggers the implementation of community involvement activities. When
the PRPs are conducting an RI/FS, the settlement triggers a "kick-off"
meeting with the public to explain the AOC and outline the next steps.
Community involvement, technical, and legal staff should attend this
meeting. Issues that should be clarified include EPA approval of the PRPs
work plan, PRPs performance of the RI/FS, and Agency oversight of die
PRP's work. A fact sheet on the RI/FS process should be distributed at this
meeting and sent to diose on the site mailing list, including local officials
and any tribes which may be affected by the proposed action. A public
announcement should be made about where the AR file will be located.
The AR will include the detailed analysis of alternatives and all RI/FS
information die Agency considers in selecting a final remedy. It should be
used as a tool to facilitate public involvement in that selection.
When the RI/FS is complete, the lead agency will issue a Proposed Plan and
publish a notice announcing die start of a public comment period. At a
minimum, the notice should be published in a major local newspaper of
general circulation. The notice should be a "display" advertisement radier
than buried in the Legal Notices section. The Proposed Plan also may be
distributed to all interested parties, including TAG and CAG organizations,
and those on die site mailing list. A formal comment period of at least 30
calendar days is to be provided for the public to submit oral and written
comments. This comment period may be extended to 60 days upon a
responsible request by die public.
A public meeting is required during die public comment period. A
transcript of die meeting on the Proposed Plan is to be available to the
public in the AR file, and may be distributed through the information
repositories or upon request.
After die public comment period on the Proposed Plan has closed and die
ROD has been finalized, a responsiveness summary is prepared, which
provides lead agency decision-makers with information about community
preferences on remedial alternatives and general concerns about the site. It
also demonstrates to members of die public how dieir comments were
considered during die decision-making process. Bodi die responsiveness
summary and die ROD will be placed in die AR file and odier information
repositories. In addition, die responsiveness summary may be distributed to
commentors and diose on the site mailing list.
References
Community Relations in SuperfuneL A Handbook, EPA 540-R-92-009.
OSWER Directive 9836.2, "CERCLA Community Relations Mailing List"
(February 6, 1989).
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13-13
13.2.E.3
Public
Notice and
Comment on
Consent
Decrees for
RD/RAs
If a negotiated settlement under CERCLA section 106 is reached, the
proposed CD will be submitted to the U.S. District Court for approval, as
required under CERCLA section 122(d)(l). At the time DOJ lodges the
CD with the court, a notice of the proposed agreement must be published
in the Federal Register. There must also be a notice of a public comment
period on the proposed CD before its entry by the court as a final
judgment.
Responsible parties who are non-setders to die agreement usually take this
opportunity to raise their own concerns. They may file a court case to
block entry of the CD. States or tribes may do likewise if diey believe a CD
does not protect their interests.
The public comment period must be at least 30 calendar days in length and
may be extended upon request. The proposed CD may be withdrawn or
modified if comments demonstrate that it is inappropriate, improper, or
inadequate.
To ensure that public comment opportunities are extended to interested
parties, Agency staff generally issue a press release after the CD has been
lodged as a proposed judgment with the court. For PRP-lead sites, DOJ
should notify regional counsel for the particular site and provide a copy of
the Federal Register notice of die decree. Regional counsel should ensure
that technical and community involvement staff are informed of this.
Community involvement staff can then mail copies of the press release or
copies of the Federal Register notice to persons on the site mailing list. The
press release should indicate how copies of the CD may be obtained and the
location of other relevant documents. The procedures for public comment
on the CD and a contact name for obtaining further information should
also be announced. The public notice and press release for the CD may be
combined.
Communications with the public should focus on the remedial provisions
of the setdement agreement. Details of the negotiations, such as the
behavior, attitudes, or legal positions of PRPs; any compromises
incorporated in the setdement agreement; evidence; or attorney work
products must remain confidential.
If a negotiated setdement for RD/RA results in actions fundamentally
different from those selected in the ROD, the ROD will have to be
amended. An amendment to a ROD also requires a public comment
period, which should coincide, if possible, with the comment period for the
CD. Comments must be addressed in the responsiveness summary for the
ROD Amendment, not the CD. During the formal comment period, a
public meeting may be held. Agency staff must offer the opportunity for a
public meeting when there are significant community issues or concerns, or
the site team thinks a meeting is prudent. These meetings should be
documented, and significant oral comments received during the meeting
should be addressed in a response to comments documented on the CD.
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13—14 Community Involvement
13.2.E.4
Community
Involvement
During PRP
Remediation
13.2.F Other
Enforcement
Actions
13.2.F.1
Injunctive
Litigation
Once the public comment period on the proposed CD has closed, DOJ
staff (in cooperation with EPA and state staff) will consider each significant
comment and write a response. DOJ will then file a "Motion to Enter" the
CD to make it legally binding. Responses to comments are released to the
public at the same time. The Agency should use the AR and other
information repositories to make these documents available to the public. A
third press release may be issued at this time announcing entry of the CD.
The lead agency retains responsibility for community involvement during a
PRP-lead remediation that conforms with a CD or any enforcement order.
The scope and nature of community involvement activities will be the same
as for Fund-lead response actions. When PRPs participate in community
involvement activities at the site, EPA, state, tribal, and PRP roles should be
explicitly defined. A PRP may not have been involved in the initial stages
of the CIP, but later may show sufficient interest, commitment, and
capability to warrant some level of participation. The CIC should then re-
evaluate the PRPs role in conducting community involvement, and a new
CIP may be developed. PRP involvement in community involvement
activities also may be addressed in the CD or other enforcement orders.
Reference
OSWER Directive 9836.0-1A, "Community Relations During
Enforcement Activities and Development of the Administrative Record"
(November 1991).
Section 122(i) of CERCLA requires die lead agency to publish a notice of
proposed settlements for AOCs under sections 122(g)(4) (de minimis
setdements) and 122(h) (cost recovery settlements/arbitration). The notice
published in the Federal Register must identify the site and the parties to the
proposed settlement. A public comment period of at least 30 days is
required for diese agreements. Regional staff should provide notice (e.g., a
press release, a notice to persons on the site mailing list, or an advertisement
in the newspaper of local circulation) to supplement die Federal Register
notice. For further information on response to comments, see Chapter 6 of
Community Relations in Superfund: A Handbook.
Reference
Community Relations in Superfund: A Handbook, EPA 540-R-92-009-
An injunctive case may be referred to DOJ for litigation at any point in the
enforcement process, which may change the scope of community
involvement activities. Community involvement activities at the site should
be re-evaluated by the site team, and changes to accommodate
confidentiality should be agreed upon by the site team, including DOJ.
While the CIP should be implemented as previously approved, litigation
may require changes in public disclosures. For example, die court may
impose a gag order or place restrictions on information released during
negotiations or at public meetings that address potential site remedy. Under
these circumstances, the DOJ attorney will advise die site team on how to
proceed.
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13-15
13.2.F.2
Cost
Recovery
13.2.G Administrative
Record
During cost recovery litigation, especially those following the start of Fund-
financed RAs, community interest in the site may have lessened, unless
other operable units remain that need to be addressed. In these cases, a
spokesperson chosen by the site team, in coordination with DOJ, should
take the lead in responding to inquiries regarding current site conditions.
All inquiries regarding litigation should be forwarded to the lead agency cost
recovery team, which will prepare a response, subject to the concurrence of
DOJ.
Section 113(k)(l) of CERCLA requires the establishment of an AR file
containing the information upon which the selection of a response action is
based. It also requires that a copy of the AR file be located at or near the
site. Section 113(k)(2) requires that the Agency promulgate regulations
outlining procedures for interested persons to participate in developing the
AR file. Subpart I of die NCP details how the AR file (the incomplete
record as it is being compiled) is assembled, maintained, and made available
to the public. After the ROD is signed, referring to the "file" is no longer
necessary.
The AR has two purposes. First, the record provides an opportunity for the
public to be involved in the process of selecting a response action. During
the selection of a response action, information is reviewed and made
available in the publicly accessible AR file. Second, the AR represents the
information that was available to and considered by the Agency at the time
of its decision; therefore, if the Agency is challenged concerning the
adequacy of a response action, judicial review of that selection will be
limited to the AR. A complete AR will allow the Agency to avoid costly and
time-consuming litigation. The public should be advised that comments
must be submitted in a timely manner in order to be considered.
From the RI through the selection of remedy, the AR file will be available
for public inspection at a central regional location, at or near the site. The
AR is the public's most complete source of information upon which the lead
agency bases its decisions when selecting a response action, and should be
used as a tool for facilitating public involvement.
Publicly released documents concerning response selection should be made
available to all interested parties at the same time. If EPA requests that
PRPs review a plan, other members of the public should review that plan as
well. When a kick-off meeting is scheduled, the public, including residents
and PRPs, should be invited.
The record file and CIP for a remedial action should be made available to
the public no later than the time the RI phase begins, usually when the final
RI/FS work plan is approved. The timing for establishing the record file for
a removal action will depend on the nature of the removal. As outlined in
the NCP, for removals with a planning period of at least six months before
on-site activities will be initiated, the record file must be made available to
the public when the Engineering Evaluation/Cost Analysis, or its equivalent,
is available for public comment. For removals with a planning period of less
than six months, die record file must be available to the public no later than
60 days after the initiation of on-site cleanup activity.
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15-16 Community Involvement
The CIC s duties concerning the relationship of the AR file to the
information repositories, public notices, and public comments are described
in Chapter 6 of Community Relations In Superfund: A Handbook. Additional
information on the roles of the CIC, OSC, RPM, and regional counsel in
the development and maintenance of the AR can be found in this
handbook, in Chapter 15, Records Management, and in "Final Guidance
on Administrative Records for Selection of CERCLA Response Actions"
(December3, 1990).
References
Community Relations in Superfund: A Handbook, EPA 540-R-92-009.
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records
for Selection of CERCLA Response Actions" (December 3, 1990).
-------
15-17
13.3
13.3.A Superfund
Comprehensive
Accomplishments
Plan
13.3.A.1
Range of
Activities
13.3.A.2
Range of
Costs
13.3.B
Case
Budget
Planning and Reporting Requirements
Superfund Comprehensive Accomplishments Plan (SCAP) planning
activities take place at the beginning of each fiscal year. The site team,
including the RPM, CIC, and regional counsel decides the course of
community involvement activities for each site by quarter. For PRP-lead
sites, the enforcement case budget provides funding for community
involvement.
Site-specific characteristics affect the costs of community involvement at
Superfund sites. The unique features of each region and the specific
characteristics of each site necessitate individualized community
involvement programs to accommodate different levels of interaction with
the public.
The range of activities conducted for Superfund community involvement
may include developing brochures, writing CIPs, interviewing members of
the community, preparing fact sheets, organizing information repositories,
organizing public meetings, issuing public notices, developing ROD
responsiveness summaries, holding small group meetings, translating
information for communities, and conducting workshops. The community
involvement staff in the regional Superfund management office usually works
with the RPM to conduct these activities.
As stated above, the range of costs varies from site to site. Higher costs can
be expected at sites that are more complex, and, thus, more time
consuming. A variety of conditions and circumstances may influence the
costs of performing community involvement activities at Superfund sites,
such as the following:
• Different regional preferences and expectations.
• Political, social, and economic differences among sites.
• Level of technical complexity.
• Stage of the remedial response action.
• Level of public involvement.
• Size of geographic area.
• Extent of travel requirements.
The enforcement case budget provides funds for community involvement
for RI/FS and RD/RA activities when a PRP lead is expected. The CIP
should be funded concurrently with the RI/FS negotiations. Community
relations implementation (CRI) should be funded concurrently with the RI/
FS oversight work assignment. A revised CIP should be funded
concurrently widi the RD/RA negotiations and CRI for the RD/RA
oversight. The enforcement case budget does not fund community
involvement at federal, state, or federal-enforcement lead sites. The
community involvement lead should be responsible for activities funded by
the enforcement case budget.
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13—18 Community Involvement
13.4
13.4.A Volatile
Public
Meeting
13.4.B
Lack of
Community
Interest
13.4.C
PRP
Involvement
13.4.D
PRP as
Principal
Employer
Potential Problems/Resolutions
This section discusses specific problems that may occur during community
involvement activities at enforcement sites and suggests methods for
resolving these issues.
Keeping citizens informed from the beginning of the process will help to
avoid volatile situations. Perceived health and safety concerns posed by a
hazardous waste site, however, can sometimes lead community members to
react emotionally during public meetings and informational briefings. EPA
technical and legal staff may use a neutral, third-party moderator to
facilitate a useful exchange of information during a meeting. A moderator
can help set die tone for a meeting by setting fordi guidelines at the outset.
When a moderator serves as die intermediary between citizens and the lead
agency, the meeting may run more efficiently.
Through initial contacts widi a site community, EPA may discover that
citizens have little knowledge of, or interest in site activities. In diis
situation, it may be necessary to contact a broader group of community
members to minimize die likelihood diat undetected concerns get
overlooked. Additional groups diat may be contacted include clergy,
League of Women Voters, civic groups, garden clubs, neighborhood
associations, and professional organizations. Information on these groups
is usually available from the local Chamber of Commerce. If, after
contacting a broad range of potential interest groups, no significant interest
or concerns are identified, community involvement staff should devote
time to developing and implementing extensive outreach efforts.
As oudined in Chapter 6 of Community Relations in Superfund: A
Handbook, PRPs may participate in community involvement activities.
This may include developing fact sheets and brochures on clean-up actions.
In this situation, die RPMs should make it clear to die community which
materials have been produced by EPA and which have been prepared by the
PRP with review by EPA. Further, RPMs should work closely widi PRPs
who wish to develop community involvement materials to ensure that
those materials receive adequate EPA review before distribution. EPA, and
not die PRPs, retains all decision-making authority and directs all
community involvement activities. When EPA produces a fact sheet or
other outreach document, diose materials also should be distributed to the
PRP.
Reference
Community Relations in Superfund: A Handbook, EPA 540-R-92-009.
The nature of the environmental threat and how direcdy a community feels
affected generally determine die reaction of die community toward
outreach activities at a site. In some situations, however, economic
considerations of die residents can outweigh dieir environmental concerns.
Nevertheless, die community must be informed diat PRPs will be made
accountable to die public for dieir site. RPMs should address diese fears by
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13-19
emphasizing EPA's desire to present the facts about the site. For example,
when a PRP is the principal employer in a town, citizens may fear losing
their jobs if they attend meetings and express concerns about the site. To
overcome this barrier to public expression, the CI team should invite private
communication through mail, telephone hotline, or information request
forms published in a local newspaper, and provide assurances of anonymity.
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14. State Enforcement
-------
14-i
Chapter 14 State Involvement in CERCLA Enforcement
14.1 Description of Activity 1
14.1.A Introduction 1
14.1.B Background Information 1
14.1.C State Roles in CERCLA Enforcement 1
14.1.D Tribal Roles in CERCLA Enforcement 2
14.1.E State Remediation Programs 3
14.1.F State Voluntary Cleanup Programs 3
14.1.G The Superfund Enhanced State and Tribal Role Initiative 4
14.2 Procedures and Interactions 5
14.2.A The Roles of the State and EPA in PRP Oversight 5
14.2.B CAs and Core Program Funding 7
14.2.C State and Tribal Superfund Consolidated Funding 9
14.2.D Development of the Lead Agency Enforcement CA 10
14.2.E Sections in a CA Application 10
14.2.F Development of the Superfund Memorandum of Agreement 11
14.2.G Articles in a SMOA 12
14.2.H EPA Approval of State Remedies 14
14.2.1 State Voluntary Cleanup Programs 14
14.3 Planning and Reporting Requirements 16
14.3.A Superfund Comprehensive Accomplishments Plan 16
14.3.B CERCLIS 3/WasteLAN 16
14.3.B.1 Activity Leads 18
14.3.B.2 Event Leads 18
14.4 Potential Problems/Resolutions 19
14.4.A Forum Shopping by PRPs 19
14.4.B Overseeing State Oversight of PRPs 19
14.4.C SCAP Targets 19
14.4.D Standard Planning Time Line 19
14.4.E SMOA Development 19
14.4.F State Challenges to RD/RA Consent Decrees 19
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14—ii State Involvement in CERCLA Enforcement
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14-1
14.1.B Background
Information
Chapter 14 State Involvement in CERCLA Enforcement
14.1 Description of Activity
14.1 .A Introduction This chapter focuses on state involvement in the Superfund enforcement
process, primarily addressing potential agreements and funding mechanisms
between EPA and states involved in the Superfund process. The chapter
also addresses the effects of several Superfund Administrative Reforms that
were designed to increase state involvement in the Superfund enforcement
process. These reforms have affected EPA policies addressing state voluntary
cleanup programs, deferral of National Priorities List (NPL) listings while
states oversee Potentially Responsible Party (PRP) responses, block funding
of Superfund cooperative agreement resources, and state involvement in
remedy selection. Information in diis chapter should be used in conjunc-
tion widi subpart F of the National Contingency Plan (NCP)("State
Involvement in Hazardous Substance Response"), Subpart O of 40 Code of
Federal Regulations (CFR) part 35 ("Cooperative Agreements and Super-
fund State Contracts for Superfund Response Actions"), and die EPA
guidances that are cited throughout die chapter.
The Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) provides for state involvement in selection of remedies and
negotiations. EPA and a state may agree to designate a site as state-lead
enforcement. If so, die state may receive funding for various enforcement
activities, including:
• PRP searches.
• Issuance of notice letters to PRPs.
• Negotiations widi PRPs to secure dieir commitment for site cleanup.
• Administrative or judicial enforcement actions to compel PRP
cleanup.
• Oversight of PRP response activities.
Section 121 (f) of CERCLA, as amended by the Superfund Amendments
and Reaurhorization Act, requires EPA to promulgate regulations that
provide for substantial and meaningful involvement by states in die selec-
tion, development, and initiation of remedial actions undertaken widiin
their boundaries. Subpart F of die NCP implements section 121(f)(l) of
CERCLA It specifies, among other diings, state and EPA responsibilities
for identifying state and federal Applicable or Relevant and Appropriate
Requirements (ARARs), an annual process for establishing priorities and
identifying die lead for enforcement response, and a notification process for
state participation in PRP negotiations. Section 121(f)(2)(c) of CERCLA
audiorizes EPA to conclude setdement negotiations with PRPs without state
concurrence.
EPAs strategy for state involvement in enforcement emphasizes maximizing
the number of sites that can be cleaned up by enhancing and fully utilizing
14.1.C
State
Roles
in CERCLA
Enforcement
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14—2 State Involvement in CERCLA Enforcement
14.1.D Tribal
Roles in
CERCLA
Enforcement
state capability and by minimizing duplication of effort between EPA and
the states. There are two types of state-lead enforcement sites depending on
whether EPA provides money to the state for work or oversight at the site.
Sites where EPA does not provide site-specific money and the state has the
enforcement lead are referred to as non-Fund-financed state-lead enforce-
ment sites. Sites where EPA provides money and die state has the enforce-
ment lead are referred to as state-lead enforcement sites. Section
300.515(e)(2)(ii) of the NCP provides that state concurrence on a Record
of Decision (ROD) is not a prerequisite to EPA's selecting a remedy, i.e.,
signing the ROD, nor is EPA's concurrence a prerequisite to a state's select-
ing a remedy at a non-Fund-financed state-lead enforcement site under state
law. However, remedies at a state-lead enforcement site (i.e., Fund-financed
site) must be consistent widi the NCP and with EPA policies and guid-
ances. At any site, remedies consistent with the NCP ensure successful cost
recovery efforts and reduce difficulties in deleting sites from the NPL once
remedies have been implemented.
Section 104(d)(l) of CERCLA authorizes EPA to enter into a contract or
Cooperative Agreement (CA) with capable states to take response actions.
Section 300.505 of the NCP describes the requirements for an EPA/State
Superfund Memorandum of Agreement (SMOA). Subpart O of 40 CFR
Part 35 details requirements and procedures for Core Program CAs, site-
specific CAs, and Superfund State Contracts (SSCs).
References
40 Code of Federal Regulations (CFR) part 35 Subpart O ("Cooperative
Agreements and Superfund State Contracts for Superfund Response Ac-
tions") (1994).
Office of Solid Waste and Emergency Response (OSWER) Directive
9831.9, "Questions and Answers About the State Role in Remedy Selection
at Non-Fund Financed State-Lead Enforcement Sites" (April 18, 1991).
National Oil and Hazardous Substance Pollution Contingency Plan (NCP),
40 CFR section 300.505 ("EPA/State Superfund Memorandum of Agree-
ment (SMOA)") (1990).
NCP, 40 CFR section 300.515 ("Requirements for state involvement in
remedial and enforcement response") (1990).
Opportunities for tribal participation in the Superfund process are similar to
those for states. Section 300.515(b) of die NCP provides that an Indian
tribe will be afforded substantially die same opportunity as a state to
participate in die Superfund process and receive federal funds if die tribe
meets diree standards:
• It is a federally recognized Indian tribe.
• It has a tribal governing body that is currendy performing govern-
mental functions to promote die healdi, safety, and welfare of the
affected population or to protect die environment widiin a defined
geographic area.
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14-5
14.1.E
State
Remediation
Programs
14.1.F
State
Voluntary
Cleanup
Programs
• It has jurisdiction over a site at which Fund-financed response is
contemplated.
Section 300.505 of the NCP explicidy provides diat tribes diat meet diese
standards may also enter into SMOAs widi EPA.
There are some differences in the treatment of states and tribes. CERCLA
section 104(c)(3) exempts tribes from the requirement that states provide
assurances regarding future maintenance and cost-sharing at remedial action
sites. In addition, Subpart O of 40 CFR Part 35 separately addresses state
and tribal requirements for receiving certain CAs.
References
40 CFR part 35, Subpart O ("Cooperative Agreements and Superfund State
Contracts for Superfund Response Actions") (1994).
NCP, 40 CFR section 300.505 ("EPA/State Superfund Memorandum of
Agreement (SMOA)") (1990).
NCP, 40 CFR section 300.515 ("Requirements for state involvement in
remedial and enforcement response") (1990).
Many states have statutes that audiorize state environmental agencies to
remediate or compel private parties to remediate releases of hazardous
substances. This authority can take many forms, from state responsibility
for non-NPL sites to audiority for actions at all hazardous sites in the state.
CERCLA does not preclude states from pursuing enforcement actions
under state law in the absence of formal agreement with or lead designation
by EPA. In turn, EPA has the authority under CERCLA to proceed with its
own enforcement action or attempt to intervene prior to a state settlement
with or litigation against PRPs. As specified in section 122(e)(6) of
CERCLA, however, after Remedial Investigation/Feasibility Study (RI/FS)
work has been initiated at an NPL site by EPA or the PRPs (pursuant to an
Administrative Order or Consent Decree (CD)), no PRP may undertake
any remedial action at the facility unless the action is authorized by EPA.
More than diirty states'have adopted statutes, regulations, or administrative
provisions under which private parties that voluntarily agree to clean up a
contaminated site are offered some protection from future state enforcement
action at die site. These programs are referred to as state voluntary cleanup
programs (VCPs). Regions and states may negotiate Memoranda of Agree-
ment (MOAs) that help define a division of labor between the region and
die state by defining what kinds of sites should be addressed by the VCP
and by providing diat generally EPA does not anticipate pursuing CERCLA
response actions at sites that are participating in the state's VCP, unless EPA
determines diat diere may be an imminent and substantial endangerment to
the public health, welfare, or die environment. EPA's policy on voluntary
cleanup programs is further discussed later in this chapter.
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14—4 State Involvement in CERCLA Enforcement
14.1.G
The
Superfund
Enhanced
State and
Tribal Role
Initiative
In November 1996, the Assistant Administrators for OSWER and the office
of Enforcement and Compliance Assurance (OECA) issued a policy mes-
sage commissioning work to identify and analyze major issues/barriers to
enhancing the role of states and tribes in Superfund. This message stressed
die importance of EPA, in coordination widi states and tribes, proactively
working through issues surrounding state readiness, assistance to states,
EPA-state program agreements, and the unique considerations of enhancing
tribal participation. The statement asked for recommendations on how
EPA can work to further build "strong partnerships" between the federal
government and states and tribes.
Workgroups consisting of EPA, state, and tribal representatives were formed
around these issue areas. A broad-based group of Superfund program and
enforcement personnel, and a council of senior state, tribal, and EPA
executives, oversaw the direction of die workgroups. These groups have
completed the work of crafting a comprehensive plan to enhance the state
and tribal role in Superfund. The plan, issued in March 1998, is entided
"Plan to Enhance the Role of States and Tribes in the Superfund Program."
In May 1998, EPA directed the regions to pilot die concepts in the plan
with a state and tribe in their region. Many proposals have been submitted
by bodi states and tribes interested in piloting different parts of die plan.
EPA will implement the pilots with states and tribes, and evaluate the
effectiveness of the plan in enhancing the role of states and tribes for future
Superfund work.
Reference
OSWER Directive 9375.3-03, "Plan to Enhance the Role of States and
Tribes in die Superfund Program" (March 1998).
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14-5
14.2
14.2.A The Roles
of the State
and EPA in
PRP Oversight
Procedures and Interactions
To assist EPA and individual states operating together in the Superfund
program, it is preferable to have clearly defined processes and procedures for
coordination and interaction. Although either EPA or states may conduct
enforcement actions against PRPs without the others involvement, it is in
both die states and EPA's best interests to coordinate such actions.
There is opportunity under CERCLA for the coordination and sharing of
enforcement responsibilities between EPA and the states. EPA and states
may interact in one of the following arrangements:
• States participate, in a support role, in EPA-lead enforcement actions
(EPA-lead enforcement sites).
• States assume lead responsibility relying on state enforcement
authority through a cooperative agreement (state-lead enforcement
sites).
• States assume oversight responsibility for PRPs at EPA-lead sites
(EPA-lead enforcement site with state as lead technical agency).
• States act under their own authority as lead agency, absent a SMOA
or CA, through participation in "annual consultation" (see 40 CFR
section 300.515(h)(l)). (Non-Fund-fmanced state-lead sites).
Another potential relationship between EPA and the states can be estab-
lished through the use of Core Program CAs. The Core Program provides
funding for states to develop state capabilities, including site remediation
enforcement under state authority.
Reference
NCP, 40 CFR section 300.515 ("Requirements for state involvement in
remedial and enforcement response") (1990).
The general nature of EPA and state interaction in pursuing PRP site
cleanup commitments can best be illustrated through a discussion of
required oversight roles for states and EPA, as well as available funding
schemes. Where EPA provides money to a state for site-specific remedial
work or PRP oversight, EPA will require EPA concurrence on die remedy
and consistency with the NCP.
Oversight roles are established for both the lead agency and the support
agency. The lead agency has primary responsibility for planning and
implementing a response under CERCLA The support agency furnishes
necessary data to the lead agency, reviews response data and documents, and
provides other assistance to the lead agency. A variation on diis distinction
between lead and support roles is where states or EPA can have primary
responsibilities for specific tasks (e.g., community involvement) while the
other has die overall lead for the clean up process at the site. Lead agency
designation for Fund-financed response activities is determined by EPA in
consultation with the states based on consideration of numerous factors. It
is generally preferable diat enforcement lead designation remain the same
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14—6 State Involvement in CERCLA Enforcement
throughout the remedial process, instead of the lead being designated
separately for each major event, such as the RI/FS and the Remedial
Design/Remedial Action (RD/RA).
Whenever a state negotiates with PRPs to undertake a response action, the
state should attempt to obtain a commitment from the PRPs to pay for
EPA's oversight costs prior to requesting funds from EPA. Where PRPs do
not agree to pay for EPA's oversight costs, these costs become part of EPA's
response costs, which EPA should later seek to recover from the PRPs.
When oversight costs are reimbursed by PRPs at the end of the year or at
completion of the response action, EPA funds can be used to the extent
available as described in the "Interim Final Guidance Package on Funding
CERCLA State Enforcement Actions at NPL Sites." Because CA funds are
100 percent federal, the money diat is reimbursed to EPA must go into the
Trust Fund to be reappropriated later. In applying for an enforcement CA
to fund state oversight of PRPs, the state applicant must demonstrate that
"it has taken all necessary action to compel PRPs to fund the oversight" of
negotiated cleanup activities. (See 40 CFR section 35.6l55(c)(2)(iii)).
During annual consultations or when developing agreements, EPA and the
states should consider the extent to which each party will be involved in the
other's negotiations with PRPs. The extent of involvement should be based
on various factors including the states staff resources, level of confidence
resulting from past experience with the state, and site-specific factors such as
complexity or national significance of the response action. More detailed
information is available in the "Interim Final Guidance Package on Funding
CERCLA State Enforcement Actions at NPL Sites."
Where EPA has the lead for oversight, it encourages the state to conduct
oversight tasks if it has the in-house capability to do the work. Generally,
EPA will not fund the state to hire contractors for oversight tasks (with the
exception of procuring the services of another state agency) unless the state
provides adequate justification for their use. Furthermore, EPA will not
fund states to conduct oversight tasks that duplicate EPA's efforts. Guid-
ance for determining whether to fund a state for oversight of a PRP re-
sponse can be found in "CERCLA Funding of PRP Oversight by States at
NPL Sites."
States also may be involved in three-party agreements (EPA/state/PRP).
Although the Agency does not generally encourage the use of three-party
agreements (as resource duplication may occur), it remains a viable option
where EPA and a state work together.
EPA may also defer consideration of listing NPL-caliber sites to allow states
to initiate and oversee response actions conducted and funded by PRPs
under state law. The primary goal of the deferral program is to accelerate
the rate of response actions by encouraging a greater state role. States may
participate in the deferral program on an area-wide basis by agreeing to
generic procedures and standards in a MOA with the region, or may
participate on a site-specific basis. States participating in the deferral
program should have statutory, regulatory, or administrative provisions that
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14-7
14.2.B
CAs and
Core
Program
Funding
ensure that remedies at deferred sites will be protective of human health and
the environment, and sufficient capabilities, resources, and expertise to
ensure that the response action will be substantially similar to a response
conducted under CERCLA (i.e., it will be a "CERCLA-protective"
cleanup).
A site is eligible for deferral until a state or contractor is tasked by EPA to
develop a Hazard Ranking System package for that site; a listing process
should not be halted in favor of deferral without a compelling reason.
Deferral site candidates should be of NPL caliber and should have viable
and cooperative PRPs willing to enter into an enforceable agreement to
conduct all response actions. Consequently, Fund resources generally are
not used to conduct response actions at deferred sites. A region may enter
into a CA with a state for Non-Time-Critical removal or pre-remedial
activity if PRPs at a deferred site become uncooperative or bankrupt. In
addition, regions may enter into a Core Program CA widi a state to provide
funding to develop or enhance die state's deferral program capabilities, and
may provide site-specific funding for site assessment or enforcement and
oversight activities.
References
OSWER Directive 9375.6-11, "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions" (May 3, 1995).
40 CFR section 35.6155 ("State, political subdivision on Indian Tribe-lead
enforcement Cooperative Agreements") (1990).
OSWER Directive 9831.7, "Supporting State Attorneys General CERCLA
Remedial and Enforcement Response Activities at NPL Sites" (June 21,
1988).
OSWER Directive 9831.6a, "Guidance on CERCLA Funding of State
Enforcement Actions at National Priorities List Sites" (April 7, 1988).
OSWER Directive 9831.6b, "Guidance on CERCLA Funding of Poten-
tially Responsible Party Oversight by States at National Priorities List sites"
(April 7,1988).
OSWER Directive 9831.6c, "Cost Estimates for Budgeting State Enforce-
ment Activities" (April 7, 1988).
OSWER Directive 9831.6d, "Recommended Procedures for Headquarters/
Regional Review and Concurrence of Initial Enforcement Cooperative
Agreements" (April 7, 1988).
OSWER Directive 9831.3, "EPA-State Relationship in Enforcement
Actions for Sites on the NPL" (October 2, 1984).
EPA funding of state enforcement activities is related to encouraging or
compelling PRPs to undertake response activities to clean up a site (such as
negotiations for RI/FSs and RD/RAs) and to conduct necessary technical,
administrative and enforcement activities during dieir oversight of PRPs'
response (such as compiling die Administrative Record (AR), preparing
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14-8 State Involvement in CERCLA Enforcement
remedy decision documents, and enforcing the provisions of setdement
agreements).
Two types of Superfiind response agreements are essential to state participa-
tion in CERGLA implementation. The first, die Superfund CA, is die
vehicle through which EPA can provide funds to states to assume responsi-
bility as lead or support agencies for response. CAs for remedial action
address only one site. Pre-remedial action CAs, including enforcement
CAs, may address multiple sites. Core Program CAs may be used for non-
site-specific activities diat support state implementation of CERCLA. See
subpart O of 40 CFR 35 for more information.
The second type of response agreement, the SSC, is used to ensure state
involvement and to obtain die state assurances required under section 104
of CERCLA prior to remedial action (see section 126 of CERCLA for tribal
responsibilities). SSCs are only applicable to Fund-lead activities at sites.
SSCs are not generally applicable to enforcement activities at sites, because
state assurances are not required for enforcement actions. Funding through
enforcement CAs may be for state-lead or state-support enforcement
activities. State-support activities include a review role for die state.
Core Program funding provides funds to a state to conduct CERCLA
implementation support activities that are not assignable to specific sites,
but are intended to develop and maintain a state's ability to participate in
the CERCLA response program.
The amount of Core Program funding provided to states is negotiated
between the state and the region based on the availability of funds and die
recipient's program needs in the following areas:
• Procedures for removal actions and longer-term remediation of
environmental and health risks at hazardous waste sites.
• Provisions for satisfying all requirements and assurances.
• Legal authorities and enforcement support associated with proper
administration of die recipient's program and with efforts to compel
PRPs to conduct or pay for studies and/or remediation.
• Efforts necessary to hire and train staff to manage publicly-funded
cleanups, oversee PRP-lead cleanups, and provide clerical support.
• Efforts necessary to build infrastructure procedures for AR compila-
tion and cost documentation.
• Other activities deemed necessary by EPA to support sustained EPA/
recipient interaction in CERCLA implementation.
States can use Core Program CAs to develop safety plans, quality assurance
project plans, and community involvement programs. Core Program CAs
can provide funding for document review, development, and refinement of
die enforcement program as long as such activities are not site-specific.
States can also use Core Program CAs to hire and train staff to oversee
cleanup matters and to cover clerical or administrative support, which
cannot be charged to site-specific CAs.
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14-9
14.2.C State
and Tribal
Superfund
Consolidated
Funding
References
NCP, 40 CFR section 300.515 ("Requirements for state involvement in
remedial and enforcement response") (1990).
OSWER Directive 9375.2-01, "State Core Program Funding Cooperative
Agreements" (December 12, 1987).
In the context of Superfund, the term block funding simply means consoli-
dation of multiple response activities under a single CA, with a single scope
of work and budget. These "consolidated" funding agreements exclude
remedial action CAs due to cost-sharing and other state assurances that
must be provided site-specifically. The overall goals for utilizing Superfund
block funding include: developing assistance agreements that provide states
with considerable flexibility in directing funds in support of the Superfund
program; reducing the administrative burden on both the states and EPA;
and complying with the existing law and regulations governing these
agreements.
Consolidated funding is intended to enhance states' flexibility to redirect
CA funds between and among sites and activities (to the extent allowed by
the applicable Superfund Advice of Allowance (AOA)), expand state and
tribal flexibility to transfer funds among sites and activities within the
approved tasks for die CA without prior EPA approval, reduce the need for
amendments when scope of work changes are needed, and reduce other
specific administrative budget and reporting requirements, where appropri-
ate. By reducing these budget and reporting requirements, block funding
produces transaction cost resource savings for both levels of government.
These streamlining options are accomplished through deviation from part
31 and part 35 of Subpart O. Over 60 deviation requests for block funding
activities have been approved.
To institutionalize the benefits of consolidated funding, the Office of
Emergency and Remedial Response (OERR) coordinates with the Office of
the Comptroller to ensure that regions are allowed to shift funds from
existing CAs to block funding CAs. OERR also coordinates with the
Grants Division to review and approve deviation requests.
This initiative has resulted in fewer CA amendments, saving both EPA and
states a great deal of time and resources that are better spent on cleanups.
For example, Illinois EPA submitted seven CA applications in 1996, but
only a single CA amendment in 1997. Block funding has also allowed
Illinois EPA to move from quarterly reporting to biannual reporting. While
Illinois EPA continues to send quarterly financial statements for cost
recovery purposes, project status updates are now sent on a biannual basis.
The block grant allows Illinois EPA to transfer money from one project to
another based on need and changing program priorities. Each budget shift
must be reported, but prior EPA approval is not needed and delays associ-
ated with CA application preparation and processing are gready reduced.
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14-10 State Involvement in CERCLA Enforcement
14.2.D Development
of the Lead
Agency
Enforcement
CA
14.2.E
Sections
inaCA
Application
In developing state-lead enforcement CAs, EPA evaluates states' ability to
perform the response action and enforcement. Specifically, a state must
demonstrate that it has the authority, jurisdiction, and necessary administra-
tive capabilities to take enforcement action(s) to compel PRP cleanup of the
site, or to recover cleanup costs. The region evaluates the states ability to
conduct the response action and the ability to function as the lead enforce-
ment agency. Before EPA funds state response or oversight activities under
a CA, the state has assured diat their response actions and oversight of PRPs
will be consistent with CERCLA and the NCR
Certain state activities cannot be funded under state enforcement CAs.
Detailed information can be found in subpart F of the NCP, subpart O of
40 CFR part 35, and in the "Interim Final Guidance Package on Funding
CERCLA State Enforcement Actions at NPL Sites."
References
40 CFR part 31 ("Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments") (1997).
NCP, 40 CFR section 300.515 ("Requirements for state involvement in
remedial and enforcement response") (March 8, 1990).
NCP, 40 CFR part 300, subpart F ("State Involvement in Hazardous
Substance Response") (1990).
OSWER Directive 9831.7, "Supporting State Attorneys General CERCLA
Remedial and Enforcement Response Activities at NPL Sites" (June 21,
1988).
OSWER Directive 9831-6a, "Guidance on CERCLA Funding of State
Enforcement Actions at National Priorities List Sites " (April 7, 1988).
OSWER Directive 9831.6b, "Guidance on CERCLA Funding of Poten-
tially Responsible Party Oversight by States at National Priorities List sites"
(April 7, 1988).
OSWER Directive 9831.6c, "Cost Estimates for Budgeting State Enforce-
ment Activities" (April 7, 1988).
OSWER Directive 9831.6d, "Recommended Procedures for Headquarters/
Regional Review and Concurrence of Initial Enforcement Cooperative
Agreements" (April 7, 1988).
OSWER Directive 9355.2-1, Superjund State-lead Remedial Project Manage-
ment Handbook (December 1986).
Some of the significant sections that may be included in a CA application
are listed below; detail is provided on those related to state enforcement.
Depending on the task to be funded by the CA (e.g., PRP search, issuance
of notice letters and negotiations, RI/FS), other additional provisions may
be added.
Legal Authority - Documents diat adequate enforcement authorities
are available.
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14-11
14.2.F Development
of the
Superfund
Memorandum
of Agreement
• Consistency with CERCLA section 122 - Provides that state
settlements will be consistent with certain CERCLA section 122
provisions and related EPA Superfund policy when negotiating and
settling with PRPs under a CA. (Although states can avail them-
selves of equivalent procedures, they are not authorized by CERCLA
to use section 122 or any other CERCLA authority when pursuing
enforcement actions under their own authorities).
• Negotiation Time Frames - Ensures diat the state will notify EPA if
a setdement is not reached within 90 days of issuance of special
notice for RI/FS negotiations and 120 days for RD/RA negotiations;
and requires diat the state recommend whether negotiations should
continue with the PRPs.
• Formalizing Successful Actions - Ensures that the state will com-
plete successful actions by entering into an enforceable order or
decree, or issuing some other enforceable document requiring the
PRP to conduct die response action in accordance with the NCP
and relevant EPA policy and guidance.
Other requirements diat are included in a CA application address the AR,
community involvement, and the scope of work. The planning and report-
ing requirements of diese state enforcement actions are presented in section
3 of diis chapter.
A SMOA is a non-site specific document that facilitates and documents die
processes and procedures that the region and state use when conducting
site-specific response actions. A SMOA, if negotiated properly, should
remain applicable to the EPA-state Superfund interaction for several years
with only relatively minor modifications as changes in the relationship
occur.
The SMOA is a written document that is mutually approved by die Agency
and state and that covers aspects of EPA-state interaction on Superfund
activities. The articles covered in the SMOA parallel the major points of
state-EPA interaction set forth in the NCP. EPA and the state should tailor
die SMOA to their particular needs. SMOAs are used to describe die terms
for die state and EPA when the state wants to become the lead agency for
enforcement action at an NPL site or seek EPA concurrence on die remedy
at an NPL site. A SMOA shall be supplemented by site-specific enforce-
ment agreements between EPA and states which specify schedules and EPA
involvement. The SMOA may identify the extent to which EPA and die
state will participate in each odier's response actions and how ARARs will be
identified. In die absence of a SMOA, EPA and the states shall comply with
the requirements and review times in section 300.515(h) of subpart F of die
NCP. SMOAs, unlike CAs, are not legally binding. SMOAs and die state's
responsibilities for involvement are discussed in subpart F of the NCP and
the "Interim Final Guidance on Preparation of a Superfund Memoranda of
Agreement (SMOA)." The guidance presents a model SMOA suggesting
language and content for later adaptation by EPA regions and states.
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14—12 State Involvement in CERCLA Enforcement
Reference
NCP, 40 CFR section 300.505 ("EPA/State Superfund Memorandum of
Agreement (SMOA)") (1990).
NCP, 40 CFR section 300.515 ("Requirements for state involvement in
remedial and enforcement response") (1990).
OSWER Directive 9375.0-01, "Interim Final Guidance on Preparation of
Superfund Memoranda of Agreement (SMOAs)" (May 8, 1989).
14.2.G ArtlCl6S The following paragraphs summarize material that may be included in the
in 3 SMOA SMOA regarding state enforcement; following this information is a listing
of other important articles for inclusion in the SMOA.
• Principles - This article summarizes the status of the state's hazard-
ous waste problem, the status of the state's Superfund program, the
roles of the lead and support agencies, as well as agreements concern-
ing the aggressiveness of enforcement activity.
• Enforcement - This article describes expectations for enforcement
and die general nature of EPA and state interaction in pursuing PRP
site cleanup commitments. The parties to the SMOA may agree in
principle that:
Negotiated response actions widi qualified PRPs are essential to
an effective program for the cleanup of NPL sites.
Two-party (i.e., EPA or state and PRP) setdement negotiation
and execution is generally more efficient tlian three-party (i.e.,
EPA and state and PRP) negotiation and execution.
The state has demonstrated adequate authority to carry out
enforcement.
In addition, die parties to the SMOA may agree in practice to do the
following:
Designate die lead and support agencies for enforcement actions
at NPL sites during the annual planning process.
Indicate diose sites where the support agency will be requested
to concur on die lead agency's ROD or odier decision docu-
ment. EPA retains final approval authority on RODs where it
has provided monies to states for oversight/enforcement activi-
ties.
Develop site-specific enforcement strategy oudines widi time
frames during die annual planning process.
Set fordi response action commitments and setdements with
PRPs in enforceable documents indicating the lead agency
responsible for all Superfund communication with PRPs.
Organize a meeting between the lead agency and the support
agency prior to the start of negotiations with PRPs to discuss
goals, starting points, and bottom-line positions for negotiations.
-------
14-13
Provide draft and final enforcement documents to the support
agency prior to issuance to the PRPs.
Allow for assistance requests by lead agency to support agency at
any time during the enforcement and negotiation process.
Have the lead agency notify PRPs of a planned RI/FS and
determine their willingness and ability to conduct the RI/FS.
Provide the state an opportunity to be a party to any enforce-
ment document in which it chooses to participate.
Recognize that the agreement does not limit the ultimate
enforcement authority of EPA or the United States government.
EPA and the state also may include die following articles in the SMOA as
suggested in the "Interim Final Guidance on Preparation of Superfund
Memoranda of Agreement (SMOA)":
• Introduction and statement of purpose.
• Agreement concerning roles and responsibilities.
• Lead state agency designation.
• Site-specific designation of lead/support agency.
• Remedial Project Manager (RPM)/support agency coordinator
designations.
• Support agency concurrence.
• Points of contact.
• Planning/coordination processes.
• Removal actions.
• Enforcement expectations and policy.
• Federal facilities contacts and process.
• Processes to be defined.
• Consultation, agreement, and concurrent processes.
• Support agency site-specific review/oversight.
• Resolution of disputes.
• Exclusion of third party benefits.
• Negation of agency relationship.
Subpart K of the NCP addresses roles of the state, federal facilities, and EPA
in SMOAs, Interagency Agreements, and other processes.
Reference
OSWER Directive 9375.0-01, "Interim Final Guidance on Preparation of
Superfund Memoranda of Agreement (SMOAs)" (May 8, 1989).
-------
14—14 State Involvement in CERCLA Enforcement
14.2.H
EPA
Approval
of State
Remedies
14.2.1
State
Voluntary
Cleanup
Programs
EPA retains remedy selection authority when the response is Fund-financed.
States retain remedy selection authority when they are acting under state
authority without a CA with EPA. EPA, however, may not be bound by a
state-selected remedy unless die Regional Administrator has expressly
concurred in writing. At non-Fund-financed state-lead enforcement sites
where the state does not have a CA with EPA, a state may proceed without
EPA concurrence and adoption of the ROD for the site.
The Agency's potential for achieving cleanup goals can be optimized by
including appropriate state-lead enforcement sites. This is advantageous
where states have developed a willingness and ability to manage such sites
within reasonable time frames.
The Pilot Remedy Selection By Selected States and Tribes Superfund
Reform offers a furdier opportunity to use the capabilities of states to help
achieve cleanup goals. The reform established a pilot program in which
states and tribes enter into agreements with EPA allowing diem to supervise
die remedy selection process at certain NPL sites with reduced EPA over-
sight. EPA must concur on die final ROD. This program is also discussed
in Chapter 7, Selection of Remedy.
More dian thirty states now have VCPs under which private parties that
voluntarily agree to clean up a contaminated site are offered some protec-
tion from future state enforcement action at die site, often in die form of a
"no further action" letter or "certificate of completion" from die state. Such
state commitments do not affect EPA's authority to respond to actual or
threatened releases of hazardous substances under CERCLA. However, EPA
guidance on VCPs encourages regions to use die negotiation of voluntary
cleanup plan MOAs as an opportunity to define a division of labor between
die region and die state by defining what kinds of sites should be addressed
under a VCP. EPA guidance provides model language, presented in part
below, for stating a region's intended treatment of sites participating in a
VCP covered by a MOA:
Although nodiing in diis MOA constitutes a release from
liability under applicable federal law, generally EPA does not
anticipate taking removal or remedial action at sites involved
in this VCP unless EPA determines diat diere may be an
imminent and substantial endangerment to public health,
welfare, or die environment.
EPA guidance describes six baseline criteria diat it employs to evaluate the
adequacy of state VCPs. These criteria are to be considered when negotiat-
ing a MOA. A VCP should:
• Provide opportunities for meaningful community involvement.
• Ensure diat voluntary response actions are protective of human
healdi and die environment.
-------
14-15
• Have adequate resources to ensure that voluntary response actions
are conducted in an appropriate and timely manner, and that both
technical assistance and streamlined procedures, where appropriate,
are available from the state agency responsible for the VCP.
• Provide mechanisms for the written approval of response action plans
and a certification or similar documentation indicating that the
response actions are complete.
• Provide adequate oversight to ensure that voluntary response actions
are conducted in a manner that ensures protection of human health
and die environment.
• Show the capability, through enforcement or other authorities, of
ensuring completion of response actions if the volunteering party
conducting the response action fails or refuses to complete the
necessary response actions, including operation and maintenance or
long-term monitoring activities.
Reference
OSWER/Office of Enforcement and Compliance Assurance (OECA)
Memorandum, "Interim Approaches for Regional Relations with State
Voluntary Cleanup Programs" (November 14, 1996).
-------
14—16 State Involvement in CERCLA Enforcement
14.3
14.3.A Superfund
Comprehensive
Accomplishments
Plan
14.3.B
CERCLIS 3/
WasteLAN
Planning and Reporting Requirements
EPA defines state-lead enforcement as the state having primary responsibil-
ity for a site.
In order to increase the contribution of state-lead enforcement sites toward
CERCLA cleanup goals and to encourage state enforcement activity, it is
important that funding be placed where the most evident environmental
results can be achieved. Moreover, the necessary coordination between the
federal government and states can only work when funds are planned and
reported for, as this section illustrates.
The following planning and reporting issues are presented in this portion of
the chapter:
• Superfund Comprehensive Accomplishments Plan (SCAP) process
related to state enforcement.
• State-lead enforcement and related mandates.
• Classification of site leads.
• Comprehensive Environmental Response, Compensation, and
Liability Information System 3/ Waste Local Area Network
(CERCLIS 3/WasteLAN) and related Agency and state responsibili-
ties.
• Different types of state leads.
Regions are required to report progress on state enforcement-lead sites as
they would any other site. This includes state enforcement leads where
there is federally financed work performed by the state with a state enforce-
ment component and work financed by the PRP under a state order
through which no EPA oversight support or money is provided (additional
information on activity and event lead codes is presented later in this
chapter).
After a hazardous waste site is identified, EPA or a state initiates an investi-
gation to identify PRPs associated with the site. On the basis of this
preliminary PRP search, EPA (in coordination with the state) may make an
initial determination of how cleanup of the release will be managed and
who will initiate enforcement actions under CERCLA. The decision to
classify a site as a state enforcement-lead response is based on the site
history, strength of legal evidence, and die national significance of die site.
The relationship of states to the budgetary planning process is graphically
presented in Exhibit 14-1. The relationship begins when the regional
office, together with the state, determines activity and event targets for
SCAP. These targets are reviewed by EPA Headquarters through CERCLIS
3/WasteLAN and are used to revise SCAP and to determine the case
budget.
The CERCLIS 3/WasteLAN system uses a series of activity and event codes
to designate the lead agency. A discussion of these codes follows.
-------
14-1 Relationship of States to Budgetary Planning Process
14-17
State and
region interact
to determine
budget targets,
activity targets,
and event lead
designation
through the
SCAP process
Enforcement Remedial
Activities Events
SEorFE S,TR,SN,SR,PS
I I I
SCAP
SCAP
Case
Budget
$
Data from
regions
entered into
CERCLIS3/
WasteLAN
system
Headquarters
and regional
review of data
in CERCLIS3/
WasteLAN
Headquarters
determines
funding level
in case
budget
(including
funds for
cooperative
agreements)
-------
14—18 State Involvement in CERCLA Enforcement
14.3.B.1
14.3.B.2
Activity A lead code must be placed in CERCLIS 3/WasteLAN for all events and
Leads activities. For RI/FS, RD, RA, Operation and Maintenance, and enforce-
ment activities, the lead codes identify the entity performing the work.
There are several possible enforcement activity leads the state may assume at
a site.
SCAP defines the following codes to designate enforcement activity leads:
• SE - SE stands for state enforcement. This code is used to designate
enforcement activities initiated by a state using its own enforcement
authorities to clean up sites. Fund dollars are used to pay or partially
pay for the enforcement and response activities at state enforcement
lead sites through CAs. SE could therefore be used for RI/FS and
RD/RA negotiations.
• FE - FE stands for federal enforcement site, where Fund money is
being used to pay for the enforcement activities.
Event Event types are codes for a specific response, a non-response, or a support
Leads event within die pre-remedial, remedial, removal, and community involve-
ment components of die Superfund program.
States or tribes have a role in die following event codes:
• S - S stands for state-lead site where events are paid with Fund
dollars.
• TR - TR stands for tribal-lead site where events are paid with Fund
dollars.
• SN - SN is used to designate state-funded events where no Fund
expenditures are involved. Site events are undertaken solely by the
state and paid for by state authorities. SN applies to response events
(RI/FS, RD, RA, removal).
• SR - SR stands for state enforcement/responsible party financed and
is used to designate events where the state has an administrative or
judicial order requiring the PRPs to do the response work. There is
no federal concurrence on the remedy, and no state/EPA agreements
or CAs covering the site.
• PS - PS is used for a PRP response under a state order, when Fund
money is supporting CAs with states conducting state-lead oversight;
or for sites not receiving Fund money that receive EPA oversight
through SMOAs, state/EPA agreements or CAs.
Reference
OSWER Directive 9200.3-14-ID, SuperfuneL'OilProgram Implementation
Manual (updated biennially).
SCAP/OIL Quick Reference Coding Guide.
-------
14-19
14.4
14.4. A Forum
Shopping
by PRPs
14.4.B Overseeing
State
Oversight
of PRPs
14.4.C SCAP
Targets
14.4.D Standard
Planning
Time Line
14.4.E SMOA
Development
14.4.F
State
Challenges
to RD/RA
Consent
Decrees
Potential Problems/Resolutions
This section discusses specific issues RPMs may confront during state
enforcement activities and suggests methods for resolving these issues.
This situation occurs when PRPs negotiate separately with state and federal
authorities to identify their best deal. The PR? is unable to get liability
releases from federal and state authorities unless a joint decree is signed
(however, a joint decree doesn't guarantee releases; releases must be negoti-
ated as part of the settlement). Moreover, PRPs should be interested in the
process of deletion from the NPL. EPA can delete a site from the NPL only
if the site meets standards set forth in the NCP, not if it meets only a state's
requirements. Therefore, RPMs need to make it clear to PRPs that it is in
their best interests to work with both EPA and die state in developing a
setdement.
To avoid delays in the project because of poor quality work, a vigorous
oversight effort is necessary. The RPM must make sure the state is aggres-
sive in its oversight efforts and should work closely with state officials to
make sure the work conducted is of acceptable quality. For example, the
RI/FS must be of sufficient quality to support the ROD.
When states delay discussions with the regions concerning dieir SCAP
targets, it is difficult to monitor progress. It is imperative that states be
viewed as partners with the region. With a state-lead project, EPA should
work closely with the state to identify start and close dates for activities
listed on the SCAP so diat target figures will be accurate.
If regions do not complete their schedule dirough die RA phase, their
budget could be short-changed. For planning SCAP budget projections,
the RPMs should use the Standard Planning Time Line or Regional Time
Line until better planning information becomes available for projecting stari
and completion dates for events. These dates are critical for budget
projections and influence budget estimates for upcoming years.
When the state wishes to negotiate a SMOA, EPA must do so. However,
EPA may not require diat die state draft a SMOA. In general, regions and
states should work to encourage development of SMOAs.
Pursuant to CERCLA section 121(f)(2)(B), states can challenge ARARs in
CDs. These challenges can be a major source of delay. RPMs should
establish and maintain contact with the state throughout die process to
avoid delays.
-------
15. Records
Management
-------
15-i
Chapter 15 Records Management
15.1 Description of Activity 1
15.2 Procedures and Interactions 2
15.2.A Site Files 2
15.2.A.1 Remedial Site Files 2
15.2.A.1.1 File Content and Structure 2
15.2.A.1.2 Collection of Field Data 2
15.2.A.1.3 File Management Process 2
15.2.A.2 Removal Site Files 5
15.2.A.2.1 File Content and Structure 5
15.2.A.2.2 Collection of Field Data 5
15.2.A.2.3 File Management Process 5
15.2.B Administrative Record Files 5
15.2.B.1 File Content and Structure 7
15.2.B.2 EPA Roles 7
15.2.B.3 Involvement of Other Parties 10
15.2.B.4 Community Involvement 11
15.2.B.4.1 Remedial Actions 13
15.2.B.4.2 Removal Actions 13
15.2.B.5 Excluded and Privileged Information 14
15.2.B.6 Post-Decision Information 14
15.2.B.7 Certification 15
15.2.B.8 Models 15
15.2.C Cost Documentation File 16
15.2.C.1 File Content and Structure 16
15.2.C.2 File Management Process 17
15.2.D Storage and Maintenance of the Records 17
15.2.D.1 Superfund Document Management System 17
15.2.D.2 File Maintenance 19
15.2.D.2.1 Disposition of Inactive Records '. 19
15.2.D.2.2 Vital Records 19
15.3 Planning and Reporting Requirements 20
15.3.A Setting Priorities 20
15.3.B Planning 20
15.3.C Budget 20
15.4 Potential Problems/Resolutions 21
15.4.A Space 21
15.4.B Transporting the Record to the Site 21
15.4.C Regional Counsel and RPM Involvement 21
-------
15—ii Records Management
-------
15-1
Chapter 15 Records Management
15.1 Description of Activity
Records Management is critical to the success of the Superfund enforcement
program. Due to the involvement of numerous federal and state agencies,
contractors, Remedial Project Managers (RPMs), On-Scene Coordinators
(OSCs), and Potentially Responsible Parties (PRPs) at a site over a poten-
tially extended time period, good file organization is necessary to document
site activities. Within Superfund, there are three primary areas of file
management: the site file, the Administrative Record (AR) file, and the cost
documentation file.
The site file contains all acquired site-specific information.
The AR file is a subset of the site file. As mandated by section 113(k) of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), the AR contains all the documents that form the basis for die
decision to select a CERCLA response action and acts as a vehicle for public
participation in the selection of the response action. Proper compilation
and maintenance of the AR file is crucial because, under section 113(j) of
CERCLA, judicial review of issues concerning the adequacy of any response
action is limited to the information contained in the AR. Note diat diere
may be other ARs to support other decisions taken by the Agency (e.g., a
deletion AR). The documents that should be included in AR files support-
ing odier decisions are identified in guidances addressing those decisions.
The'cost documentation file consists of Headquarters and regional docu-
mentation of expenditures diat is required in order to recover Fund expen-
ditures under section 107 of CERCLA.
-------
15—2 Records Management
15.2
15.2.A
Site
Files
15.2.A.1
15.2.A.1.1
Remedial
Site Files
File
Content and
Structure
15.2. A. 1.2 Collection
of Field Data
15.2. A. 1.3 File
Management
Process
Procedures and Interactions
The site file consists of all information generated or received for a site.
There are two kinds of site files:
• Remedial site files - Consist of all acquired information for a
Remedial Action (RA).
• Removal site files - Consist of all acquired information for a
removal action.
This section discusses aspects of both kinds of site files, including their
content and structure, the collection of field data, and file management
responsibilities. Note that die removal site file and remedial site file may be
merged at a site where both removal and remedial actions take place.
There is no one way to organize files. This chapter gives recommendations
and refers to model file structures that are available. Regions may want to
add their own file structure to diis handbook.
The RPM is responsible for developing and maintaining accurate and
complete files of die activities pertaining to the site.
The remedial site file should contain all documents acquired during die
remedial response. The document inventory and filing system may be based
on serial identification numbered documents or other coding systems. These
systems may be manual or automated. A suggested file structure widi
sample contents is illustrated in Exhibit 15-1.
Site-specific data quality objectives will govern the data management
methods used, and the site's Quality Assurance Project Plan/Field Sampling
Plan will identify both field and analytic data to be acquired and the
standard operating procedures to be used. A data security system must be
implemented to safeguard die chain of custody records and document
control for field data. More specific guidance is available in "Data Quality
Objectives for Remedial Response Activities."
The RPM should complete the appropriate forms and reports and file diem
according to die regional file structure. Files should be distributed to the
regional office from the site regularly, and as soon as possible, to assess dieir
applicability to response selection, to determine if die documents should be
copied and/or stored in die region, and to submit financial documents for
processing. Documents that are selected to be pan of the AR should be
copied from die site file and maintained in a separate AR file. CERCLA
requires that the AR file be available to die public at or near die facility at
issue. The site file, however, is generally not available for public review
because it contains draft documentation and privileged materials. Docu-
ments in the site file are subject to disclosure in response to Freedom of
Information Act (FOIA) requests unless die documents fall within a FOIA
exemption. Privileged documents should be clearly marked prior to filing
to facilitate responding to document requests later.
-------
15-1 Model Remedial File Structure
15-3
Congressional
Inquiries
Transcripts
Testimony
Published Hearing Records
Preliminary
Investigation
Documents
Initial Investigation
Preliminary Assessment
Site Inspection
Hazard Ranking System
Scoring Package
Remedial Planning
Documents
Work Plans for RI/FS
RI/FS Reports
Health and Safety Plan
QA/QC Plan
Record of Decision (ROD) and ROD
Responsiveness Summary
Remedial
Implementation
Documents
Remedial Design Reports
Permits
Contractor Work Plans
Progress Reports
US Army Corps of Engineers (USAGE)
Agreements, Reports
State
Coordination
Documents
Cooperative Agreement
Superfund Memorandum of
Agreement (SMOA)
State Quarterly Report
Status of State Assurances
Interagency Agreements (lAGs)
Community
Involvement
Documents
Interviews
Community Involvement Plan
Meeting Summaries
Transcripts
Responsiveness Summary
Correspondence
Media Reports
^•^v^v^.JJ^Jr^^^J
-------
15-4 Records Management
15-1 (cent.)
Model Remedial File Structure
Imagery
Remedial
Enforcement
Planning
Status Reports
Administrative Orders
Cross Reference to Confidential
Enforcement Files
Notice Letters
104(e) Letters
Remedial
Enforcement
Implementation
Consent Decrees
RD/RA Status Reports
Cross Reference to Confidential
Enforcement Files
Contracts
Site-Specific Contracts
Procurement Packages
Contract Status
Notifications
List of Contractors
Financial
Documents
Cross Reference to Other
Financial Files
Contractor Cost Report
Audit Reports
Enforcement Support Services (ESS)
Reports
Technical Assistance Team (TAT)
Reports
-------
15-5
15.2.A.2 Removal
Site Files
15.2.A.2.1 File
Content and
Structure
15.2.A.2.2 Collection
of Field Data
15.2.A.2.3 File
Management
Process
15.2.B Administrative
Record Files
Removal site file management has typically been the responsibility of the
OSC, with assistance from other EPA regional staff, contractors, and the
U.S. Coast Guard Strike Team. Each region should clearly assign responsi-
bility for each of the file management functions.
Removal site files include documentation of all aspects of the removal:
operational, legal, financial, community involvement, and technical. Each
region should have a site file structure that can be used consistendy at each
site. All file structures used by the regions should include the same mini-
mum set of information. See Exhibit 15-2 for an example of a model file
structure and component documents.
Data-gadiering activities based on site work plans or field sampling plans,
are documented daily in die field logs. Guidance for quality assurance of
field samples may be contained in the quality assurance/quality control
project plans for the removal site. A data security system should be imple-
mented to safeguard chain of custody records and document control
procedures for field data.
Similar to RPM responsibilities for die remedial site file, the OSC should
complete die appropriate forms and reports (such as action memoranda,
work reports, and time sheets) in a timely fashion and file them according
to the regional file structure. Files should be distributed to die regional
office from the site regularly, and as quickly as possible, to assess their
applicability to the response selection, to determine if the documents should
be copied and/or stored in the region, and to submit financial documents
for processing. Documents diat are part of die AR should be copied from
die site file and maintained in a separate AR file. The site file, unlike the
AR file, need not be available for public review, but is subject to FOIA. The
following section offers guidance on documents to be included in the AR.
Reference
Office of Solid Waste and Emergency Response (OSWER) Directive
9355.07B, "Data Quality Objectives for Remedial Response Activities"
(March 1987).
The AR contains the documents that form die basis for the selection of
CERCLA response actions. Section 113(k)(l) of CERCLA requires diat the
Agency establish ARs for the selection of CERCLA response actions.
Section 113(k)(2) of CERCLA requires diat the public have the opportu-
nity to participate in die development of die AR. This section discusses the
major requirements for die AR with regard to content and non-EPA
involvement, and some specific requirements for different types of Super-
fund actions. Although die terms "AR file" and "AR" often are used
interchangeably, die "AR file" refers to die collection of documents diat
have been selected from the site file for inclusion in die AR before a deci-
sion document is signed. After the decision document is signed, die AR file
becomes die "AR." Detailed information on compiling the AR file for
selection of response actions is contained in die 1990 AR guidance.
-------
15—6 Records Management
15-2 Model Removals File Structure
Operational
Matters
Documents
Pollution Reports
Action Memoranda
Action Memorandum Amendments
Site Safety Plans
Work plans
Progress Reports
Legal
Documents
Access Agreements
Financial
Documents
Daily Work Reports
Delivery Orders
1900-55S
Travel Vouchers
Time Sheets
Contract Invoices
Personnel/Equipment
Logs
Community
Involvement
Documents
Records of Communication
Community Involvement Plan
Correspondence
Media Articles:
Technical
Documents
Sampling and
Analysis Data
Investigations
Waste Profiles
Maps and
j Photographs
-------
15-7
15.2.B.1
File
Content and
Structure
15.2.B.2
EPA Roles
References
National Oil and Hazardous Substance Pollution Contingency Plan (NCP),
40 Code of Federal Regulations (CFR) section 300.800 ("Establishment of
an administrative record") (1990).
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records
for Selection of CERCLA Response Actions" (December 3, 1990).
The record should consist of the documents considered or relied upon in
the selection of a CERCLA response action, regardless of whether the
documents support or oppose the Agency's selected action. Voluminous
documents may be referenced in the AR file and made available to the
public upon request. Documents in the AR file should include relevant
writings, graphs, charts, photographs, and data compilations, but die file
should not include physical samples. Documents should be compiled as
they are generated or received and made available at or near the site when
the Remedial Investigation (RI) is begun. See Exhibit 15-3 for a sample file
structure and list of documents that, if considered or relied upon for the
selection of response at a site, must be included in the AR file. The list is
not exhaustive. The record file should contain any information on which
the response action was based. Documents generated or received for a site,
but not relevant to the response selection process, should not be included in
the AR file.
Reference
NCP, 40 CFR section 300.810 ("Contents of the administrative record
file") (1990).
The OSC, RPM, enforcement staff, regional counsel, Community Involve-
ment Coordinator (CIC), contractors, and the AR coordinator are all
involved in establishing AR files. The AR coordinator has the duty of
ensuring adequate compilation and maintenance of die record files but is
not responsible for deciding which documents to include in die files. Those
decisions should be made by die OSC or RPM in consultation with re-
gional counsel. Exhibit 15-4 identifies recommended roles for AR develop-
ment.
When diere is a question about including certain documents in the AR file,
such documents can be segregated and reviewed by the RPM and die
regional counsel at 3- or 4-mondi intervals (diis should be done more often
for removals). At critical times, such as prior to die public comment period,
the issues regarding these documents should be resolved and, if appropriate,
the documents included in die record file.
Each separate response action at a site (remedial action operable unit,
interim action, or removal action) should be supported by an AR file.
Guidance does allow information relevant to one response decision to be
referenced in AR files for odier/subsequent response decisions. The record
file must be available to die public at or near die facility at issue. Public
-------
15—8 Records Management
15-3 Model Administrative Record File Structure
Site
Identification
Background
Site Inspection
Preliminary Assessment
Site Investigation
Previous Operable Unit Information
Removal
Response
Sampling & Analysis Plan
Data (possibly located elsewhere but
incorporated by referenceVChain of
Custody Forms
Engineering Evaluation/Cost Analysis
(EE/CA) Approval Memorandum
(for non-time-critical actions)
EE/CA
Action Memorandum & Amendments
Remedial
Investigation
Sampling & Analysis Plan
Data (possibly located elsewhere but
incorporated by referencel/Chain
of Custody Forms
Work Plan
Rl Reports
Feasibility
Study (FS)
Applicable or Relevant and Appropriate
Requirements (ARAR) Determinations
FS Reports
Proposed Plan
Supplements and Revisions to the
Proposed Plan
Record of
Decision (ROD)
ROD
Amendments to the ROD
Explanations of Significant
Differences
State
Coordination
C
Cooperative Agreements/
SMOAs
State Certification
ofARARs
-------
15-9
15-3 (cont.) Model Administrative Record File Structure
Enforcement
Documents
Enforcement History
Endangerment Assessments/Risk
Assessments
Administrative Orders
Consent Decrees
Affidavits
Documentation of Technical Discussions
with PR Ps
Notice Letters and Responses
Health
Assessments
ATSDR Health Assessments
Natural
Resource
Trustees
Notices Issued
Findings of Fact
Reports
Community
Involvement
Comments/Responses
Community Involvement Plan
Public Notices
Public Meeting Transcripts
Fact Sheets & Press Releases
Responsiveness Summary
Late Comments
Technical Sources/
Guidance
Documents
EPA HQ Guidance
EPA Regional Guidance
State Guidance
Technical Sources
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15—10 Records Management
participation in the process is discussed later in this chapter and in more
detail in Chapter 13, Community Involvement.
15-4 Recommended Roles for Administrative Record
Development
Tasks
Develop compilation
schedule & procedures
Develop maintenance
and update procedures
Coordinate efforts to
obtain necessary
documents
Technical/legal review
of documents & index
Screen privileged
documents
Check adequacy &
completeness of AR
Organize & photocopy
documents
Make site repository
arrangements
Issue public notices
RPM/
OSC
X
X
X
X
X
RC
X
X
X
X
ARC
X
X
X
X
X
CIC
X
X
X
Contractor
X
X
15.2.B.3
Involvement
of Other
Parties
The AR file for a federal-lead site should reflect any state or tribal involve-
ment in the selection of a response action (the following discussion of state
involvement also applies to tribes). For guidance on documentation of state
involvement in die response selection, see die "Final Guidance on ARs for
Selection of CERCLA Response Actions."
Where a state has been officially designated as die lead agency, die state
must compile and maintain die AR file in accordance widi the NCP (see 40
CFR sections 300.800-825). The state must transmit copies of key docu-
ments to the EPA regional office. At a minimum, die state as lead agency
must transmit a copy of the index, the Remedial Investigation/Feasibility
Study (RI/FS) work plan, die RI/FS released for public comment, die
proposed plan, and any public comments received on die RI/FS and the
proposed plan. For purposes of oversight, the state should also send a copy
of any risk assessment, final draft RI, and final draft FS to die appropriate
EPA regional office. Agreements pertaining to die state's roles and responsi-
bilities regarding die AR should be incorporated into die Superfund Memo-
randum of Agreement (SMOA) or cooperative agreement. The record file
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15-11
compiled by the state should reflect EPA's participation, comments, concur-
rence, and any disagreements at the same stages as are required for state
involvement in a federal-lead site.
For federal facilities, the lead agency has responsibility for compiling an AR
file in accordance with the NCP (see 40 CFR sections 300.800-825). At
NPL sites and any other site where EPA is involved in selecting a response
action at a federal facility, the federal agency should transmit key documents
to the EPA regional office. At a minimum, the federal agency must trans-
mit a copy of the index, the RI/FS work plan, the RI/FS released for public
comment, the proposed plan, and any public comments received on the RI/
FS and proposed plan. For purposes of oversight, the federal agency also
should send a copy of any risk assessment, final draft RI, and final draft FS
to EPA. Interagency Agreements (lAGs) should spell out procedures for
compiling and maintaining the record file.
Executive Order 13016 (August 28, 1996) delegated authority to issue
CERCLA section 106 orders to a number of federal departments that act as
federal resource managers, including the Departments of Interior, Com-
merce, Agriculture, Defense, and Energy. Where federal agencies other than
EPA issue a CERCLA section 106 order to PRPs, the agency issuing the
order is responsible for creating and maintaining the AR supporting that
action.
References
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records
for Selection of CERCLA Response Actions" (December 3, 1990).
NCP, 40 CFR part 300, subpart I ("Administrative Record for Selection of
Response Action") (1990).
15.2.B.4 Community Sections 300.815 and 300.820 of the NCP specify that the ARshall be
Involvement made available to the public. In satisfying this provision, the Agency must
comply with all relevant public participation procedures outlined in the
NCP (see also Community Relations in Superfund: A Handbook and "Com-
munity Relations During Enforcement Activities and Development of the
Administrative Record").
In general, the AR should document any opportunity for public involve-
ment in the selection of a response action. All documents related to the
opportunity for public involvement (e.g., notices and fact sheets) and
relevant written comments received from the public should be included in
the AR file to establish a complete record for purposes of judicial review.
The AR also should document the award of technical assistance grants to
community groups for use in hiring a technical advisor to help the commu-
nity understand technical information related to the site and participate
more effectively in the Superfund process. Information about the establish-
ment of a community advisory group and its participation in the Superfund
process should also be documented in the AR. Any involvement of the
Superfund regional ombudsman in facilitating the participation of commu-
nity stakeholders should also be documented.
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15—12 Records Management
The AR file should contain relevant information brought to the Agency's
attention by the public, including reports, data, and other information
generated by outside parties and submitted to the Agency.
The Agency should request that substantive verbal comments (either in
person or over the phone) be put in writing by the commentor for inclusion
in the record file. The commentor should be advised that the obligation to
supply the comment in writing rests with the commentor. The Agency may
choose to record verbal comments on which it will want to rely.
The Agency may respond to comments received prior to a public comment
period in various ways, depending on die nature and relevance of a particu-
lar comment. The Agency's consideration of such a comment may be in the
form of a written response, or reflected by documented actions taken after
receiving the comment, or even by changes in subsequent versions of
documents. If the Agency responds to a comment, the response should be
included in the record file.
The Agency may notify commentors that comments submitted prior to a
formal public comment period must be resubmitted or specifically identified
during the public comment period in order to receive formal response by the
Agency. Alternatively, the Agency may notify a commentor that the Agency
will respond to the comment in a responsiveness summary prepared at a
later date.
Significant comments received during a formal public comment period must
be addressed in a responsiveness summary (included with die ROD in
remedial response actions). The responses may be combined by subject or
other category in die AR file. It should be noted that one response can be
prepared to multiple comments of the same nature in order to be most
efficient. Comments should be included in the record file in their original
form whenever feasible. For further information, consult the "Interim Final
Guidance on Preparing Superfund Decision Documents."
In all cases, the Agency should publish a notice of availability of die AR file
when the AR file first is made available for public inspection in the vicinity
of the site. The notice should explain the purpose of the AR file, its location
and availability, and how die public may participate in its development. The
notice should be published in a major local newspaper of general circulation
in the area of die site at issue and distributed to persons on the community
involvement mailing list. This notice should also be sent to all known PRPs
if diey are not already included on the community involvement mailing list.
The availability of the AR file will vary depending upon the nature of die
response action. Different procedures are oudined below for remedial and
removal response actions.
References
Community Relations in Superfund: A Handbook, EPA 540-R-92-009.
NCP, 40 CFR section 300.815 ("Administrative record file for a remedial
action") (1990).
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15-13
NCP, 40 CFR section 300.820 ("Administrative record file for a removal
action") (1990).
OSWER Directive 9355-3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989).
OSWER Directive 9836.0-1 A, "Community Relations During Enforce-
ment Activities," (November3, 1988).
15.2.B.4.1 Remedial Section 300.815 of the NCP requires that the public be provided the
Actions opportunity to review and comment on the AR file for remedial actions.
The AR file for a remedial action must be established at the regional office
and made available for public inspection at a location at or near the site
when the remedial investigation begins.
Reference
NCP, 40 CFR section 300.815 ("Administrative record file for a remedial
action") (1990).
15.2.B.4.2 Removal Section 300.820 of the NCP requires that the public be provided the
Actions opportunity to review and comment on the AR file for removal actions.
These requirements are also discussed in Chapter 2, Removals.
Emergency removal actions initiated within hours and lasting less than
30 days
The AR file must be made available to the public no later than 60 days after
initiation of removal activity at the site. The AR file must be maintained in
the regional office, but need not be made available at or near the site.
Public comment on the AR file should be held when appropriate.
Other time-critical removals, including emergency removals lasting more
than 30 days
The AR file must be made available to the public no later than 60 days after
the initiation of removal activity at the site. The AR file must be established
at the regional office and made available for public inspection at or near the
site. Public comment on the AR file should be held when appropriate. In
general, a public comment period will be considered appropriate if cleanup
activity has not been completed at the time the AR file is made available to
the public and if public comments might have an impact on future action at
the site. A responsiveness summary on the significant comments received
must be prepared and included in the AR file following the public comment
period.
Non-Time-Critical removals
The AR file must be available for public inspection when the engineering
evaluation/cost analysis is made available for public comment. The AR file
must be available at a central regional location and at or near the site. A
public comment period of at least 30 days must be initiated. The notice of
public comment period may be combined with the notice of availability of
the record file if they occur at the same time. The Agency must respond to
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15—14 Records Management
15.2.B.5
Excluded
and
Privileged
Information
15.2.B.6
Post-
Decision
Information
all significant comments received during the public comment period and
place the comments and the responses to them in the record file.
References
NCP, 40 CFR section 300.805 ("Location of the administrative record file")
(1990).
NCP, 40 CFR section 300.820 ("Administrative record file for a removal
action") (1990).
Documents should be excluded from the AR if diey contain information
that is not considered or relied upon during the Agency's selection of a
response action. Examples of such documents may include contractor work
assignments and cost documentation information. Information relevant to
the selection of the response action that is generated or received after a
decision document is signed should be kept in a post-decision file and may
be added to the record file in certain limited situations.
Some documents in the AR file may be protected from public disclosure on
the basis of an applicable privilege or FOIA exemption. The RPM/OSC
and regional counsel share responsibility for deciding which documents are
not subject to disclosure. Any such protected documents that were consid-
ered or relied on to make the response action decision must be placed in a
confidential portion of the record file. A short description of die informa-
tion in each document in the confidential file should be inserted in the
portion of die record file available to the public and included in die index.
Types of privilege include die attorney-client privilege, die attorney work-
product privilege, and die deliberative process privilege. Courts have
interpreted FOIA exemption 5 as encompassing these traditional eviden-
tiary privileges. Furdier information protected under FOIA includes trade
secrets and commercial or financial information (exemption 4); personal
information such as personnel or medical files (exemption 6); and certain
investigatory records compiled for law enforcement purposes (exemption 7).
In situations involving attorney-client privilege and deliberative process
privilege, regional counsel should be consulted for proper procedure.
After a decision document is signed, information generated or received by
the Agency should be placed in a post-decision document file, which is
separate from die AR file. Post-decision documents may be added to the
AR file in limited situations:
• If the decision document does not address (or if it reserves) a signifi-
cant aspect of the response action decision to be made at a later date.
In such cases, die Agency should continue to add documents to the
AR file that form die basis for die unaddressed portion of die
decision.
• If there is a significant change in die remedy selected in the decision
document. These changes may be addressed in an explanation of
significant differences.
-------
15-15
15.2.B.7 Certification
15.2.B.8
• If the Agency receives information that causes it to fundamentally
alter the basis of the overall response action. Such changes will
require an amended decision document.
• If the submitted documents contain significant information, not
contained elsewhere in the AR file, that could not have been submit-
ted during the public comment period and substantially support the
need to significantly alter the response action.
Post-decision information may also be added to the AR file if the Agency
holds public comment periods after the selection of the response action.
The Agency may hold additional public comment periods or extend the
time for submission of public comment on any issue concerning response
selection. All significant comments submitted during such comment
periods, along with any public notices of the comment period, transcripts of
public meetings, and Agency responses to the comments, should be placed
in the AR file.
References
NCP, 40 CFR section 300.825 ("Record requirements after the decision
document is signed") (1990).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing
Superfund Decision Documents" (October 1989) (Chapter 8, "Post-ROD
Significant Changes").
When a selected remedy becomes the subject of litigation and the record is
filed in court, the Agency must certify that the AR is complete. Such
certification should be signed by the regional administrator's designee after
consultation with regional counsel. Any certification of the record should
be made by program staff, and not legal staff.
In addition, the region may choose to have the AR coordinator certify that
the record was compiled and maintained in accordance with applicable
Agency regulations and guidance, although this second certification is not
required.
Models Models of the AR file structure, index, certification, and notice of public
availability are available as guidance for their preparation.
References
Draft Model Regional Records Management Operating Procedures Manual,
EPA/IMSD-91-020.
OSWER Directive 9360.2-01, "Model Program for Removal Site File
Management" (July 1988).
Region 1 Guidance, "Region 1 Records Center Operations Manual."
Region 9 Site File Guidance, "Reference Manual for Superfund Staff."
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15—16 Records Management
15.2.C COSt Cost documentation is a cooperative effort among the RPM, OSC, other
Documentation Case Team members, regional Financial Management Office (FMO),
_.. Headquarters' Financial Management Office (HQ-FMO), Office of Site
Remediation Enforcement, and Department of Justice.
For the Agency to litigate successful cost recovery actions under section 107
of CERCLA, proper documentation is essential. The Agency bears the
burden of proving three elements for cost recovery:
• Proof of release or threat of release of a hazardous substance from a
facility that caused die Agency to incur response costs.
• Proof of liability of die responsible party.
• Proof of expenditures (work performance).
To meet this burden, the Agency must meet die usual civil standard of
proving all elements by a preponderance of die evidence.
Regions should consider cost documentation an on-going process. Docu-
ments should be compiled and organized as soon as die pertinent informa-
tion becomes available.
15.2.C.1 File The cost documentation file should include documents showing both die
Content and work performed and die costs associated widi diat work. Work performed
Structure documents prove that the response activities were bodi authorized and
completed. The cost documentation file should include the following
categories of work performed documents:
• Documents authorizing the performance of work and defining die
scope of that work, including action memoranda, work plans, work
assignments, and Technical Directive Documents (TDDs).
• Documents audiorizing changes in the scope or cost of work done at
a site, including work plan revisions and contract modifications.
• Documents providing evidence of the performance or completion of
work at die site, including Form 1955s (for removals), monthly
technical and financial status reports for Remedial Engineering
Management contracts, and TDD or work assignment completion
forms.
• State Cooperative Agreements (CAs) or Superfund state contracts.
• Interagency Agreements (LAGs).
The cost documentation file should include documents reflecting the
following categories of costs:
• Site-specific payroll costs (Headquarters and region).
• Site-specific travel expenditures (Headquarters and region).
• Site-specific CA costs.
• Non-site-specific CA costs.
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15-17
15.2.C.2
File
Management
Process
15.2.D Storage
and
Maintenance
of the
Records
15.2.D.1
Superfund
Document
Management
System
• Site-specific indirect costs.
• Site-specific Field Investigation Team costs.
• Site-specific Technical Assistance Team costs.
• Site-specific Enforcement Support Services (ESS) costs.
• Site-specific Emergency Response Cleanup Services costs.
• Site-specific Contract Laboratory Program costs.
• Site-specific Remedial Engineering Management costs.
• Site-specific Environmental Services Assistance Team costs.
• Site-specific Alternative Remedial Contract Strategy (ARCS) costs.
• Site-specific Emergency Response Unit costs.
• Site-specific National Enforcement Investigation Center costs.
• Site-specific Environmental Photographic Interpretation Center
costs.
• Technical Assistance Grant costs.
• LAG costs.
• Miscellaneous costs related to Agency response activity.
References
OSWER Directive 9832.0-1 A, 'Procedures for Documenting Costs for
CERCLA section 107 Actions "(January 30, 1985).
OSWER Directive 9832.1, "Cost Recovery Actions Under die Comprehen-
sive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA)" (August 1983).
The cost recovery coordinator, in coordination widi die regional FMO,
coordinates the collection, assembly, and summary of regional cost docu-
ments. It is die RPM/OSC's responsibility to ensure diat the cost recovery
coordinator gets all documents related to contractor work on-site.
For more information on documenting costs and activities, see Chapter 12,
Cost Recovery.
The Superfund records management officer in the region has die responsi-
bility for maintaining and storing die site files and die AR files. In most
regions, diere is an AR coordinator who takes responsibility for diose files.
The responsibilities and diose who handle diem differ from region to
region.
The Superfund Document Management System (SDMS) is an automated
imaging and indexing system designed to meet Superfund site file docu-
mentation and records management needs. SDMS allows regions to
organize site files into an electronic database diat can be stored on optical
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15—18 Records Management
disk or CD-ROM. SDMS helps resolve storage problems created by the
large volume of site files, facilitates the selection of documents for the AR
file, and enhances public access to site documentation.
SDMS allows regions to electronically index site file documents by entering
data for each document into selected fields (e.g., author, addressee, date,
title). Users can then search these fields to locate documents, each of which
can be assigned a unique document number by SDMS. Selected documents
can also be scanned and reproduced by SDMS. Optical character recogni-
tion technology also allows the full text of documents to be stored in SDMS
(in addition to an image of the document). SDMS relates each documents
image to its full text and index entries, allowing searches of scanned docu-
ments by any word in the text, any indexed field, or a combination of text
and field. At the conclusion of a search, the user may display or print out
the image or text of die document.
An "SDMS Core Documents" list has been compiled by an SDMS
workgroup of regional and Office of Solid Waste and Emergency Response
(OSWER) personnel. The 1990 AR guidance, which identified documents
to be included in an AR, provided the foundation for the core documents
list. Consequendy, if the core documents are scanned into SDMS, die
majority of ARs can be pulled togedier in SDMS. Software is now available
that allows regions to create a CD-ROM containing the AR for a site using
the document images stored in SDMS.
Public access to site documents is greatly enhanced by SDMS. SDMS
allows regions to provide the public (and PRPs) with the entire AR for a site
on CD-ROM, greatly reducing both the difficulty of obtaining site docu-
mentation and the region's use of resources to support dissemination of that
documentation to. the public. SDMS also allows for more efficient response
to FOIA requests, as regional or contractor personnel can locate requested
documents using SDMS and then provide a response either by printing out
the relevant document images or by transferring the images to a CD-ROM.
EPA has created a tutorial for public use that instructs the user on how to
access documents on the CD-ROM. Regions may also maintain public
access modules at which the public may use SDMS to obtain site informa-
tion. SDMS includes features that allow die region to restrict public access
to confidential information contained in SDMS.
SDMS questions and concerns are addressed by the SDMS workgroup,
which is headed by Verne McFarland of Region 6 (214-665-6617). The
workgroup is working to resolve technology compatibility issues with die
goal of connecting SDMS to other EPA databases, .including the Compre-
hensive Environmental Response, Compensation, and Liability Information
System 3.
Reference
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records
for Selection of CERCLA Response Actions" (December 3, 1990).
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15-19
15.2.D.2
File
Maintenance
File maintenance includes a file maintenance plan, development of charge-
out procedures, and documentation of file use. For guidance on file
maintenance procedures and efficient filing procedures, refer to the refer-
ences for diis subsection. In addition, many regions have developed regional
records management manuals.
References
OSWER-IM, "Procedures for the Transfer of Contract Laboratory Program
Files for Storage in the Federal Records Center (FRC)" (August 1992).
Draft Model Regional Records Management Operating Procedures Manual,
EPA/IMSD 91-020.
15.2.D.2.1
Disposition
of Inactive
Records
15.2.D.2.2
Vital
Records
Most Superfund records are designated as permanent records and are not
subject to destruction. Inactive records may be transferred to a federal
records center in accordance with EPA records control schedules. For
general guidance on record disposition, refer to the draft regional records
management manual. Guidance on disposition of Agency records is being
developed by OSWER-Information Management (IM) and the Office of
Information Resources Management (OIRM). EPA records control
schedules describing records disposition standards for Superfund site
documentation include:
• Administrative Records - Superfund Site-Specific (EPA Series No.
019R).
• Removal Site Files - Superfund Site-Specific (EPA Series No. 013A).
• Remedial Site Files - Superfund Site-Specific (EPA Series No. 014A).
• Superfund Document Management System (SDMS) (EPA Series
No. 049A).
Reference
Draft Model Regional Records Management Operating Procedures Manual,
EPA/IMSD 91-020.
Vital records are those records deemed crucial to EPA's operation. The vital
records program is designed to protect EPA's vital records in case of disaster
or emergency. OSWER-IM staff at headquarters has established a Super-
fund Document Management Workgroup to address, as one of its tasks, the
issue of which Superfund documents fall into this category of vital records.
For general guidance on policies and procedures, refer to Chapter 4 of
OIRM's Records Management Manual.
Reference
Office of Information Resources Management 2160, Records Management
Manual (1986).
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15—20 Records Management
15.3.B Planning
15.3 Planning and Reporting Requirements
15.3.A Setting Regions should set priorities for the order in which they plan to organize
Priorities s'te ^^es anc^ cornP^e -A-R5 an<^ cost documentation files. Regions should
make a concentrated effort to implement the requirements of the proposed
regulations with regard to removal and remedial ARs and cost documenta-
tion files compilation.
Records management plans for site files, cost documentation files, and AR
files are region-specific and depend on the state of the region's record system
and the methodology employed.
15.3.C Budget Funding for organizing site files is provided from a lump-sum records
management budget managed by the Superfund enforcement support
section. Most regions will have sites which vary in size and complexity and
will have to balance their budgets accordingly.
Funding for AR compilation can be obtained through ARCS, ESS, Super-
fund Technical Assistance and Response Team (START), or 8(a) contracts.
These contracts may be used for AR compilation for RI/FS (Alternative
Remedial Contracting Strategy), removals (START), or PRP oversight
(ESS).
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15-21
15.4
15.4. A
Space
15.4.B Transporting
the Record
to the Site
15.4.0
Regional
Counsel
and
RPM
Involvement
Potential Problems/Resolutions
Lack of space for records storage is a common problem in the regions.
SDMS (discussed in section 2 of this chapter) should make it possible for
regions to send the hard copies of files that have been scanned and indexed
into SDMS to a federal records center. Quality control measures should be
taken to ensure the adequacy of SDMS records before hard copies are sent
to a federal records center.
Some regions have experienced difficulty in identifying locations for the
record at or near the site, contacting the facilities, and transmitting the
records to die site. Regions have found that working closely with their
CICs can be helpful in identifying facilities, and, in some cases, transporting
the records.
Regions have experienced difficulty in obtaining adequate and timely
participation by the regional counsel and RPM/OSC in the AR due to their
heavy workloads. Furthermore, the regional counsel and RPM/OSC
perceptions may vary as to what they believe should be included in the AR
file. Several regions have found training to be helpful and that early joint
involvement by the RPM/OSC and regional counsel in record compilation
can facilitate die process.
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16. Targeting Accomplishments
and Measuring Performance
-------
Chapter 16 Targeting Accomplishments and
Measuring Performance
(Undergoing major revision at the time of this printing.
The final version will be posted on EPA OSRE's Intranet
for downloading when available.)
-------
Glossary
-------
Glossary-i
Enforcement Glossary
The following terms are defined to help the reader understand the discussions in this handbook. Complete and
authoritative definitions are to be found in CERCLA, The National Contingency Plan, Agency Guidance and
Policy and Case Law.
10-point Settlement Analysis: An evaluation of a proposed settlement according to 10 factors prescribed in
EPA's December 5, 1984 "Interim CERCLA Settlement Policy." The analysis is a privileged document
prepared and submitted to the Department of Justice (DOJ) by regional counsel for every settlement
requiring DOJ approval.
Action Memorandum: The primary decision document for a removal action. An action memorandum docu-
ments the need for a removal response, identifies the proposed action, and explains the rationale for the
removal.
Administrative Order on Consent (AOC): A legal document that formalizes an agreement reached between
EPA and one or more Potentially Responsible Parties (PRPs) to address, in whole or in part, the PRPs'
responsibility for a site. An AOC is legally enforceable, but does not have to be approved by a court. AOCs
are commonly used when PRPs agree to conduct a removal or Remedial Investigation/Feasibility Study,
reimburse past costs (where the cost of the response action does not exceed $500,000), or enter a de
minimis settlement. An AOC may not be used for an agreement to conduct a remedial action.
Administrative Record (AR): The body of documents that forms the basis for the selection of a particular
response at a site. For example, the AR for remedy selection includes all documents that were "considered
or relied upon" to select the response action. An AR must be available at or near every site to permit
interested individuals to review the documents and to allow meaningful public participation in the remedy
selection process. This requirement does not apply to other ARs, such as those for deletion.
Administrative Record (AR) File: A file consisting of documents that have been selected for inclusion in the
AR because those documents will be "considered or relied upon" to select a planned response at a site.
When the Decision Document (e.g., a Record of Decision) is signed, the AR file becomes the AR for that
decision. Except in limited circumstances, such as when a Decision Document is amended, documents are
not added to the AR after the Decision Document is signed.
Administrative Reforms: An ongoing EPA review of Superfund program policies and administrative proce-
dures, begun in 1993, and designed to increase the Superfund program's speed, fairness, and efficiency.
Administrative Subpoena: A legal document issued by EPA requiring testimony and, if necessary, the produc-
tion of documents deemed necessary to the administrative investigation of a site. CERCLA section
122(e)(3)(B) authorizes the issuance of administrative subpoenas as "necessary and appropriate" to gather
information to perform a Non-Binding Preliminary Allocation of Responsibility or "for otherwise imple-
menting CERCLA section 122." The Agency may use administrative subpoenas as initial information
gathering tools, but prefers using section 104(e) requests before resorting to them.
Advice of Allowance (AOA): The mechanism used by the Office of the Comptroller to distribute funds to the
regions to carry out the planned obligations identified through the Superfund Comprehensive Accomplish-
ments Plan process.
Alternative Dispute Resolution (ADR): A variety of processes that allows parties to resolve their disputes
without resorting to litigation. ADR employs neutral third parties to aid in the resolution of disputes
through methods that include arbitration, mediation, mini-trials, and fact finding.
-------
Glossary-it Glossary
Arbitrary and Capricious: A term used to characterize a willful and unreasonable decision or action of an
administrative agency or inferior court that is taken without consideration of, or in disregard of, facts or
without determining principle. Under CERCLA section 113(j)(2), a court ruling on a challenge to an
Agency response action decision will apply the "arbitrary and capricious" standard of review. This means
that the court will uphold the Agency's decision unless the challenger can show that it was arbitrary and
capricious.
Arbitration: An Alternative Dispute Resolution technique using a neutral third party to hear stipulated issues
pursuant to procedures specified by die parties. Depending on the agreement of the parties and any legal
constraints against entering into binding arbitration, the decision of the arbitrator may or may not be
binding. EPA does not use binding arbitration.
Carve-Out Order An Administrative Order on Consent under which a Potentially Responsible Party (PRP)
agrees to do a portion of the work required at a site. EPA may then pursue other PRPs to perform or pay
for the remainder of the work.
Cashout: A setdement that requires Potentially Responsible Parties (PRPs) to provide up-front financing for a
portion of a response action instead of performing the work themselves. Mixed-funding and de minimis
settlements are forms of cashout setdement.
CERCLA Section 106(b) Reimbursement Petition: A petition seeking reimbursement by EPA of the reason-
able costs plus interest of performing a response action pursuant to a Unilateral Administrative Order. A
person may be entided to reimbursement if he/she can establish that he/she is not liable for response costs
under CERCLA section 107(a), or that the Agency's selection of response action was arbitrary and capri-
cious or otherwise not in accordance with law.
CERCLIS 3: EPA's Comprehensive Environmental Response, Compensation, and Liability Information
System 3, the national information management system for the Superfund program. CERCLIS 3 invento-
ries and tracks releases, accomplishments, expenditures, and planned actions at potential and actual
Superfund sites.
Cleanup Activities: Actions taken to deal with a release or threatened release of a hazardous substance that
could affect human health or the environment. The term "cleanup" is sometimes used interchangeably
with the terms remedial action, removal action, response action, or corrective action.
Coast Guard Strike Team: A special team established by the U.S. Coast Guard to assist OSCs/RPMs in their
spill preparedness and response duties. A strike team provides trained personnel and specialized equipment
to assist in training for spill response, stabilizing and containing spills, and monitoring or directing the
response actions of responsible parties and/or contractors. There are three strike teams, Atlantic, Gulf, and
Pacific.
Comment Period: Formal period of time provided for the public to review and comment on a proposed EPA
action, rulemaking, or setdement.
Community Involvement: EPA's program to inform and encourage public participation in the Superfund
process and to respond to community concerns and incorporate them into the Agency's decision-making
process.
Community Involvement Coordinator (CIC): Lead-agency staff member who works to inform the public
about and involve the public in the Superfund process and cleanup actions.
Community Involvement Plan (CIP): A document that identifies techniques used by EPA to communicate
effectively with the public during the Superfund cleanup process at a specific site. This plan describes the
site history, nature and history of community involvement, and concerns expressed during community
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Glossary-iii
interviews. In addition, the plan outlines methodologies and timing for continued interaction between the
Agency and the public at the site.
Confidential Business Information (CBI): Privileged information about a business's products, processes,
operations, and activities. Claims that business information is entided to confidential treatment must
comport with the requirements of 40 CFR Part 2.
Consent Decree (CD): A legal document, approved by a judge, diat formalizes an agreement reached between
EPA and one or more Potentially Responsible Parties (PRPs). The CD oudines die terms on which die
PRP(s) will conduct all or pan of a response action, pay for all or part of a response action, pay past costs,
cease or correct actions or processes diat are polluting the environment, or otherwise comply widi regula-
tions where die PRPs' failure to comply caused EPA to initiate regulatory enforcement actions. The CD
describes die actions PRPs will take, is subject to a public comment period prior to its approval by a judge,
and is enforceable as a final judgment by a court.
Contribution: A legal principle that allows a Potentially Responsible Party (PRP) to seek to recover response
costs from anodier PRP. Contribution actions arise under CERCLA because joint and several liability
allows EPA to seek work or recover response costs from fewer dian all die PRPs who are liable for a hazard-
ous substance release. If the Agency setdes widi or wins a case against a sub-group of PRPs, they can seek
recovery of a proportional share of the response costs from odier PRPs who contributed to die release but
did not setde with EPA.
Contribution Protection: Immunity from contribution actions by odier PRPs authorized by CERCLA and
granted by EPA in respect of matters covered in an administrative or judicial settlement diat resolves die
settlor's CERCLA liability.
Cooperative Agreement (CA): Mechanism used by EPA to provide Superfund money to states, political
subdivisions, or Indian tribes to conduct or support die conduct of response activities. Subpart O of the
NCP, 40 CFR Part 35, oudines specific response actions that may be conducted using CA funds.
Core Program Cooperative Agreement: A Cooperative Agreement between EPA and a state or tribe for
funding CERCLA implementation activities diat are not direcdy assignable to specific sites. The Core
Program is intended to develop and maintain die ability of states and tribes to participate in die CERCLA
response program. Core Program funding may be used for a broad range of non-site-specific purposes,
including die development of generic Community Involvement Plans and Quality Assurance Project Plans,
the development of legal authorities and enforcement support associated widi efforts to compel Potentially
Responsible Parties to conduct or pay for studies and/or remediation, and die hiring and training of staff to
manage publicly funded cleanups and oversee PRP-lead cleanups.
Cost Recovery: A process by which the United States seeks to recover money previously expended in perform-
ing any response action from parties liable under CERCLA section 107(a). Recoverable response costs
include bodi direct and indirect costs.
Covenant Not to Sue: A contractual agreement authorized by CERCLA section 122(f) and embodied in a
Consent Decree or Administrative Order on Consent, in which die Agency agrees not to sue setding
Potentially Responsible Parties (PRPs) for matters addressed in die setdement. EPA's covenant not to sue is
given in exchange for die PRPs' agreement to perform die response action or to pay for the cleanup by die
Agency, and does not take effect until PRPs have completed all actions required by die Consent Decree and
Administrative Order on Consent. Under CERCLA, die use of covenants not to sue is discretionary. The
Agency usually agrees to such releases from future liability only if die terms of die covenant include
"reopeners."
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Glossary-iv Glossary
Data Characterization Package: A package of information that must be included with a Notice of Intent for
Partial Deletion, including a Partial Site Deletion Collection Form and a map clearly showing the portion
of the site to be deleted.
Declaratory Judgment: A binding adjudication of the rights and statuses of litigants. The United States may
file a claim seeking declaratory judgment on CERCLA liability for past and future response costs at a site.
If declaratory judgment on liability is granted, the U.S. does not have to prove liability in any future action
with the defendant.
Deletion Docket: Background materials and records that must be placed in the information repository prior to
preparing a Notice of Intent to Delete or Notice of Intent for Partial Deletion.
Demand Letter: A written demand for recovery of costs incurred under CERCLA. The primary purposes of
written demands are to formalize die demand for payment of incurred costs plus future expenditures,
inform potential defendants of the dollar amount of those costs, and establish that interest begins to accrue
on expenditures. A demand letter may be incorporated into die Special Notice Letter.
"De micromis" Settlement: An agreement, eidier administrative or judicial, between EPA and parties that
contributed minuscule amounts of hazardous substances to a site. "De micromis" settlements are entered
into under die de minimis contributor settlement audiority of CERCLA section 122(g), but do not require
any payment from settling parties.
De Minimis Contributor: As defined by CERCLA section 122(g)(l)(A), a Potentially Responsible Party (PRP)
who is determined to be responsible for only a minor portion of die response costs at a facility based on die
volume, toxicity, or odier hazardous effects of die hazardous substances contributed to die facility com-
pared to other hazardous substances at die facility.
De Minimis Landowner: As defined by CERCLA section 122(g)(l)(B), a Potentially Responsible Party who is
a past or present owner of the real property at which a facility is located and who did not conduct or
permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at die
facility, did not contribute to the release or threat of release of a hazardous substance at the facility dirough
any act or omission, and had no actual or constructive knowledge diat die property was used for the
generation, transportation, storage, treatment, or disposal of any hazardous substance at the time of
purchase.
De Minimis Settlement: An agreement, eidier administrative or judicial, authorized by CERCLA section
122(g), between EPA and Potentially Responsible Parties for a minor portion of response costs.
De Novo: Generally, a new hearing. At a de novo hearing, the court hears the case as a court of original and not
appellate jurisdiction. Under CERCLA, for example, a judge may hear a case de novo if die Administrative
Record is found to be incomplete or inaccurate. Such a de novo hearing would allow judicial review diat is
not limited to the Administrative Record. A potential result ofa.de novo trial is the court selecting the
remedy.
Discovery: A pre-trial procedure that enables parties to learn die relevant facts about a case. The Federal Rules
of Evidence provide for extremely broad discovery. The basic tools of discovery are depositions, interroga-
tories, and requests for production of documents. One of the few limitations on die scope of discovery is
diat the material sought must be relevant to die subject matter of die pending suit, or likely to lead to die
production of relevant material.
Easement: A legal right afforded to an entity to make limited use of another's real property. An easement is one
form of institutional control diat may be required at a Superfund site if all the hazardous substances cannot
be removed from die site. Easements may include limiting access or controlling surface activities.
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Glossary-v
Emergency Removal: A removal where the release, or threat of release, requires that on-site cleanup activities
begin within hours of the lead agency's determination that a removal action is appropriate.
Eminent Domain: The power of the government to take private property for public use. Under the U.S.
Constitution, just compensation must be paid to the owners of property so taken.
Enforcement Actions: EPA, state, or local legal actions to obtain compliance with environmental laws, rules,
regulations, or agreements, and/or obtain penalties or criminal sanctions for violations. Enforcement
procedures may vary, depending on the specific requirements of different environmental laws and related
regulatory requirements.
Enforcement Specialist: An EPA job classification for persons with special expertise in the drafting of General
and Special Notice Letters, compilation of cost documentation packages, and preparing for negotiations.
Environmental Appeals Board (EAB): The final EPA decision maker on administrative appeals under all
major environmental statutes diat EPA administers. The Administrator has also delegated to EAB authority
to rule on CERCLA section 106(b) reimbursement petitions.
Explanation of Significant Difference (ESD): A document that explains a significant change to the Record of
Decision made when new information is discovered about a site or difficulties are encountered during the
Remedial Design/Remedial Action phase of cleanup. An ESD is included in the Administrative Record to
inform the public of any significant changes that are being made to the selected remedy.
Extraordinary Circumstances: Situations that justify the deletion of standard reopeners in Consent Decrees.
This release is granted infrequently and in response to unusual conditions related to liability, viability, or
physical circumstances of the site or Remedial Action.
Federal Lien: A lien in favor of the United States authorized by CERCLA section 107(1) that may be imposed
on a facility that is subject to a response action. The lien arises when the Potentially Responsible Party
(PRP) receives written notice of potential liability for response costs under CERCLA, or the Agency
actually incurs response costs at a particular site. The lien becomes enforceable once it has been "per-
fected", which requires notice to the PRP of EPA's intent to perfect the lien, and an opportunity to be
heard. The lien continues until the PRP's liability is fully satisfied or the claim becomes unenforceable by
operation of the Statute of Limitations.
Federal Register. A federal government publication that includes proposed regulations, responses to public
comments on proposed regulations, and final regulations. The Federal Register is published every working
day by the Office of Federal Register, National Archives and Records Administration, Washington, DC
20408. The Federal Register publishes regulations and legal notices issued by federal agencies. These
include presidential proclamations and Executive Orders, federal agency documents required by Congress
to be published, and other federal agency documents of public interest. The Federal Register is available to
the public through public libraries that are Federal Depositories, law libraries, large university libraries, and
through the Internet (1994 - present).
Federally Permitted Release: As defined by CERCLA section 101(10), a release that complies with the terms
of a permit issued under federal law, e.g., the Clean Water Act or Clean Air Act. Under CERCLA section
107(j), the costs of responding to federally permitted releases may not be recovered under CERCLA
authority.
Fiduciary: As defined by CERCLA section 107(n)(5) a person acting for the benefit of another party, such as a
trustee, executor, or custodian. CERCLA section 107(n) limits fiduciary liability.
Final Close-Out Report (FCOR): A report documenting compliance with the statutory requirements of
CERCLA and providing a consolidated record of all remedial activities at all of the site's Operable Units.
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Glossary-vi Glossary
Five-Year Review: A review of a remedial action to assure that human health and the environment are being
protected. CERCLA section 121(c) requires such reviews at least once every five years at each site with a
remedial action that results in hazardous substances remaining at the site.
Force Majeure: A term used to describe circumstances or events that are beyond the control of the parties,
could not be avoided by the exercise of due care, and therefore excuse non- or untimely performance of the
terms of an agreement. Force majeure provisions are included in Administrative Orders on Consent and
Consent Decrees, and stipulate diat the PRPs shall notify EPA of any circumstances or events that may
delay or prevent work.
Full Release: An agreement by EPA to release a Potentially Responsible Party from any further liability for
response costs or work at a site.
Fund: The Hazardous Substance Superfund established by CERCLA to help pay for cleanup of hazardous
waste sites and for legal action against those responsible for the sites. The fund is financed primarily with a
tax on crude oil and specified, commercially used chemicals.
Fund-lead: A designation referring to site activities undertaken by EPA with Fund financing.
General Notice Letter (GNL): A notice to inform Potentially Responsible Parties of their potential liability for
past and future response costs, the possible future use of CERCLA section 122(e) special notice procedures,
and the subsequent moratorium and formal negotiation period.
Generator: As defined by CERCLA section 107(a)(3), any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a transporter for disposal or treatment, of hazardous
substances owned or possessed by such person, by any other party or entity, at any facility or incineration
vessel owned or operated by another party or entity and containing such hazardous substances.
Good Faith Offer (GFO): A written proposal submitted by a PRP to EPA to perform or pay for a response
action. PRPs are given 60 days from the special notice to provide EPA a written GFO. The GFO must be
specific, consistent with the ROD or Proposed Plan, and indicate the PRPs' technical, financial, and
management ability to implement the remedy.
Hazard Ranking System (HRS): The principle screening tool used by EPA to evaluate risks to public health
and the environment associated with abandoned or uncontrolled hazardous waste sites. The HRS calcu-
lates a score based on the potential for hazardous substances spreading from the site through the air, surface
water, or ground water, and on other factors such as nearby population. This score is the primary factor in
deciding if the site should be on the NPL and, if so, what rank it should have compared to other sites on
the list. A site must score 28.5 or higher to be placed on the NPL.
Indemnification: Reimbursement for or security against loss or damage. Administrative Orders on Consent
and Consent Decrees contain indemnification provisions diat protect the United States from claims arising
from the respondents' acts or omissions in carrying out the agreement.
Independent Government Cost Estimate (IGCE): An estimate of the cost of a proposed action developed
independently by the government for use in evaluating contractor-estimated and actual costs to implement
the action.
Indian Tribe: As defined by CERCLA section 101(36), any Indian tribe, band, nation, or other organized
group or community, including any Alaska Native village but not including any Alaska Native regional or
village corporation, which is recognized as eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.
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Glossary-vii
Information Repository: The place where the administrative record, current information, technical reports,
and reference materials regarding a Superfund site are stored. The EPA or the State establishes the reposi-
tory in the community as soon as a site is discovered. It provides the public with easily-accessible informa-
tion. Repositories are established for all sites where cleanup activities are expected to last more than 45
days. Typical community repository locations include public libraries or municipal offices.
Information Request Letter Formal written request for information authorized by CERCLA sections
104(e)(2)(A) through (C), issued during an administrative investigation.
Innocent Landowner: A person who purchased or acquired real property without actual or constructive
knowledge that die property was used for die generation, transportation, storage, treatment, or disposal of
any hazardous substances.
Institutional Controls: Actions taken to limit future access to or use of a site, including deed restrictions, that
are implemented to minimize human exposure to hazardous substances remaining on site and/or impacts
of die Remedial Action.
Joint and Several Liability: Liability of each of several parties to satisfy die whole claim. When two or more
Potentially Responsible Parties (PRPs) are involved at a site and die harm is indivisible, each PRP may be
held individually liable for die cost of die entire response action.
Judicial Review: A court's review of a decision rendered by a federal agency or department, or a court's review
of an appeal challenging a finding of fact or law. Under CERCLA, for example, die court provides judicial
review prior to entry of a Consent Decree. In addition, a federal Court of Appeals will provide judicial
review of an EPA decision upon submission of a petition by a Potentially Responsible Party. The jurisdic-
tion of the court and die scope of its review are defined by CERCLA section 113(h) and die Judicial
Review Act, 28 U.S.C. sections 2341-2351.
Land Ban: Provisions of die 1984 Hazardous and Solid Waste Amendments of RCRA and implementing
regulations at 40 CFR Part 268 that restrict the land disposal of certain hazardous wastes; formally known
as die Land Disposal Restrictions.
Lead Agency: The agency diat provides die RPM or OSC who primarily plans and implements cleanup
actions. This includes EPA, state or political subdivisions, other federal agencies, or Indian tribes. Other
agencies may be extensively involved in the process, but the lead agency directs and facilitates activities
related to a site, often including enforcement actions.
Mediation: An Alternative Dispute Resolution technique using a neutral party widi no decision-making
authority to aid the parties in their negotiations.
Minitrial: An Alternative Dispute Resolution technique using a structured presentation of each party's case to a
panel of party decision makers before a neutral "judicial officer" so as to expedite setdement discussions.
Mixed Funding: Settlements whereby EPA setdes with fewer than all Potentially Responsible Parties for less
than 100 percent of the response costs. The setdement must provide a substantial portion, greater than 50
percent, of the total response costs and there must be viable non-setdors from which remaining response
costs may be pursued. The three types of mixed funding setdements are preauthorization, cashout, and
mixed work.
Mixed Work: A type of mixed funding settlement whereby EPA and the Potentially Responsible Parties (PRPs)
agree to conduct discrete portions of the response action. Often EPA's portion of die work is paid for or
performed by other PRPs pursuant to subsequent setdements or Unilateral Administrative Orders.
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Glossary-viii Glossary
Moratorium: The period of time after Special Notice Letters are issued during which EPA may not undertake
Remedial Investigation/Feasibility Study or Remedial Action work at the site. EPA also will not seek to
compel Potentially Responsible Party action at the site during the moratorium.
National Contingency Plan (NCP): The NCP is the major framework regulation for the federal hazardous
substances response program. The NCP includes procedures and standards for how EPA, other federal
agencies, states, and private parties respond under CERCLA to releases or threats of releases of hazardous
substances, and under section 311 of the Clean Water Act, as amended by the Oil Pollution Act of 1990, to
discharges of oil.
National Priorities List (NPL): The NPL is maintained by EPA and identifies those facilities, sites, or other
releases that EPA has determined warrant further evaluation to determine what CERCLA-financed Reme-
dial Action, if any, may be required to protect human health and the environment.
National Remedy Review Board (NRRB): The NRRB reviews proposed Superfund cleanup decisions that
meet cost-based review criteria to assure they are consistent with Superfund law, regulations, and guidance.
Natural Resource Damages: Damages for injury or loss of natural resources as set forth in CERCLA sections
107(a) and 11 l(b) and 300.615 of the National Contingency Plan.
Natural Resource Trustees: Federal, state, or tribal officials acting on behalf of the public (or a tribe) as
trustees for the management and protection of natural resources as described in Subpart G of die National
Contingency Plan, 40 CFR Part 300.600.
Natural Resources: Land, fish, wildlife, air, water, ground water, drinking water supplies, and other such
resources belonging to, managed by, or controlled by the United States, any state or local government, any
foreign government, any Indian tribe, or any member of an Indian tribe.
Neutral Evaluation: An Alternative Dispute Resolution (ADR) technique using a neutral party to assist a
negotiation team in evaluating die potential for settlement and/or use of ADR professionals.
No Further Response Needed: The EPA decision diat no further remediation is appropriate for a site deter-
mined to meet any of the three criteria identified in the National Contingency Plan section 300.425(e)(l).
Non-Binding Preliminary Allocation of Responsibility (NEAR): An allocation of die total cost of response
among Potentially Responsible Parties (PRPs) at a facility. CERCLA section 122(e)(3) allows EPA to
provide NBARs to PRPs to facilitate settlement. An NBAR is not binding on the United States or the
PRPs and cannot be admitted as evidence in court.
Non-Time-Critical Removal: A removal for which die lead agency, based on a site evaluation, determines diat
there are more dian six months of planning time available before on-site activities must begin.
Notice of Deletion (NOD): A notice published in the Federal Register announcing a site's deletion from the
National Priorities List.
Notice of Intent for Partial Deletion (NOIPD): A Federal Register notice announcing the intent to delete a
portion of a site from the National Priorities List.
Notice of Intent to Delete (NOID): A Federal Register notice announcing the intent to delete a site from the
National Priorities List, providing site information, including related cleanup activities, and a 30-day
public comment period.
Notice of Partial Deletion (NOPD): A notice published in the Federal Register announcing that a portion of
a site has been deleted from the National Priorities List.
Operable Unit (OU): A designation for a portion of a site with defined boundaries and at which site actions
are uniquely planned, executed, and tracked.
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Glossary-ix
Operation and Maintenance (O&M): Those activities required for maintaining the effectiveness or integrity
of the remedy once it is constructed or installed.
Orphan Share: A portion of cleanup costs diat is assigned to insolvent or defunct Potentially Responsible
Parties (PRPs) and which may be allocated to viable PRPs under principles of joint and several liability.
Outputs: Quantitative or qualitative measures of important activities, work products, or actions. The National
Enforcement and Compliance Assurance Plan groups them under five headings: Enforcement Fairness/
Reduce Transaction Cost, Removal, Cost Recovery, Construction Completions, and Brownfields.
Owner or Operator: As defined by CERCLA section 107(a)(l) and (2), the owner or operator of a vessel or a
facility, or any person who at the time of disposal of any hazardous substance owned or operated any
facility at which such hazardous substances were disposed of. It does not include a unit of state or local
government that acquired ownership or control involuntarily through bankruptcy, tax delinquency, or
abandonment.
Partial Deletion: Deletion of portions of a site from die National Priorities List, including a geographic unit or
a specific medium.
Performance Bond: A guarantee given by a contractor that a work assignment will be completed according to
its terms and within the agreed time.
Performance Standards: Provisions in Consent Decrees and Administrative Orders specifying levels of perfor-
mance that site activities must achieve; often incorporated by reference in the Record of Decision. The
inclusion of such performance standards enables die Agency to assure measurable levels of cleanup that
provide the desired level of protectiveness.
Person: An individual, firm, corporation, association, partnership, joint venture, commercial entity, the United
States, or a state, municipality, or interstate body.
Plaintiff: A party who brings a legal action; the party who complains or sues in a civil action and is so named
on die record.
Potentially Responsible Party (PRP): Any individual or entity including owners, operators, transporters, or
generators that may be liable under CERCLA section 107(a) for CERCLA response costs.
Potentially Responsible Party (PRP)-lead: Designation for EPA-approved site activities undertaken and
financed by PRPs.
Preauthorization: A type of mixed funding settlement whereby EPA preauthorizes a claim against die Fund by
the Potentially Responsible Parties (PRPs) for a portion of their costs of conducting a response action.
Once the preaurhorization agreement is finalized, the PRPs conduct the response action, as oudined in the
settlement agreement, petition non-settling PRPs for reimbursement, and, if necessary, seek reimbursement
from the Fund for the preauthorized amount not received from non-settling PRPs.
Preliminary Site Close-Out Report (PCOR): This report documents the completion of physical construction,
summarizes site conditions and construction activities, and, as appropriate, provides the schedule for the
joint final inspection, approval of the work plan, and establishment of institutional controls.
Premium: A sum in addition to the cost of the response action that is paid or agreed to be paid by a Potentially
Responsible Party to cover risks associated with a settlement. For example, a premium may be part of an
early de minimis setdement due to potential inaccuracy of total response cost estimates or remedy failure.
Privileged: Term used to describe documents, communications, and other information that does not have to be
disclosed in a legal proceeding, and in some instances is forbidden to be disclosed.
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Glossary-x Glossary
Prospective Purchaser Agreement (PPA): An agreement between EPA and a prospective purchaser of con-
taminated property. The PPA provides the federal government's promise or covenant not to sue the
purchaser to recover the cost of cleaning up contamination that existed at the time of purchase.
Recalcitrant Term used to describe a Potentially Responsible Party who fails to cooperate widi EPA in reach-
ing settlement or fails to comply with a settlement or order.
Record of Decision (ROD): The official Agency Decision Document that describes the remedial cleanup
alternatives considered, the selected remedy, and the technical background of the decision, and explains
how the decision complies with the law.
Recusal: The voluntary or involuntary disqualification of a government official from any involvement in a
specific matter. Recusals are used to preserve the ethical standards of public service. A recusal generally
occurs when there is an appearance of a conflict between governmental responsibilities and private interest.
Once a person is removed through a recusal, he/she cannot participate in any activity related to the matter
under consideration; specifically, he/she cannot see any correspondence or participate in any meeting or
negotiations related to die issue.
Regional Support Division (RSD): The division within EPA's Office of Site Remediation Enforcement that is
the primary point of contact for EPA regions concerning contemplated civil and administrative enforce-
ment actions in the Superfund, RCRA Corrective Action, Underground Storage Tank, and Oil Pollution
Act programs. RSD is responsible for ensuring compliance with and enforcement of applicable EPA
remediation statutes and regulations, reviewing civil and administrative cases of national significance, and
ensuring consistency of individual cases with established EPA policies.
Remand: Return of a case to either a lower court or an administrative agency for further action.
Reopeners: Contractual provisions that preserve the Agency's right to compel Potentially Responsible Parties to
undertake additional response actions or to pay costs for Agency response actions in addition to those
agreed to in the settlement. Reopeners are triggered when previously unknown conditions at the site are
discovered, or information previously unknown to EPA is received, that indicates the remedial action is not
sufficiendy protective. Reopeners restrict the covenant not to sue by defining the conditions under which
the setdement may be re-examined.
Responsiveness Summary: Detailed responses to each significant comment that is received during a public
comment period.
"Sacred clauses": An expression used to describe language in a model document from which a setdement may
deviate only with die concurrence of the Office of Enforcement and Compliance Assurance.
Superfund Comprehensive Accomplishment Plan (SCAP) Projection Measure: A regional estimate of what
it will accomplish during a reporting period; used to establish numerical goals prior to a fiscal year.
Superfund Comprehensive Accomplishment Plan (SCAP) Reporting Measure: An actual accomplishment
of a site activity that is important in monitoring overall program progress.
Superfund Comprehensive Accomplishment Plan (SCAP) Targeted Measure: A pre-determined, quarterly
or annual, numerical goal that is established prior to the fiscal year in which the designated activities will
take place.
Secured Creditor Exemption: An exemption from liability set forth in CERCLA sections 101 (20)(A), (E), and
(F) that applies to lenders (e.g., banks) that, without participating in the management of the facility, hold
indicia of ownership in a facility in order to protect a security interest (e.g., a mortgage).
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Glossary-xi
Settlement: The resolution of a claim. Settlement occurs when the federal and/or state agency has a written
agreement regarding the payment and conduct of specified response actions. Settlements may be achieved
administratively through an Administrative Order on Consent or judicially through a Consent Decree.
Settlement Judge: An Alternative Dispute Resolution technique using a judge other than die one hearing the
case to act as mediator of the parties' setdement discussions. A settlement judge usually gives his/her
opinion as to the probable outcome of the case.
Severability: Provision in an Administrative Order that the respondent must comply with all other provisions
of the order should a court invalidate a particular provision.
Site Completion: Completion of all response actions at an NPL site as documented in a Final Close-Out
Report.
Site Deletion: Removal of a site from the NPL when no further response is needed to protect public health or
the environment.
Special Account: A site-specific account that may be established under the authority of CERCLA section
122(b)(3) to hold the future costs component of a cashout setdement to fund future response actions at the
site.
Special Master: A court-appointed official who oversees the progress of a complex case before it goes to trial.
The scope of the special master's authority is set forth in an Order of Reference. Special masters are
appointed only under exceptional conditions, for example, in cases requiring the interpretation of compli-
cated technical data or voluminous amounts of information.
Special Notice Letter (SNL): A written notice to a PRP providing information on potential liability, condi-
tions of the negotiation moratorium, future response actions, and a demand for past costs. The SNL is
authorized under CERCLA section 122(e)(l) and triggers the start of a negotiation moratorium.
Statute of Limitations (SOL): The statutorily defined period of time within which the United States, on
behalf of EPA, must file a claim for cost recovery. If a claim is not filed within the SOL, the United States
will forfeit its right to recover its costs.
Statutory Penalties: Penalties authorized by a statute. For example, under CERCLA, if Potentially Responsible
Parties do not comply with an Administrative Order, they may be sued for statutory penalties of up to
$27,500 per day under section 106(b)(l) of CERCLA as modified pursuant to EPA's Civil Monetary
Penalty Inflation Adjustment Rule.
Stipulated Penalties: Fixed sums of money that a defendant agrees to pay for violating the terms of a setde-
ment. Procedures for invoking and appealing stipulated penalties and penalty amounts are agreed to in the
Administrative Order on Consent or Consent Decree.
Strict Liability: Legal responsibility for damages without regard to fault or diligence. The strict liability
standard in CERCLA means that the federal government can hold Potentially Liable Parties liable without
regard to their fault, diligence, negligence, or motive.
Subject Matter Expert: Someone who is versed in a specialized area of enforcement, such as Remedial Design/
Remedial Action setdement tools, and is available as a resource to those involved in the enforcement
process.
Summary Judgment: Judgment rendered before trial in a civil case because the court finds that there is no
genuine issue before it.
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Glossary-xii Glossary
Takings: Governmental acts that convert private property to public property. Takings may arise from acts of
permanent physical occupancy or from regulation that prevents the owner from making any economically
viable use of the property. The occupancy or regulatory action need not be permanent to be considered a
taking. The Fifth and Fourteenth Amendments of the U.S. Constitution bar the taking of private property
by federal or state governments without just compensation. Under CERCLA, takings issues have arisen in
connection with occupancy of property by EPA for the purpose of conducting response actions.
Technical Assistance Grant (TAG): A grant of up to $50,000 to enable citizens to hire independent technical
advisors to help them understand information related to cleanup of a specific Superfund site.
Technical Impracticability Waiver: Waiver of an Applicable or Relevant and Appropriate Requirement
(ARAR) available under NCP section 300.430(f)(l)(ii)(Q(3) on the ground that compliance with the
ARAR is technically impracticable from an engineering perspective.
Time-Critical Removal: A removal for which the lead agency determines, based on a site evaluation, that there
are fewer than six months of planning time available before on-site activities must begin.
Tolling Agreement: An agreement between EPA and Potentially Responsible Parties to delay the running of
the Statute of Limitations for cost recovery actions.
Transporter: As defined by CERCLA section 107(a)(4), any person who accepts or accepted any hazardous
substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened release which causes the incurrence of response costs,
of a hazardous substance.
Treble Damages: Sum at least equal to but not more than three times the amount of site response costs. Under
CERCLA section 107(c)(3), if EPA conducts a cleanup as a result of the Potentially Responsible Parties'
non-compliance with an Administrative Order, damages may be assessed in the maximum amount of three
times the amount of the response costs. Damages may be assessed in addition to recovery of response costs.
Unilateral Administrative Order (UAO): An order issued by EPA, authorized by CERCLA section 106,
requiring the Potentially Responsible Parties to undertake a response action. There must be imminent and
substantial endangerment to the public health or the environment before such an order can be issued.
Volumetric Ranking: Method of ranking Potentially Responsible Parties' responsibility for cleanup effort
according to the amount of waste they contributed to a site.
WasteLAN: The regional computer interface with the CERCLIS 3 database.
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On line Information
Sources
-------
Sources-i
On-Line Information Sources
The following sources offer access to a wealth of EPA Superfund enforcement, technical program, and related
information. Most of the sources offer direct access to documents and odier resources that can be down-loaded
and printed, as well as links to related pages, references, and points of contact. Others, such as NTIS, offer the
opportunity to locate and order documents. Also included are sources of information regarding other federal
departments' hazardous waste site cleanup programs.
1) EPA Intranet - These pages are accessible only by EPA employees using EPA computers (and by a
limited number of EPA contractors who support Intranet operations). EPA Agency-wide Intranet,
called "EPA@Work" is intranet.epa.gov. EPA Headquarters Intranet, which carries information pertain-
ing only to Headquarters, is intranet.epa.gov/hqintran.
OERR Work Net - From the page itself, "This is OERR's private (Intranet) area on the world wide web.
Work Net is the place where Superfund and Oil personnel can share information and news, comment
on draft documents and proposals, keep up-to-date on OERR workgroups, find out about training
opportunities, and altogether keep each other better informed about the happenings in this ever-
changing program."
2) EPA Public Web Pages - These pages have been created by EPA for public use and are maintained
through the EPA website.
• EPA Homepage - This homepage is the starting point for all EPA programs, offices, issues, etc. widi
additional links to useful non-EPA resources.
— http://www.epa.gov
• EPA OECA Homepage - This homepage is the starting point for the EPA Office of Enforcement
and Compliance Assurance and contains links to EPA programs, offices, and issues related to EPA's
multi-media enforcement and compliance programs.
— http://www.epa.gov/oeca
• EPA OSRE Homepage - The Office of Site Remediation Enforcement homepage provides informa-
tion regarding EPA's CERCLA enforcement program organization, responsibilities, and initiatives as
well as numerous links to other pages of interest to the Superfund enforcement community.
— http://www.epa.gov/oeca/osre.html
• EPA OSRE Documents - Available as a Link from the OSRE homepage, this page offers online
access of OSRE documents.
— http://www.epa.gov/oeca/osre/osredoc.html
• EPA OSWER Homepage - The EPA Office of Solid Waste and Emergency Response homepage
provides extensive information on EPA's solid and hazardous waste program organization, operation,
initiatives, and activities.
— http://www.epa.gov/swerrims/
• EPA Superfund Homepage - The homepage for EPA's Superfund program includes the "Superfund
Hazardous Waste Site Advanced Query Form," a useful tool for obtaining site information.
— http://www.epa.gov/superfund
• EPA RCRA Homepage - This is die homepage for EPA's RCRA Program.
— http://www.epa.gov/rcraonline
• EPA Envirofacts - This site provides access to a national information system for a single point of
access to data extracted from seven major EPA databases.
— http://www.epa.gov/enviro
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Sources—ii On-Line Information Sources
• Clu-In - Run by the EPA Technology Innovation Office, this site provides information on innova-
tive-treatment technology to the hazardous waste remediation community.
— http://www.clu-in.com
3) EPA Hotlines
• EPA RCRA, Superfund & EPCRA Hotline - The hotline offers easy point-of-access for site and
program information.
— (800)424-9346
— http://www.epa.gov/epaoswer/hotline
4) Other Federal Departments
Department of Defense - Environmental Cleanup Office Web Page - This web page of the DoD's
Office of Environmental Cleanup, which is charged widi developing policy and overseeing the
Defense Environmental restoration Program (DERP).
— http://www.dtic.mil/envirodod/about.html
• Department of-Defense - Environmental Network and Information Exchange - DENIX provides
access to environmental legislative, compliance, restoration, cleanup, safety & occupational health,
security, and DoD guidance information regarding DoD environmental programs.
— http://www.denix.osd.mil/
• Department of Energy - Environmental Management - The web page of die DOE Office of
Environmental Management (EM) provides information regarding the DOE's program to consoli-
date, centralize, and promote cleanup of contaminated waste sites and surplus facilities within the
DOE Complex.
— http://www.em.doe.gov/
• Department of Justice - Environment and Natural Resources Division - This web page provides
access to information and resources regarding the Division's responsibilities including prosecution of
criminal environmental cases, defense of EPA's rulemakings and administrative actions against
challenge, and enforcement of the nation's environmental laws.
— http://www.usdoj.gov/enrd/enrd-home.html
5) Federal Regulations, Statutes, and Summaries
• Federal Register - Database for the 1995, 1996, 1997 and 1998 Federal Register.
— http://www.gpo.gov/su_docs/aces/acesl40.html
• Code of Federal Regulations (CFR) - Database for the CFR.
— http://www.access.gpo.gov/nara/cfr/index.html
• Summaries of Environmental Laws Administered by EPA - Summaries of the 12 major statutes
that form the legal basis for EPA programs can be found on tliis site.
— http://www.cnie.org/nle/leg-8.html
6) Other Resources
• Superfund Document Search - Users can search for Superfund-related documents by Number
(EPA, OSWER, NTIS) or by Keyword.
— http://superfund.fedworld.gov/search.html
• National Technical Information Service (NTIS) - Users can search for and order Agency docu-
ments and publications.
— http://www.ntis.gov
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Index
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Index—i
Index
104(e) Letter: see Information Request Letter
Ability to Pay (ATP): 3.21; 4.9; 8.17; 8.23; 12.30
Access: 9.34-35
Action Memorandum: 2.5
Administrative Order (AO):
enforcement of: 2.21
andPRP:4.l6
for RI/FS: 5.1; 5.11-13; 5.17
and RD/RA site access: 9.34
as an RI/FS SCAP measure: 5.26
Administrative Order on Consent (AOC)/Consent Order 5-17; 2.16
model: 5.17; 2.17
and RD/RA negotiations/settlement: 8.1; 8.47
and RI/FS settlements: 13.12
replacement of UAO with: 2.21
Administrative Record (AR): 2.5
and community involvement: 13.15-16; 15.11
and cost recovery: 12.2
for selection of remedy: 7.15; Ex. 7-2
Administrative Record (AR) rile: 15.5; Ex. 15-3
and certification: 15.15
content and structure of: 15.7
EPA roles concerning: 15.7
and excluded and privileged information: 15.14
and federal facilities: 15.11
model structure of: 15.8
and post-decision information: 15.14
and community involvement: 15.11
and state as lead agency: 15.10
Administrative Reforms:
and enforcement program: 1.2
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Index—ii Index
Administrative Subpoena: 4.21
Advice of Allowance (AOA):
andO&M: 10.5
and state involvement: 14.9
Agency for Toxic Substances and Disease Registry (ATSDR):
and health assessment: 6.12
and RI/FS implementation: 6.5; 6.7
Alternative Dispute Resolution (ADR):
and cost recovery: 12.26
and enforcement program: 1.4-5
andOSRE: 1.5
and poor relations among PRPs: 8.48
and PRP search: 4.25
Applicable or Relevant and Appropriate Requirement (ARAR): 2.24; 7.4-8
compliance with: 7.1
and RI/FS implementation: 6.11; 6.29-30
Arbitration: 1.5
and cost recovery: 12.26
Bankruptcy:
and cost recovery: 12.28
and GNL: 5.6
and SNL: 5-20
Baseline Report: see Potentially Responsible Party
Baseline Search: see Potentially Responsible Party
Case Budget (CB): 5.25
and state involvement: 14.15
Case Team:
formation and responsibilities of: 5.7
and PRP search: 5.7
Cashout Settlements:
and AA/OECA concurrence: 8.29
and settlement tools: 8.28-29
Civil Investigator (CI):
and baseline report: 4.17-18
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Index—Hi
and PRP search: 4.4; 4.5; 4.8
and RI/FS: 5.7
Clean Water Act (CWA): 1.4
Close Out Report (COR):
and definition of FCOR: 11.2
and documentation of site completion: 11.4
and FCOR: 11.1; 11.4
andRPM: 11.1-2; 11.4
and site deletion: 11.1; 11.4; 11.6
Community Advisory Group (GAG): 13.8-9
Community Involvement: Chapter 13
andAR: 13.15-16; 15.11
andCIC: 13.7; 13.14
and planning and reporting requirements: 13.17
and potential problems/solutions: 13.18-19
PRP involvement in: 13.10
and public comment: 13.12; 13.13-14
and remedial actions: 13.11-14
and removals: 2.22; 13.11
and selection of remedy: 7.14
andSCAP: 13-17
Community Involvement Coordinator (CIC); 13.7; 13.14
Community Involvement Plan (CIP): 13-7-8; 13.10; 13.11; 13-14-15; 13.17
Comprehensive Environmental Response, Compensation, and Liability Information System 3/Waste
Local Area Network (CERCLIS 3/WasteLAN):
and community involvement: 13.17
and cost recovery: 12.32-35
and decision documents: 12.34
and event codes: 14.17
and O&M: 10.5-6
and PRP search: 4.5
and RAGS: 5-16; 6.27
and RD/RA implementation: 9.24-30
and RD/RA negotiations/settlement: 8.44-47
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Index—iv Index
and removals: 2.25-30
and RI/FS implementation: 6.33-35
and RI/FS negotiations/settlement: 5.25-27
and site deletion: 11.6; 11.7
and site management planning: 1.10
and state involvement: 14.16-18
Confidential Business Information (CBI):
and cost recovery: 12.14
Consent Decree (CD):
draft CD: 8.12
multiple revisions of: 8.48
model CDs: 8.12; Ex. 8-4
and public comment: 13.13-14
and RD/RA negotiations/settlement: 8.1
and role in RI/FS negotiations/settlement: 5.1
and O&M: 10.2
Contractors: 2.25; 7.23; 9-5; 9.18
and PRP search: 4.8; 4.26
Cooperative Agreement (CA):
and state involvement: 14.2; 14.5; 14.6; 14.9
Cost Documentation File:
content and structure of: 15.16
and cost recovery actions: 15.16
and file management: 15.17
Cost Recovery: Chapter 12
and administrative settlements: 12.25
for ADR: 12.26
and arbitration: 12.26
and ATP settlements: 12.30
and bankruptcy actions: 12.28
and budgeting: 12.32
and case referral: 12.5; 12.10; 12.20; 12.25
and CBI: 12.15
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Index—v
and CERCLIS 3/WasteLAN reporting requirements: 12.32
for conventional removals: 12.3
and cost summaries: 12.15-16
and "de micromis" settlements: 12.24
and de minimis settlements: 12.23
and demand letters: 12.12
direct costs in: 12.14
documentation procedures for: 12.17
documentation requirements for: 12.13
as enforcement goal: 1.1
and enforcement of settlements: 12.25
and EPA indirect costs: 12.14
and evidence of costs: 12.14
and fraudulent transfer of assets: 12.10
and judicial cost recovery: 12.20
and litigation management plan: 12.22
and litigation referral package: 12.5
and litigation support: 12.21
and mixed funding: 12.26
and notification and demand requirements: 12.11
and orphan share: 12.28
and oversight costs: 12.5
and planning: 12.32
and prioritization of cases: 12.9
and PRP searches: 12.8
forRD/RA: 12.4-5
and records management: 15.16
and referral package: 12.20
and referral to DOJ: 12.5
for remedial sites: 12.2
for removals: 12.3
and role of CRC: 12.13
and role of regional counsel: 12.20
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Index--vi Index
and RSD: 12.7; 12.29
andSCAP: 12.32
and SCORES: 12.20
andSNL: 12.11
and SOL: 12.10
and statutory authority: 12.8
and strategy: 12.9
and timing: 12.10
and types of costs: 12.14
and types of expenditures: 12.14
and United States v. Rohm and Haas Co.: 12.6
Covenants Not to Sue: 8.13-15
Data Characterization Package: 11.6
Decision Document (DD): 12.11
and CERCLIS 3/WasteLAN: 12.34
Demand Letters: 12.12
and cost recovery: 12.3
"De Micromis" Settlements: 12.24
and criteria for eligibility: 12.24; 8.32
and PRP search: 4.20
and RD/RA negotiations/settlement: 8.32
De Minimis Settlements: 12.23
and candidate sites: 8.29
and criteria for eligibility: 12.23; 8.29
and definition of number of PRPs: 8.47
early entry into: 5.2
and PRP search: 4.20
and RD/RA negotiations/settlement: 8.2-3; 8.29
and settling with majors involved: 8.49
timing of: 8.31
Department of Justice (DOJ):
and case referral: 12.5; 12.9
and community involvement: 13.10; 13.14; 13.15
and concurrence in cost recovery settlement: 12.5; 12.16
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Index—vii
and enforcement program: 1.13
and Environment and Natural Resources Division: 8.4
and notification of RI/FS: 5.22
and OLS: 8.7
and post-referral actions: 8.42
and PRP compliance with information requests: 4.16
and RD/RA negotiations/settlement: 8.7
and RI/FS negotiations/setdement: 5.5
Design Engineer: see Remedial Design/Remedial Action - professional
Ecological/Environmental Assessment: 4.11; 4.25
Emergency Planning and Community Right-to-Know Act (EPCRA): 1.15
Emergency Response Notification System (ERNS): 2.29-30; Ex. 2-6
Endangerment Assessment: see Risk Assessment
Enforcement Specialist:
and role in RI/FS negotiations/setdement: 5.2
and RPM responsibilities: 8.6
Environmental Assessment: see Ecological/Environmental Assessment
Exceptions to CERCLA Response Authority:
petroleum: 3.6
workplace exposures: 3.6
Federal Facilities:
and enforcement program: 1.12
and RI/FS negotiations/setdement: 5.4
Federally Permitted Release:
and liability response cost: 3.5
Field Sampling Plan (FSP): 6.21
Final Close Out Report (FCOR): 11.1; 11.2; 11.4
Force Majeure: 2.19
Freedom of Information Act (FOIA) requests:
responding to: 4.15
General Notice Letter (GNL): 5.8
and bankruptcy: 5.6
copy distribution: 4.24
issuance of: 5.8; 4.2
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Index—viii Index
andMSW: 4.23
and PRP search: 4.21; 4.22-24
and sending/mailing: 4.23
Generator/Transporter:
and estimated cleanup cost: 4.20
and liability: 3.4
Good Faith Offer (GFO): 5.21
and RD/RA negotiations/setdement: 8.20
and RI/FS negotiations/setdement: 5.21
and SNL: 5-20
Health Assessment:
and RI/FS implementation: 6.19
Health and Safety Plan (HASP):
and RD/RA implementation: 9-18
and RI/FS implementation: 6.22
Information Request Letters (104(e) Letters):
content of. 4.12
and delivery: 4.15
enforcement examples: 4.28
and followup: 4.16; 4.17
and generator/transporters: 4.18; 4.19
and insurance information: 4.14
and municipal sites: 4.14
and noncompliance and enforcement: 4.16
and owner/operators: 4.14; 4.12
in PRP search: 4.24
and PRP waste contribution: 4.24
and removals: 2.32
and responses: 4.15
and statutory authority: 4.12
and written response and due date: 4.15
Innovative Technologies: 7.9
Intergovernmental Review:
of Fund-lead RI/FS: 5.6
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Index—ix
Lender Liability Rule: 3.4; 3.8; 3.9
Liability:
and acts of God: 3.5
and acts of war: 3.5
and arranger: 3.4
and ATP: 3.21
and bankruptcy: 3.21
and corporate officers: 3.2
and "de micromis" settlements: 3.16
and de minimis settlements: 3.15
elements of: 3.1; 3.8
exemptions and limitations of: 3.8-11
extent of: 3.4
and federally permitted releases: 3.6
and fiduciaries: 3-3-4; 3.9-10
and generators: 3.4
and inheritance: 3.5
and innocent landowner defense: 3.5
and involuntary acquisitions: 3.5
joint and several: 3.1
and lender liability rule: 3-5-6; 3.8; 3-10-11
and lenders: 3-8
and liable parties: 3-1-4
andMSW:3.13
and municipalities: 3.13
and orphan share compensation: 3.17-18
and owners of property above contaminated aquifers: 3.12
and parent corporations: 3-2
and prospective purchasers: 3.13-14
and reimbursement petitions: 3.20
and residential homeowners: 3.11-12
and response action contractors: 3.11
and state involvement: 14.18
and secured creditor exemption: 3.3; 3.8-9
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Index—x Index
and service station dealers: 3.10
and state and local government employees: 3.10
and state and local governments: 3.10-11
strict: 1.3; 3.1
and successor corporations: 3.3-4
and third-party defense: 3.5
and transporters: 3.4
Litigation Support: 12.21
"Matters Addressed": 8.15
Mediation: 1.4
Mini-Litigation Report:
and draft CD: 8.12
Minitrial: 1.4
Mixed Funding: 8.24-26
and cashout: 8.28
and cost recovery: 12.26
and mixed work: 8.28
and preauthorization: 8.26
Mixed Wort
and settlement tools: 8.28
Municipal Solid Waste (MSW): 3.13
and GNL: 4.23
National Priorities List (NPL):
andATSDR:6.12
and cost recovery: 12.9
and deletion from: Chapter 11
and PRP search: 4.1; 4.26
and removals: 2.1
and state involvement: 14.1; 14.6-7
Natural Resource Damages: 5.10; 8.18
Natural Resource Trustees:
authority of: 5.8
coordination with: 5.8
and enforcement program: 1.14
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Index—xi
and Executive Order 13016: 5-10
notification of: 5.10; 8.18
and roles and responsibilities in RI/FS implementation: 6.12
Neutral Evaluation: 1.4
No Further Response Needed: 11.2
Non-Binding Preliminary Allocation of Responsibility (NEAR): 8.33
Notice of Deletion (NOD): 11.2; 11.6
Notice of Intention to Delete (NOID): 11.1; 11.2; 11.4
Notice of Intention for Partial Deletion (NOIPD): 11.1; 11.2; 11.4
Notice of Partial Deletion (NOPD): 11.1; 11.2; 11.6
Office of Emergency and Remedial Response (OERR):
and CB: 14.8
Office of Enforcement and Compliance Assurance (OECA):
and cashout settlements: 8.29
responsibilities of: 8.6
Office of General Counsel (OGC):
and roles and responsibilities in RD/RA negotiations/settlement: 8.7
Office of Regional Counsel (ORC): see Regional Counsel
Office of Site Remediation Enforcement (OSRE): 1.13
and ADR: 1.5
roles and responsibilities in RD/RA negotiations/settlement: 8.6
roles and responsibilities in RI/FS negotiations/setdement: 5-5
Oil Pollution Act of 1990 (OPA): 1.15
On-Scene Coordinator (OSC):
and community involvement: 13.7
and cost recovery: Chapter 12
and records management: 15-5; 15.7; 15-21
and removals: Chapter 2
Operation and Maintenance (O&M): Chapter 10
and O&M manual: 10.2-3
and O&M oversight: 10.3
and O&M plan: 10.2; Ex. 10-1
and planning and reporting requirements: 10.5-7
Operational and Functional (O&F): 10.1
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Index—xii Index
Orphan Share:
and compensation: 8.34; 3.17-18
and cost recovery: 12.28
Oversight 1.12
and cost recovery: 12.5
and RD/RA implementation: 9.1; 9.2; 9.7; 9.7; 9.16; 9.31
and removals: 2.22
and RI/FS implementation: 6.6-7
and state involvement: 14.4; 14.18
Oversight Assistant:
and role in RI/FS implementation: 6.10-11
Oversight Official and Technical Review Team (TRT):
and RD/RA: 9-7-9
Post-Referral Actions:
andDOJ: 8.42
Potentially Responsible Party (PRP):
and administrative subpoenas: 4.21
andAO: 4.16
and conduct of RI/FS: 5-23
determining financial viability of: 2.32
and judicial action: 4.17
and negotiations: 1.11
and notice: 2.12
and obtaining response action from: 1.1
and oversight: 1.12; 2.22
and poor relations among: 8.48
searches: Chapter 4
and activities checklist: 4.33
and administrative subpoenas: 4.20
baseline report: 4.4; 4.10; 4.17
and baseline search : 4.2; 4.10; 4.17
and budget: 4.26
andCI: 4.5; 4.8
and completion: 4.22
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Index—xiii
and contractors: 4.8
and de minimis and "de micromis" settlements: 4.20
and FOIA requests: 4.15
followup report: 4.22
andGNLs: 4.22
and inadequate search: 8.49
and information exchange: 4.25
and insurance information: 4.14
interim final report: 4.4; 4.21-22; 4.26
and key players: 4.4
and management review: 4.18
and municipal sites: 4.14; 4.19
objectives of: 4.1
and ongoing information exchange: 4.25
and owner/operator followup: 4.11
and planning: 4.26
and preliminary search: 4.9
and PRP search plan: 4.2; 4.4; 4.9
PRP synopsis report: 4.4; 4.18
and RD/RA negotiations/setdement: 8.10
andRAs: 4.5
and review of search and search report: 5-7; 8.10
and reporting requirements: 4.27
and roles and responsibilities: 4.28
andRPMs: 4.4-5
site chronology and property history report: 4.4; 4.18
and specialized search tasks: 4.3; 4.20
and timing: 4.28
and waste-in information: 4.24
settlements: 1.12
steering committees: 5.9
Preauthorization: 8.26
andPDD: 8.27
Preliminary Close Out Report (PCOR): 9.29
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Index—xiv Index
Preliminary Natural Resource Survey (PRNS): 6.12
Premium:
and RD/RA negotiations/settlement: 8.16; 8.29; 8.30; 8.31
Pre-Referral Package: 8.3
Primary Balancing Criteria: 7.6
Proposed Plan: 7.11
and community involvement: 13.12
contents of: 7.12
finalization of: 7.16
format of: 7.12
Prospective Purchaser Agreements (PPAs): 3.13-14
Quality Assurance Project Plan (QAPP):
and RI/FS implementation: 6,21
Quality Assurance Team (QAT): 9.5; 9-19
Record of Decision (ROD):
and changes from the proposed plan: 7.20
components of: 7.18
and disputes over: 7.25
and post-ROD changes: 7.22
and preparing draft: 7.18
and RD/RA negotiations/settlement: 8.12
and state involvement: 14.2
Records Management: Chapter 15
and budget: 15.20
and file maintenance: 15.19
and OSC and RPM involvement: 15.21
and planning: 15.20
and priority setting: 15.20
andSDMS: 15.17
and storage and maintenance of records: 15.17
and space: 15.21
and transporting records to sites: 15-21
and vital records: 15.11
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Index—xv
Referral Package:
and finalizing settlement: 8.37-38
Regional Administrator (RA):
and cost recovery: 12.8; 12.24; 12.25
and RI/FS settlement: 5.23
and ROD signature: 7.18
and site deletion and final COR: 11.1
Regional Counsel:
and community involvement: 13.7
and cost recovery: 12.3; 12.8; 12.14-15; 12.20
and O&M: 10.8
and PRP search: 4.5
and records management: 15-21
and RI/FS implementation: 6.11
and role in RI/FS negotiations/settlement: 5.5
and roles and responsibilities in RD/RA negotiations/settlement: 8.6
Regional Ombudsman: 13.8
Regional Support Division (RSD):
and cost recovery: 12.7; 12.29
Reimbursement Petitions: 3.20
Remedial Alternatives:
detailed analysis of: 6.31-32
and development and screening: 6.29-30
Remedial Design/Remedial Action (RD/RA):
and compliance monitoring: 9.32
and cost recovery: 12.1; 12.2-4; 12.16
and EPA oversight objectives: 9.2
and implementation: Chapter 9
and changes in construction: 9.22
and community involvement activities: 9.16
and construction completion: 9.23
and construction QA/QC plans: 9.12
and construction schedule: 9.12
and design investigation: 9.10
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Index—xvi Index
and design support: 9.12
and EPA pre-RA review: 9.12
and final RA completion: 9.29
and immediate danger/emergency response: 9.22
and initiation of oversight: 9.16
and intermediate design review: 9.16
and oversight: 9-2; 9.12; 9-16
and PCOR: 9.29
and pre-final/final design review: 9.16
and pre-final/final inspection: 9.22
and preconstruction conference: 9.20
and preliminary design review: 9.14
and preparation of RA report: 9.14
PRProlein: 9.3
and RA implementation: 9.20
and RA work plan revision: 9.18
and RAR: 9.23
and Remedial Action Delivery Analysis: 9.14
and review of QAT qualifications: 9.19
and review of RA contractor qualifications: 9.18
and review of RD professional qualifications: 9.8
and work plan review: 9.13
and incentives for successful performance: 9.31
and negotiations/settlement: Chapter 8
and budget requirements: 8.44
and enforcement options: 8.37
and negotiation extensions: 8.21
and negotiation moratorium: 8.3
negotiation process: Ex. 8-1
and outcomes definitions: 8.45-47
and partial settlements: 8.41
and RD/RA Negotiation Plan: 8.10
and RD/RA negotiation planning schedule: 8.10
and reporting requirements: 8.44
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Index—xvii
and SCAP targets: 8.44-47
and section 122(a) letters: 8.20
and settlement tools: 8.24
and use of public relations: 8.49
and volumetric ranking: 8.50
and SCAP: 8.45-47; Ex. 8-5; Ex. 8-6; 9.16; Ex. 9-4; Ex. 9-5
and United States v. Murtha: 9.24
Remedial Investigation/Feasibility Study (RI/FS):
and AO: 5.11-13
and Case Team: 5.7
decision to start: 5.6
and early de minimis setdements: 5.2
Fund-lead: 5.24
and GFO: 5.21
implementation of: Chapter 6
andATSDR: 6.12
and baseline risk assessment: 6.3-4
and collection and analysis of field data: 6.3; 6.22-25
and community involvement: 6.12
detailed analysis of remedial alternatives: 6.31-32
development and screening of remedial alternatives: 6.29-30
and dispute resolution: 6.36
and HASP: 6.22
and natural resource trustees in: 6.12
and oversight assistant: 6.10
and oversight: 6.6-7
phases of activity in: 6.2-6
andPNRS:6.12
pre-negotiation scoping in: 6.19
PRP performance of: 6.1
post-AOC scoping in: 6.3
project scoping in: 6.19-22
and risk assessment: 6.26-27
andRPM: 6.5
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Index-xviii Index
and SAP: 6.21-22
andSCAP: 6.33-35
and site characterization: 6.22-25
and SOW: 21
and treatability investigations: 6.28-29
work plan for: 6.9-10
and natural resource trustees: 5.8; 6.12
negotiations/settlement: Chapter 5
and AO: 5.1
and CERCLIS 3/WasteLAN: 5.26
and CD: 5.1
contractor support in: 5.25
and community involvement: 13.17
and coordination with states: 5.1
and DOJ: 5.5
and drafting AO: 5.17
and Fund lead: 5.24
and negotiation moratorium: 5.20
and negotiation plan: 5.6; 5.7
and DOJ: 5-5
outcome of Fund-lead RI/FS: 5.24
outcome of PRP-lead RI/FS: 5-24
oversight of (CERCLA section 104): 5.25
oversight of (cost/limits): 5.28
and past costs: 5.28
and planning requirements: 5.25
and PRP lead: 5-24
and regional counsel: 5.5
and reporting requirements: 5.26
and required removals: 5.29
and SCAP: 5.26
and site boundaries: 5.11
and SOW: 5.13; 5.18
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Index—xix
state coordination in: 5-1
and stipulated penalties: 5-28
overview: 6.2-3
preliminary scoping of: 5.10
PRP conduct of: 5.23-24
and PRP search review: 5.7
and site management strategy: 5.10
and site objectives: 5.10
and SOW: 5-9; 5.11; 5.2
and steering committees and information exchange: 5.9
and work plan: 5.13
Remedial Project Manager (RPM): 1.1; 1.13
and community involvement: 13.7
and cost recovery: Chapter 12
and enforcement specialist: 8.3
and general responsibilities: Preface
and O&M: Chapter 10
and PRP search: Chapter 4
and records management: Chapter 15
and remedy selection: Chapter 7
and removals: Chapter 2
and roles and responsibilities in RD/RA implementation: 9.6-7
and roles and responsibilities in RD/RA negotiations/settlement: 8.6
and roles and responsibilities in RI/FS implementation: 6.8-9
and roles and responsibilities in RI/FS negotiations/settlement: 5.5
and site deletion: 11.1-2; 11.4; 11.6
Remedial Site Files: Ex. 15-1
and collection of field data: 15.2
and content and structure: 15.2
and file management: 15.2
Remedy Selection: Chapter 7
and AR: 7.15
and ARAR compliance: 7.1
and changes from the Proposed Plan to the ROD: 7.20
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Index—xx Index
and community acceptance: 7.14
and contractor participation: 7.15
and cost: 7.7
and disputes over ROD: 7.25
and extensive public comment: 7.25
and final selection of preferred alternatives: 7.16
and Fund lead: 7.13
and inconsistent PRP alternative: 7.25
and modifying criteria: 7.7
and planning requirements: 7.23
and post-ROD changes: 7.22
and preparation for negotiation: 7.16
and preparing draft ROD: 7.18
and primary balancing criteria: 7.6
and promotion of national consistency: 7.8
and proposed plan: 7.11
and reporting requirements: 7.23
and required notification: 7.16
and responsibilities: 7.3
and SCAP: 7-23
and state/federal and public input on preferred alternative: 7.13
and state/federal concurrence: 7.13
and state lead: 7.14
and statutory authority: 7.1
and threshold criteria: 7.4
and unanticipated changes: 7.20
Removal Site Files:
and collection of field data: 15.5
and file content and structure: 15.5
and file management: 15.5
Removals: Chapter 2
activities checklist: 2.33
community involvement in: 2.22
and completions: 2.27-28
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Index—xxi
and consistency exemption: 2.4
and cost recovery: 12.3
during RI/FS: 5.29
and emergencies: 2.3
and emergency exemption: 2.4
Fund-financed: 2.4
non-time-critical: 2.3
planning: 2.11
planning and reporting requirements: 2.25
PRP-fmanced: 2.8
replacement of UAO with AOC: 2.21
and site lead: 2.11
starts: 2.26
time-critical: 2.3
Reopeners:
and cost recovery: 12.24
and negotiation planning: 8.18
OSRE Director, advance written approval of: 8.5
in RD/RA negotiations/settlement: 8.31
Resident Engineer: 9.4-5
Resource Conservation and Recovery Act (RCRA): 1.4
andARARs:4.1;4.l6
and past costs: 5.28; 12.1
and PRP searches: 4.1; 4.4; 4.5; 4.13; 4.15; 4.16; 4.24; 4.36
and remedy selection: 7.6
and RI/FS implementation: 6.7
Response Action Contract (RAC):
and state and local government liability: 3.10-11
and RAC contractor: 3.10
Responsiveness Summary: 11.6
Risk Assessment: 6.26-27
and ecological/environmental assessment: see Ecological/ Environmental Assessment
and environmental evaluation: 6.12
establishing background for: 5.16
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Index—xxii Index
and human health evaluation: 5.16; 6.26
PRP conduct of: 5.16
and section 106 litigation: 8.41
Sampling and Analysis Plan (SAP):
in RI/FS implementation: 6.21-22
Section 122(a) letters: 8.20
Secured Creditor Exemption: 3.3; 3.8-9
Settlement Judge: 1.4
Settlement Policy:
and section 107: 12.8
and section 122: 12.8
and section 122(h): 12.8
and cost recovery: 12.8
and RD/RA negotiations/setdement: 8.22
Site Assessment and Response Planning: 1.7
Site Characterization:
and collection and analysis of field, data: 6.122-25
Site Completion: 11.1; 11.4
definition of: 11.3
documentation of: 11.4
partial: 11.1
and procedures and interactions: 11.4
Site Deletion: 11.1
and background information collection: 11.4
and consultation witli state/tribe: 11.4
criteria for: 11.4
and COR: 11.1-2;! 1.4
docket: 11.4; 11.6
definition of: 11.2
disputes over: 11.8
and initiation of process: 11.1
and meeting deletion criteria: 11.4
and no state concurrence: 11.8
and NOD: 11.2
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Index—xxiii
and MOID: 11.2
andNOIPD: 11.2
andNOPD: 11.2
panial: 11.2
and potential problems/resolutions: 11.8
and preparation of NOD and NOPD: 11.6
and preparation of NOID or NOIPD: 11.6
and preparation of responsiveness summary: 11.6
and procedures and interactions: 11.4
and public involvement: 11.6
and public notification: 11.6
and releases from deleted sites: 11.8
reporting requirements for: 11.7
role of EPA Headquarters in: 11.2
role of region in: 11.1-2
roleofRPMin: 11.1-2; 11.6
role of state or tribe in: 11.2
and state/tribe concurrence: 11.4; 11.8
Site Files:
and remedial site files: 15.2
and removal site files: 15.5
Site Management Planning: 1.7
for removals: 1.10
Site Management Plans (SMPs): 1.7
Special Notice Letter (SNL): 8.3
and 60-day negotiation moratorium: 8.3
and bankruptcy: 5.8: 5.20
contents of: 8.18
and cost recovery: 12.11
and decision not to issue: 5-8
issuance and timing of: 8.18
and RD/RA negotiations/settlement: 8.18
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Index-xxiv Index
State Involvement: Chapter 14
and block funding: 14.8
and CA: 14.2; 14.5; 14.6; 14.9
andCB: 14.15
and CERCLIS 3/WasteLAN: 14.15
and core program funding: 14.6
and deferral of sites for state involvement: 14.5
and development of the lead agency enforcement CA: 14.9
and EPA approval of state remedies: 14.13
and forum shopping by PRPs: 14.18
planning and reporting requirements for: 14.15
and PRP oversight: 14.4; 14.18
and records management: 15.10
andSCAP: 14.15
and SCAP targets: 14.18
and sections in a CA application: 14.9
andSMOA: 14.10; 14.11; 14.18
and SSC: 14.7
and standard planning time line: 14.18
and state challenges to RD/RA CDs: 14.18
and voluntary cleanup programs: 14.13
State and Local Governments:
and lender liability rule: 3.10-11
and limits to liability: 3.10-11
Statement of Work (SOW): 5.13; 5.18
and RI/FS implementation: 6.19-20
Statute of Limitations (SOL):
for cost recovery: 12.10
Stipulated Penalties:
in RI/FS setdement: 5.28
Superfund Comprehensive Accomplishments Plan (SCAP):
and community involvement: 13.17
and cost recovery: 12.23; Ex. 12-5; 12.32-35
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Index—xxv
andCIPs: 13.17
and Fund-lead RJ/FS: 5.24
and O&M: 10.5
and remedy selection: 7.23
and RD/RA implementation: 9.24-30
and RD/RA negotiations/setdemem: 8.10; 8.44-47
and removals: 2.25-30
in RI/FS implementation: 6.33-35
and RI/FS negotiations/settlement: 5.6; 5.25-27; Ex. 5-4, Ex. 5-5
and state involvement: 14.16-18; 14.19
Superfund Document Management System (SDMS): 15.17
Superfund Memorandum of Agreement (SMOA):
and articles: 14.11
development of: 14.10; 14.18
and state involvement: 14.10; 14.11; 14.18
Technical Assistance Grant (TAG): 13.9
Technical Review Team (TRT): see also Oversight Official; 9.7-9
Technical Review Workgroup (TRW): 7.10
Technical Support Team (TST):
and RI/FS implementation: 6.2
Toxic Substances Control Act (TSCA): 1.4
Treatability Investigations: 6.28-29
required deliverables for: 6.28-29
Tribes:
and enforcement program: 1.14
Unilateral Administrative Order (UAO):
issuance of: 2.9; 2.13
model: 2.11
to perform RI/FS: 5.17
and RD/RA negotiations/settlement: 8.4; 8.22; 8.29
for removals: 2.17
replacement with AOC: 2.21
Value Engineering (VE): 9.15
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Index-oocvi Index
Waste-in Information:
sources of: 4.24
and transactional databases: 4.24
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