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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OSKER Directive Nunber 9835.4-2A
NOV Id 1968
MEMQRAMOQM
SUBJECT: Initiation of PRP-financed Remedial Design in Advance
~ of Consent Decree Entry
FROM: j. Winston
Assistant Administrator for
Solid Waste and Emergency Response
Thomas L. Adams, Jr. C> ^-
Assistant Administrator for
Enforcement and Compliance Monitoring
TO: Regional Administrators
This memorandum addresses a process for expediting the
initiation of response work by potentially responsible parties
(PRPs) at sites where agreements with PRPs have been reached and
where PRPs will agree to begin remedial design work promptly, but
where a consent decree has not yet been entered by the court.
For PRP-financed remedial design/remedial action (RD/RA)
activities, the initiation of response work, including the
remedial design, has historically been dependent on the entry of
a consent decree. This usually means a delay of at least several
months between the time agreement is reached and when the consent
decree is entered and work actually begins. Delays in initiating
remedial designs and consequently remedial actions, are
inconsistent with EPA's effort to expeditiously remediate sites
and meet the statutory goal for remedial action starts. It is
in the interest of both the government and PRPs to begin work as
quickly as possible.
EPA's strategy is to encourage PRPs to agree to settlements
wherein engineering design work can proceed upon the lodging of a
consent decree by EPA, or where litigation is already pending,
upon execution of a stipulation, where PRPs have agreed to early
initiation of a remedial design and a complaint has not been
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OSVER Directive Number 9835.4-2A
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filed prior to the lodging of a concent docroo, the propoood
conoont docroo ohould provide for conduct of tho remedial dooign
upon lodging. Tho conoont docroo should opocify tho obligations
regarding dooign that start upon lodging. In addition, tho
conoont docroo ohould clarify that, following entry of tho
conoont docroo, thooo obligationo concerning roocdiol dooign »ro
subject to enforcement (including stipulated penaltioo) purou-nt
to tho conoont docroo retroactive to lodging. Whore a conpla^nt
hao boon filed, alternatively, a otipulation for conduct of tLo
remedial dooign any bo filed after tho ROD io oigncd, if
nogotiationo aro sufficiently well along that EPA io confident
that tho PRPo will agree to connit to conduct tho roccdy. Such a
stipulation should include schoduloo and bo enforceable by tho
court. Tho stipulation ohould specify that tho obligationo
thereunder shall bo obligatory until oxproooly ouporccdcd by any
subooquonrtly ontorod conoont docroo. Another way which io looo
preferred, but may bo uood to acconplioh thio ooco goal whore
PRPo have agreed to early initiation of a roccdial dooign, io for
EPA to ioouo an odniniotrotivo order oololy for tho remedial
dooign, leaving tho romining portiono of tho roccdial action for
a conoont docroo under Section 122 of CZBCL&. In dotomining
whether to ioouo on order for a roccdial dooign, Rcgiono ohould
conoidor tho preference for a conploto roccdial doaign/roccdial
action oottlocont and whothor it io likely that tho PBPo will not
agree to conduct tho rocodiol action.
EPA rocognizoo that there are linitod rioko in requiring the
ronodial dooign to begin prior to tho entry of a oonoont docroo.
Firot, it io conceivable that tho oottlocont will not bo agreed
upon by tho portico or ultinatoly approved by tho court, which
would require additional oxpondituroa by tho PHPo to codify tho
roncdial dooign. In kooping with tho public'a right to roviow
conoont docrooo, tho godnrjJL' Rnglntnr notice prepared by DOJ
1 Under oithor approach, roccdial dooign work would not
have to bo delayed ponding cooplotion of CZBdA Section 122 (d)
procodurco for public connont of propoocd conoont docrooo.
Conoiotont with ootobliohod Agency policy, a roncdial dooign io
conoidorc£ to bo a rccoval action, and thuo outaide tho ocopo of
Section 122(d)(l), which covoro propoocd agroacanto concerning
ronodial action undor Section 106. Thuo, while tho Agency nay
voluntarily agree to oubjoct tho torno of tho roccdial dooign
portion of a propoocd Section 106 ronodial action conoont docroo
to tho proccduroo of Section 122(d), there io no legal requirement
to do oo.
2 A Section 106 unilateral administrative order is not
subject to Section 12*2(d) requirements, oo that rooodial dosign
work could begin imaodiatoly.
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OSWER Directive Number 9835.4-2A
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should specify that certain actions are triggered by, and start
upon, lodging a consent decree or filing a stipulation. Sine*
the public will have already had the opportunity to comment on
the remedy, where the remedial design is consistent with the
reaedy, no additional comment is required. Comments should,
therefore, be directed toward the settlement itself and the risk
of remedial design modification is minimal. Second, Regions
should ensure that the FRP's remedial design, upon approval by
EPA, is acceptable for implementation by EPA in the event that
the PRPs do not agree to implement the remedial action.
Notwithstanding these risks, the requirement for early initiation
of remedial design work is important in" the context of all RD/RA
negotiations. Language requiring these actions should go to the
PRPs as part of, or along with, the draft consent decree at the
time special notice is issued. A model stipulation is attached.
The effect of this strategy will be to reduce the time
involved prior to initiation of on-site response work in those
cases where PRPs are committed to undertaking the remedial action
and willing to begin early design. This will further the
statutory and programmatic goal to facilitate remedial action
starts. For more information please contact Brad Wright in OWPE
at FTS 382-4837 or Janice Linett in OECM-Waste at ITS 475-8173.
Attachment
cc: Directors, Waste Management Division,
Regions I, XV, V, VXX, VIII
Directors, Haxardous Waste Management Division,
.Regions XXX, VX
Director, Emergency and Remedial Response Division,
Region XX
Director, Tories and Waste Management Division, Region IX
Director, Haxardous Waste Division, Region X
Regional Counsel*, Regions X-X
Superfund Enforcement Branch Chiefs
RCRVORCXA ORC Branch Chiefs
David Buente, DOJ
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OSWER Oiraccive Nuabcr 9835. 4-2A
RgMgPTXL DESIGN STIPOIATIQM AMP AGREED ORDER
UNITED STATES DISTRICT COURT
DISTRICT OF __ _
UNITED STATES OP AMERICA,
CIVIL ACTION
PLAINTIFF NO.
v.
DEFENDANTSi
AMD AGREED ORDER
Plaintiff, the United States of America, ("United States")
has filed an action under Sections 106 and 107 of the
Comprehensive Environmental Response, Compensation, and Liability
Act, as amended, 42 U.S.C. Section 9606, 9607 et seq., (CERCLA)
aaain«t ("Settling Parties").
In order to expedite the commencement of the remedial action
at the • site, which is the subject of this action,
the United States and the Settling Parties, stipulate as follows:
[The following provisions of the stipulation are provided as
examples. The provisions should be developed on a site-specific
basis and reviewed for completeness by the Region. OSWER
Directive No. 9350.0-4A "Super-fund Remedial Design and Remedial
Action Guidance* may be consulted for guidance on steps and
deliverables. State and/or Regional Remedial Project Manager
review requirements should be included as appropriate. Language
in the stipulation should closely track that used in the workplan
attached to the Consent Decree so as to eliminate any possibility
of inconsistency].
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OSWER Directive Number 9835.4-2A
A. 1) within thirty (30) days of the filing of this
stipulation the Settling Parties shall retain qualified
personnel to prepare detailed plans and specifications
for implementation of each elemenet of the selected
remedy described in the EPA Record of Decision ("ROD")
for —^^_ >ita dated .
2) Within thirty (30) days of the filing of this
stipulation the Settling Parties shall submit to the
United States for it* review and approval a detailed
schedule for the completion of the Remedial Design
including specific milestone* for submission* of plans
and specifications, set forth in the Workplan, dated
which is attached. [The stipulation should
include a specific schedule for the preliminary 30, 60,
90, and the final 100 percent design completion
milestone* as well ae any intermediate submissions that
the Region deems necessary.]
3)- The Settling Parties shall provide monthly reports to
the United States in accordance with the schedule
developed pursuant to paragraph A. 2. above, together
with all background data, analyse* end other supporting
information for review and written approval by EPA. In
the event that the United State* disapprove* of any
plan or portion thereof, it shall specify in writing
the reasons why it believes such plan or portion
thereof does not conform to the ROD or applicable law
or regulation including the National Oil and Hazardous
Substances Pollution Contingency Plan ("NCP"), 40
c.P.R. Part 300.
B. All plans and specifications shall be consistent with
applicable requirements contained in the ROD and in accordance
with CZRCLA and the NCP.
[It is .important to re-emphasize here that the above provisions
should be used as a point of departure. for framing those which
will actually be included in the stipulation. Such a stipulation
is valid only tor Remedial Deaiqn worit end will be entered into
by the United States in eon-tunction vith the lodging or
anticipated lodging of e Consent Decree for RD/RA. Actual
stipulation* made should be consistent with this definition. ]
c. The Partie* to thi* stipulation acknowledge that this
stipulation has been entered into in anticipation of settlement
and may be affected by a consent decree expected to be entered
subsequent to thi* filing. The Partie* agree to comply with the
term* of thi* stipulation unless the term* of any subsequently
entered consent decree expressly supersede the terms of this
stipulation.
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OSWER Directive Nunbcr 9835.4-2A
Stipulated by:
ROGER MARZULLA [PRP #1]
Acting Assistant Attorney [Address]
General
Land and Natural Resources _._^_^__
Division [PRP §2]
U.S. Department of Justice [Address]
Washington, D.C. 20530
THOMAS L. ADAMS, JR.
Assistant Administrator
for Enforcement and
Compliance Monitoring
U.S. Environmental Protection
• Agency
Washington, D.C. 20460
[REGIONAL ADMINISTRATOR]
[Regional Address]
[ORC ATTORNEY]
It is so ordered this _______ day of
United States District Judge
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