UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Approved date: November 3, 1988
OFFICE OF
SOLID WASTE AND EMERGENCV RESPONSE
OSWER DIRECTIVE
No. 9836. 0-1A
Retyped for Legibility: 10/7/91
MEMORANDUM
SUBJECT: Chapter 6 of the Community Relations Handbook
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators
Regions I-X
When the revised version of Community Relations in Super fund;
A Handbook went to print this summer, Chapter 6 was not yet in
final form. This Chapter, "Community Relations during Enforcement
Activities and Development of the Administrative Record", is
attached in interim final form. Please insert it into the Handbook
in lieu of the prior version (August, 1985) .
The Chapter deserves wide distribution to the technical and
enforcement branches, Office of Regional Counsel, and Office of
Public/External Affairs, as well as to States. Chapter 6 stresses
the importance of the team approach to managing community relations
at enforcement-lead sites, and discusses the concepts of
confidentiality in negotiations, public participation requirements
under SARA, and community relations coordinator responsibilities
regarding the administrative record.
Attachment
cc: Bruce Diamond, OWPE
Henry Longest, OERR
Elaine Stanley, OWPE
Lloyd Guerci, OWPE
Russell Wyer, OERR
Lisa Friedman, OGC
Glenn Unterberger, OECM
Nancy Firestone, DOJ
Regional Counsels, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Community Relations Coordinators
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OSWER DIRECTIVE 9836.0-1A
CHAPTER 6
COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES
AND DEVELOPMENT OF THE ADMINISTRATIVE RECORD
6.1 BACKGROUND AND INTRODUCTION
6.2 APPLICABILITY
6.3 OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
6.4 COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND
ADMINISTRATIVE RECORDS
6.4.A Planning Community Interviews and Developing
Community Relations Plans
1. Community Interviews
2. Community Relations Plans (CRPs) .
3. Potentially Responsible Party (PRP)
Involvement
6.4.B Enforcement Activities and Community Relations at
Remedial Sites
1. Introduction
2. Notice to PRPs
3. Negotiations
4. Community Relations Following an RI/FS Order
5. Public Notice and Comment on Consent Decrees
for RD/RA
6. Community Relations During PRP Remediation
7. Technical Discussions
6.4.C Community Relations During Removal Actions
6.4.D Community Relations During Specific Enforcement
Actions and Settlements
1. Consent Decrees, De Minimis and Cost Recovery
Settlements
2. Injunctive Litigation
3. Cost Recovery
4. Interaction with RCRA and Other Applicable
Federal and State Laws
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OSWERDIR983601B
OSWER DIRECTIVE 9836.0-1A
6.4.E The Administrative Record as Part o-f Community
Relations
1. Overview
2. Purpose of the Administrative Record
3. Community Relations Coordinator
Responsibilities for the Administrative Record
4. Additional Community Relations Coordinator
Responsibilities
5. Relationship Between the Administrative Record
and Information Repositories
6.5 Appendix: Environmental Fact Sheet, "The Enforcement
Process: How It Works"
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OSWER DIRECTIVE 9836.0-1A
COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES
AND DEVELOPMENT OF THE ADMINISTRATIVE RECORD*
6.1 BACKGROUND AND INTRODUCTION
The Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) as amended, provides the U.S. Environmental
Protection Agency (EPA) with the authority to respond-directly or
to compel potentially responsible parties (PRPs) to respond to
releases or threatened releases of hazardous substances, pollutants
or contaminants. CERCLA created two complementary programs aimed
at achieving this goal.
Under the first program a trust fund, known as the Superfund,
may be available for site remediation when no viable PRPs are found
or when PRPs fail to take necessary response actions. PRPs are
defined as parties identified as having owned or operated hazardous
substance sites, or who transported or arranged for disposal or
treatment of hazardous substances, pollutants or contaminants at
such sites. The second program provides EPA with the authority to
negotiate settlements, to issue orders to PRPs to repay the costs
of such actions when the trust fund has been used for these
purposes. The actions EPA takes to reach settlement or to compel
responsible parties to pay for or undertake the remediation of
sites are referred to as the Superfund enforcement process.
This chapter includes an overview of the CERCLA enforcement
program, and a discussion of enforcement activities, community
relations, and the administrative record. It provides specific
discussions on community interview planning and development of
community relations plans (CRPs) for enforcement-lead sites;
enforcement activities requiring public participation; community
relations during specific enforcement actions and settlements; and
the relationship between the administrative record for response
selection and community relations. The chapter is intended to
discuss only how enforcement activities should be considered during
overall community relations program planning and implementation.
In developing this chapter, the Agency refrained from repeating
information contained elsewhere in the Handbook."
This memorandum replaces current OSWER Directives 9836.0 and
9836.0-1A, and is the new Chapter 6 of the Community Relations
in Superfund: A Handbook (hereinafter referred to as the
Handbook).
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OSWER DIRECTIVE 9836.0-1A
6.2 APPLICABILITY
This policy applies to all Fund-financed, Federal enforcement,
CERCLA-funded State enforcement, and PRP-lead removal and remedial
actions, as defined in the National Contingency Plan (NCP). The
information contained in this chapter is consistent with and serves
to implement the NCP. It creates no rights and/or obligations of
any party.
6.3 OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
A primary goal of CERCLA is to compel PRPs to remediate sites
that are releasing or threatening to release hazardous substances
into the environment. The enforcement process may involve the
following major efforts.
First, EPA attempts to identify PRPs as early as possible.
Where practicable, EPA generally notifies these parties of their
potential liability for response work when the site is scheduled
for some action; EPA will then encourage PRPs to do the work.
If the PRPs are responsive and EPA believes the PRPs are
willing and capable of doing the work, EPA will attempt to
negotiate an enforcement agreement with the PRP(s). The
enforcement agreement may be an agreement entered in court (e.g.,
a judicial consent decree) or it may be an agreement signed by EPA
and the PRPs outside of court (an administrative order on consent).
Both of these agreements are enforceable in a court of law, and are
subject to EPA oversight of the work performed by PRPs.
If a settlement is not reached, EPA can use its authority to
issue a unilateral administrative order, which directs PRPs to
perform removal or remedial actions at a site. If the PRPs do not
respond to an administrative order, EPA has the option of filing a
law suit to compel performance.
Finally, if PRPs do not perform the response action and EPA
undertakes the work, EPA may file suit against PRPs to recover
money spent by EPA from the Superfund. This is known as cost
recovery, and is a major priority under the CERCLA program.
The Appendix to this chapter, a fact sheet on the enforcement
process, explains in simple terms the tools and authorities
provided by CERCLA, and the methods EPA may use to negotiate
settlements with PRPs.
EPA must strive to help communities understand Superfund
program goals and activities, including enforcement actions. In
this effort, the lead agency needs to consider the concerns of the
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OSWER DIRECTIVE 9836.0-1A
local community. By identifying community concerns, the Agency can
attempt to develop alternatives to response actions or a variation
to a remedial action plan that may better meet the needs of the
local residents.
6.4 COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND
ADMINISTRATIVE RECORDS
In fostering community relations during enforcement actions,
Community Relations Coordinators (CRCs) should follow the same
essential steps as for Fund-financed actions. The planning steps
that are critical to community relations are conducting community
interviews and developing community relations plans (CRPs). Once
the CRP has been developed, the CRC and other members of the site
team should insure that implementation follow this CRP. The
administrative record file can be used to insure that the public
knows what is happening at the site, as well as how to get involved
in determining what happens at the site. This chapter emphasizes
the enforcement aspects of these activities and recognizes the
possibility of PRP interest in participating in these and other
activities.
6.4.A Planning Community Interviews and Developing Community
Relations Plans (CRPs)
6.4.A-1 Community Interviews
In addition to general preparation for community interviews
(see Chapter 3 of the Handbook), community relations staff should
discuss the site with other Regional staff in order to identify
what special precautions, if any, should be taken in the course of
conducting the community interviews (e.g., sensitivity to pending
litigation or the political climate of the community). By
discussing the site with regional technical and legal staff in
advance of the community interviews, community relations staff can
be apprised of any situations that might impact on these
interviews. With or without viable PRPs, the Remedial Project
Manager (RPM) should participate in the community discussions.
The regional community relations staff, with the RPM or
enforcement staff, conducts discussions with different groups
before developing the CRP. It is important to note that some
interviews may already have been conducted in the community as part
of the listing process for the National Priorities List (NPL).
These discussions, however, do not replace community discussions
held during development of a CRP. The information sought during
the CRP development covers specific areas that are not necessarily
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OSWER DIRECTIVE 9836.0-1A
discussed - or asked - during the listing process. Also, CRCs are
not, nor should they be, investigators of PRP actions at the site.
During community discussions, if information is volunteered, the
CRC should advise the resident that enforcement officers will
follow up on this information.
To incorporate the full range of views, lead agency staff may
consider interviewing PRPs in the community. Every site varies and
so also do PRPs, their contribution to the site, and their standing
in the community. In some cases, only the current owner or
operator is contacted. The enforcement team for the site will
determine who to interview. This team is comprised of a CRC, the
on-scene coordinator, regional counsel, the RPM, the Enforcement
Project Manager (EPM), as well as equivalents at the State level
when the State has the lead.
6.4.A-2 Community Relations Plans
Using information obtained during the community interviews,
the lead agency develops a community relations plan (CRP) that
reflects consideration of the concerns and communication methods
preferred by the community. The CRP format is fully described in
Chapter 3 and Appendix B of the Handbook. In addition, the CRP
includes two appendices; the first presents EPA's contact list of
key community leaders and interested parties. Note that the list
of community contracts will not be in the Appendix if it contains
private citizens' addresses and phone numbers. On the other hand,
public agencies, elected officials, and local groups' addresses can
be included in the administrative record and information
repositories. The second appendix outlines suggested locations of
meetings, the administrative record and information repositories.
These are all public information.
The CRP is a critical planning tool for lead agency staff and
for the public, as it will likely reach and impact many people.
CRPs prepared for sites with viable PRPs should receive input from
all members of the enforcement team who are directly affected by
the scheduled activities in the CRP. For example, attorneys should
approve the accuracy of any legal information; the RPM or EPM
should approve the accuracy of any technical information; and the
CRC should approve the accuracy of the community relations
techniques used in the CRP. The CRC is ultimately responsible for
insuring that the community relations requirements of CERCLA/SARA
are implemented. Therefore final approval of the CRP should be by
the CRC, with concurrence on specific sections by member of the
team.
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OSWER DIRECTIVE 9836.0-1A
Coordination activities among the CRC, on-scene coordinator,
regional counsel, the RPM, and the EPM, depend on the site-specific
situation. The key initially is to plan activities and establish
procedures for reviewing information. Adequate planning should
prevent the release of information that might be detrimental to the
settlement and/or litigation process. Internal discussions with
all team members during project planning may be a useful mechanism
for guarding against such releases. This need for coordination is
perhaps the most crucial message put forth in this guidance.
Although EPA must share information about a site with the people
directly affected by the site, this information exchange should be
technical and not legalistic, and should be coordinated so as not
to jeopardize negotiations with PRPs.
Community relations activities outlined in a CRP for an
enforcement site should be consistent with the settlement process
and the likely schedule of enforcement actions. Techniques
peculiar to enforcement sites (such as the technical discussions
outlined in Section 6.4.B-7) may be identified in the CRP as
community relations activities. [Within the various sections and
appendices of a CRP, the CRC staff may with to document EPA's
approach to coordinating and sharing information with PRPs.
However, any special conditions on Agency interaction with the PRPs
should be spelled out in the administrative order or consent
decree, not in the CRP. The public must be told early if PRPs are
willing to participate in implementing the CRP. The CRC staff can
do this by preparing a fact sheet or stating this at a public
meeting.] Discussions about the PRPs prior to signing a consent
agreement, however, can cause delays in the negotiations. It is
preferable to delay discussing details of PRP involvement with the
site until some agreement is signed or action taken. If the PRPs
are to be a part of the community relations program early comments
can cause tension and mistrust between Agency staff and the PRP.
Assuming a site has not been referred for litigation, the CRP
only needs to inform the public of the possibility of litigation.
CRC staff may choose to describe the litigation process, and
discuss the potential effects of litigation on the scope of
community relations activities. If the site is referred later for
litigation, the CRP is to be modified to provide that statements
about the litigation, other than public information that can be
ascertained from court files, must be cleared with the Department
of Justice before issuance. The regional counsel team member will
be the 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 this could have on
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OSWER DIRECTIVE 9836.0-1A
community relations activities. When referral fo'r litigation is
the initial enforcement action, the original community relations
plan should specify the activities that are to be conducted during
litigation, to the extent they can be determined at that time.
Section 6.4.D-2 of this policy discusses the litigation process.
6.4.A-3 Potentially Responsible Party (PRP) Involvement
EPA is the lead agency for developing and implementing
community relations activities at an EPA "PRP-lead" site. A PRP
may assist in the implementation of community relations activities
at the discretion of the Regional office. The Regional office,
however, will oversee PRP community relations implementation.
Specifically, PRPs may be involved in community relations
activities at sites where they are conducting either the remedial
investigation/feasibility study (RI/FS), or the remedial
design/remedial action (RD/RA), or both. If a PRP will be involved
in community relations activities, the CRP should reflect that
involvement. In these cases, the PRPs may wish to participate in
public meetings, or in the preparation of fact sheets. EPA,
however, will not "negotiate" the contents of press releases with
PRPs.
When complete and final, the CPR should be provided to all
interested parties, and placed in the administrative record file
and information repository for the particular site. If the CRP is
revised, the final revised copy should be made available to the
public, and placed in the administrative record file and the
information repository, as well.
6.4.B Enforcement Activities and Community Relations at
Remedial Sites
The following subsections present an overview of the notice
process leading to the initiation of RI/FS or RD/FA negotiations,
community relations following an RI/FS order, public comment on
RD/RA consent decrees, community relations during PRP remediation,
and technical discussions.
6.4.B-1 Introduction
Community relations activities should be planned as early in
the process as possible. Generally, this occurs before the RI/FS
special notice, which is discussed below. Meetings with small
groups of citizens, local officials and other interested parties
are extremely helpful for sharing general information and resolving
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OSWER DIRECTIVE 9836.0-1A
questions. These meetings also may serve to provide information on
EPA's general enforcement process, perhaps through distribution of
the fact sheet attached to this guidance. A discussion of how EPA
encourages settlements may be appropriate at this time.
Litigation generally does not occur until after the remedy is
selected (after the moratorium period that begins when the special
notice for RD/RA ends, as discussed below). EPA staff, however,
may need to explain early in the process that legal constraints may
apply during negotiations or litigation with respect to community
relations activities.
6.4.B-2 Notice to PRPs
Notice letters are used to inform PRPs of their potential
liability and provide an opportunity for them to enter into
negotiations, which are intended to result in PRPs conducting or
financing response activities. The negotiation process may include
"informal" and "formal" negotiations.
EPA has established a discretionary three-step notification
process to facilitate and encourage settlements at remedial sites.
First, well before the RI/FA starts, EPA usually sends a general
notice to PRPs. Second, a special notice for the RI/FS may be sent
in appropriate circumstances. Third, a special notice for the
RD/RA may be sent, where appropriate.
The general notice advises PRPs of possible liability. The
special notices initiate formal negotiations and invoke a
moratorium on EPA conducting the RI/FA or response action, while
encouraging PRP participation in response activities at a site.
For remedial sites, RI/FS special notices should be issued at least
90 days before EPA plans to obligate Fund money for the RI/FS. For
an RD/RA, the preferred approach is to issue special notices at the
time the FS and proposed work plan are released for public comment,
although notice may be issued after the Record of Decision (ROD) is
signed. Once the special notice is sent, a 60-day moratorium on
EPA's conduct of certain response activities is triggered. If a
"good faith" offer is not received within 60 days, EPA may proceed
with its own RI/FS or removal, or take enforcement action against
the PRP. If a good faith offer is received, EPA's goal is to
conclude RI/FS negotiations with an administrative order on consent
within 90 days of the RI/FS special notice. RD/RA negotiations are
targeted for conclusion with an RD/RA consent decree within 120
days of the RD/RA special notice. These are statutory moratorium
periods. The timeframe for the RD/RA special notice moratorium may
be extended for 30 days by the Regional Administrator and beyond
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OSWER DIRECTIVE 9836.0-1A
that by the Assistant Administrator, OSWER. Special educational
efforts should be conducted prior to negotiation/moratorium to warn
the public that little if any information will be available to the
public during negotiations (see below).
Detailed guidance on issuance of notice letters is discussed
fully in the "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19, 1987), 53 FR 5298 (OSWER
Directive #9834.1).
6.4.B-3 Negotiations
Negotiations are generally conducted in confidential sessions
between the PRPs and the Federal government. Neither the public,
nor the technical advisor (if one has been hired by a community)
may participate in negotiations between EPA, DOJ and the PRPs
unless everyone agrees to allow such participation. Otherwise the
ability of the parties to assert confidentiality at some later date
may be affected.
The confidentiality of statements made during the course of
negotiations is a well-established principle of our legal system.
Its purpose is to promote a thorough and frank discussion of the
issues between the parties in an effort to resolve differences.
Confidentiality not only limits what may be revealed publicly,
but also ensures that offers and counter-offers made in the course
of negotiations may not and will not be used by one party against
the other in any ensuing litigation.
Potentially responsible parties may be unwilling to negotiate
without the guarantee of confidentiality. They may fear public
disclosure regarding issues of liability and other sensitive issues
which may damage their potential litigation position or their
standing with the public. This expectation of confidentiality
necessarily restricts the type and amount of information that can
be made public.
CRC staff should consult with ant obtain the approval of other
members of the technical enforcement and regional counsel team
before releasing any information regarding negotiations. If the
site has been referred or is in litigation, DOJ approval should
also be obtained. In lieu of direct participation by the public in
negotiation sessions, the CRC staff may wish to sent out the fact
sheet on the Superfund enforcement process attached to this
guidance, along with the moratorium schedules for that specific
site.
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OSWER DIRECTIVE 9836.0-1A
6.4.B-4 Community Relations Following an RI/FS Order
As discussed above, RI/FS settlements usually are resolved as
administrative orders on consent. For remedial sites, an RI/FS
workplan is a trigger for implementation of community relations
activities. When the workplan is complete, a "kick-off" meeting
with the public may be conducted in order to present the final
workplan and explain the next steps. If held, CRP staff should
make it clear that EPA approved the workplan; announce how the PRP
will be performing the RI/FS; explain EPA's oversight role; discuss
the enforcement process and confidentiality requirements; and
explain where EPA's record files will be/or are located. As
discussed in section 6.4.E, the administrative record file will be
available at a central regional location, and at or near the site.
Since it contains information which the lead Agency uses in
selecting a final remedy, the administrative record file should be
used as a tool to facilitate public involvement.
Once the RI/FS has been completed, the agency will issue the
proposed remedial action plan, and publish a notice announcing a
public comment period. At a minimum, the notice must be published
in a major local newspaper of general circulation. A formal
comment period of not less than 21 calendar days must be provided
for the public to submit oral and written comments. Note that
proposed revisions to the National Contingency Plan (NCP) suggest
extending this to not less than 30 calendar days.
An opportunity for a public meeting is also required to be
offered during the comment period, as well as a transcript of the
meeting on the proposed plan. The transcript must be made
available to the public in the administrative record, and may be
distributed in the information repositories and on request. See
Chapter 4 of the Handbook for a complete outline of these specific
public participation requirements.
Once the public comment period on the proposed plan has
closed, a responsiveness summary is prepared which serves two
purposes. First, it provides lead agency decision-makers with
information about community preferences regarding both the remedial
alternatives and general concerns about the site. Second, it
demonstrates to members of the public how their comments were taken
into account as an integral part of the decision-making process.
A Record of Decision (ROD) is then issued by EPA as the final
remedial action plan for a site. Both the ROD and the
responsiveness summary will be placed in the administrative record
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OSWER DIRECTIVE 9 8 3 6.0-1A
file and other information repositories. In addition, the
responsiveness summary may be distributed to all those who
commented and to the entire site mailing list. See Chapter 4 of
the Handbook for further information on requirements for public
notice and availability of the ROD and responsiveness summary.
6.4.B-5 Public Notice and Comment on Consent Decrees for RD/RA
If a negotiated settlement for remedial action under CERCLA
section 106 is reached, it will be embodied in a proposed consent
decree (to be entered by a court). CERCLA section 122(d)(l)
requires the use of consent decrees as the vehicle of agreement
between the Federal Government and PRPs on remedial actions taken
under section 106 of CERCLA. CERCLA section 122 contains specific
public participation requirements. The Department of Justice
lodges (provides a copy of) the consent decree with the court,
publishes a notice of the proposed consent decree in the Federal
Register, and offers an opportunity for non-signatories to the
agreement to comment on the proposed consent decree before its
entry by the court as a final judgment. The public comment period
must not be less than 30 calendar days in length and may be
extended if warranted. The proposed consent decree may be
withdrawn or modified if comments demonstrate it to be
inappropriate, improper or inadequate.
In order to ensure that public comment opportunities are
extended to interested parties, EPA staff routinely prepare a press
release to be issued after the consent decree has been lodged as a
proposed judgment with the court. DOJ should notify the regional
counsel for the particular site and provide a copy of the Federal
Register notice of the decree. Regional counsel will assure that
the RPM and CRC are informed of this event. CRC 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 that copies of the consent decree document may be
obtained, including its location and that of any other relevant
documents. The procedures for public comment on the consent
decree, as well as a contact name for obtaining further
information, should also be announced. The public notice and press
release for the consent decree may be combined, if appropriate.
The ROD and responsiveness summary have usually been made
public by this time. However, inasmuch as comments previously were
requested on the proposed plan, comments are requested only on the
consent decree. Communications with the public should focus on the
remedial provisions of the settlement agreement. Details of the
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OSWER DIRECTIVE 9836.0-1A
negotiations, such as the behavior, attitudes, or legal position of
PRPs, any compromises incorporated in the settlement agreement, and
evidence or attorney work-product material developed during
negotiations, must remain confidential.
If a negotiated settlement 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, and be
held jointly with, the comment period for the consent decree.
A public meeting may be held during the public comment period,
at the site team's discretion. Regional staff must offer the
opportunity for a public meeting when there are significant
community issues or contents, or for other reasons which are
determined by and based upon the judgment of EPA regional staff.
If held during the public comment period, these meetings need to be
documented, and significant oral comments received during meeting
must be addressed in the responsiveness memorandum on the consent
decree.
Once the public comment period on the proposed consent decree
has closed, DOJ staff (in cooperation with EPA staff) must consider
each significant comment and write a response. Assuming that EPA
and DOJ continue to believe the decree should be entered, DOJ will
then file a Motion to Enter with the court, the responsiveness
memorandum, the comments received, and the consent decree itself.
The responsiveness memorandum and motion to enter the consent
decree are released to the public at the same time. The Regional
team will use information repositories, administrative record
files, and/or other means to make these documents available to the
public.
6.4.B—6 Community Relations During PRP Remediation
EPA retains responsibility for community relations during a
PRP-managed remedial action pursuant to a consent decree or any
enforcement order. The scope and nature of community relations
activities will be the same as for Fund-lead response actions.
When PRPs participate in community relations activities at the
site, EPA and PRP roles need to be determined and explicitly
defined. When a PRP has not been involved in the initial stages of
implementing the community relations plan, but shows sufficient
interest, commitment and capability to warrant some level of
participation, EPA should re-evaluate its role in conducting
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community relations activities. In that case, a new CPR may be
developed at the discretion of the regional team. PRP roles in
conducting community relations may also be addressed in the consent
decree or other enforcement orders.
6.4.B-7 Technical Discussions
Technical meetings are considered informational, and provide
orientation to the enforcement process. One of the objectives in
holding technical meetings is to describe, instruct, and explain
how the remedy may or will (depending on whether a ROD has been
signed) address the conditions of the site. Workshops exploring
the approach to the site and project status, can occur at any point
up to and beyond remedy selection. If held during RI/FS or RD/RA
negotiations, they should be separated from the legal discussions.
The RPM may host a technical discussion without PRP concurrence;
however, willingness by the PRPs to participate may facilitate a
more open and honest dialogue with the community.
Technical information must be documented and available for the
public in the administrative record file. Technical or factual
information which comes up during negotiations should also be
included in the administrative record file. Issues of liability,
however, are appropriately discussed only during negotiations
between EPA and PRPs, and should not be included in the
administrative record file.
Technical assistance grants are authorized under section
117(e) of CERCLA, which allows EPA to make grants available to
communities affected by a release or threatened release at an NP1
site. Community groups may use these grants to obtain assistance
in interpreting technical information on the nature of the hazard
and recommended alternatives for investigation and cleanup.
6.4.C Community Relations During Removal Actions
EPA will encourage public participation during removal actions
to the extent possible. However, there will be times when this
participation may need to be constrained. The NCP, the Handbook,
and Removal Procedures establish the requirements for removal
actions, including administrative record requirements.
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, which would usually
be embodied in an administrative order on consent. EPA also may
issue a unilateral administrative order to compel a PRP to
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community relations activities. In that case, a new CPR may be
developed at the discretion of the regional team. PRP roles ,in
conducting community relations may also be addressed in the consent
decree or other enforcement orders.
6.4.B-7 Technical Discussions
Technical meetings are considered informational, and provide
orientation to the enforcement process. One of the objectives in
holding technical meetings is to describe, instruct, and explain
how the remedy may or will (depending on whether a ROD has been
signed) address the conditions of the site. Workshops exploring
the approach to the site and project status, can occur at any point
up to and beyond remedy selection. If held during RI/FS or RD/RA
negotiations, they should be separated from the legal discussions.
The RPM may host a technical discussion without PRP concurrence;
however, willingness by the PRPs to participate may facilitate a
more open and honest dialogue with the community.
Technical information must be documented and available -for the
public in the administrative record file. technical or factual
information which comes up during negotiations should also be
included in the administrative record file. Issues of liability,
however, are appropriately discussed only during negotiations
between EPA and PRPs, and should not be included in the
administrative record file. . .
Technical assistance grants are authorized under section
117(e) of CERCLA, which allows EPA to make grants available to
communities affected by a release or threatened release at an NP1-
site. Community groups may use these grants to obtain assistance
in interpreting technical information on the nature of the hazard
and recommended alternatives for investigation and cleanup.
6.4.C Community Relations During Removal Actions
EPA will encourage public participation during removal actions
to the extent possible. However, there will be times when this
participation may need to be constrained. The NCP, the Handbook,
and Removal Procedures establish the requirements -for removal
actions, including administrative record requirements.
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, which would usually
be embodied in an administrative order on consent. EPA also may
issue a unilateral administrative order to compel a PRP to
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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.
By their nature, the situations that require emergency
removals do not allow for extensive public involvement.
Adjustments to the community relations process must, be made to
accommodate necessary time constraints. It is proposed in the
draft NCP that a public comment period of at least 30 days be
required for removals with a planning period of at least 6 months
before the initiation of on-site activity. For removals with a
planning period of less than 6 months before the initiation of on-
site activity, a public comment period may be held where
appropriate. The public comment period, if held, begins when the
file is made available for public inspection.
A unilateral administrative order or administrative order on
consent is a public document and should be made available to the
affected community at a minimum, through the administrative record
file. In addition, community relations staff should discuss the
terms of the order with and describe the removal action to
citizens, local officials, and the media. If the PROP subsequently
fails to respond to the order, any public statements or information
releases regarding the status of actions at the site or prospective
EPA actions should first be cleared with appropriate Regional
technical and legal enforcement personnel.
Community relations activities during removals conducted by
PRPs should be the same as for Fund-financed removals. PRPs may
participate in community relations, subject to the same
considerations described previously in this guidance under Section
6.4.A-3.
6.4.D Community Relations During Specific Enforcement Actions and
Settlements
6.4.D-1 Consent Decrees. De Minimis and Cost Recovery Settlements
Under section 122(d)(l) of CERCLA, settlements for remedial
action are to be in the form of consent decrees filed in Federal
court. Section 122(d)(2)(B) required DOJ to provide an opportunity
for public comment on proposed consent decrees. This concept is
discussed in section 6.4.B-5.
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Section 122(1) of CERCLA requires the lead Agency to publish
a notice of proposed settlement, for both administrative orders on
consent under section 122(g)(4) (de minimis settlements), and under
section 122(h) (cost recovery settlements/arbitration). The notice
published in the Federal Register must identify the facility
concerned and the parties to the proposed settlement.
A public comment period of not less than 30 days is required
for these agreements. Regional staff should provide notice (e.g.,
a press release notice to persons on the site mailing list or an ad
in the newspaper of local circulation) to supplement the Federal
Register notice. The press release should provide a contact for
further information.
The lead agency with jurisdiction must consider any comments
filed, and determine if the proposed settlement requires
modification where comments demonstrate that the proposed agreement
is inappropriate, improper or inadequate, or can become effective
without change. The final settlement and the response to comments
must be released at the same time and be made available to the
public. This can be accomplished by placing both documents in the
administrative record file. The response to comments document
(responsiveness summary) should also be sent directly to those who
commented. PRPs who are party to the settlement will receive
notice from the Agency that the agreement will go into effect
unchanged or that modifications are required. A statement that the
responsiveness summary may be obtained from the administrative
record file or upon request should be added to this notice.
6.4.D-2 Inlunctive Litigation
At any point in the enforcement process, a case may be
referred to DOJ for litigation, and community relations activities
may change in scope. Referral is likely to occur most frequently
for RD/RA after the moratorium has concluded. If litigation is
initiated early in the enforcement process, the CPR for the site
may need to be modified substantially. If litigation is initiated
late in the process (e.g., after the conclusion of the RD/RA
special notice moratorium), the plan will require only the addition
of the litigative process.
When a case has been referred to DOJ, community relations
activities at the site should be re-evaluated by the site team, and
changes necessary to accommodate confidentiality should be agreed
upon by the site team, including DOJ. While strong consideration
should be given to implementing the plan as developed and
previously approved, the litigation process may require changes in
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public disclosure. For example, the court may impose a gag order
or place restrictions on information releases during negotiations
or any meetings with the public to discuss potential site remedy.
Under these circumstances, the DOJ attorney will advise the site
team on how to proceed.
6.4.D-3 Cost Recovery
If a Fund-financed cleanup is conducted, EPA may initiate
litigation to recover the costs of response. Since cost recovery
generally follows removal actions or initiation of remedial action,
community interest in the site usually will have lessened, unless
other operable units remain to be addressed.
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 EPA cost-recovery team, which will prepare a
response subject to the concurrence of DOJ.
6.4.D-4 Interaction with RCRA and Other Federal and State Laws
rfif
On May 5, 1987, the Office of Solid Waste and Emergency
Response issued guidance for public involvement in RCRA section
3008(h) actions (OSWER Directive #9901.3). This guidance
establishes the process for public involvement in actions taken
under section 3008(h) of RCRA.
Section 3008(h) of RCRA, the interim status corrective action
authority, allows EPA to take enforcement action to require cleanup
at a RCRA interim status facility when the Agency has information
that there has been a release of hazardous waste or hazardous
constituents. Two orders will frequently be used to implement the
cleanup program. The first order requires the facility owner or
operator to conduct a Corrective Measure Study/RCRA Facility
Investigation (RFI/CMS), similar to the RI/FS. Once the remedy has
been selected, a second order requires design, construction, and
implementation of that remedy.
The RCRA guidance outlines both minimum public involvement
requirements and expanded public involvement suggestions. In many
ways the RCRA guidance uses procedures and ideas drawn from the
Superfund community relations program. Thus, coordination between
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Superfund and RCRA personnel at sites where actions under both
CERCLA and RCRA are anticipated is appropriate. Superfund CRCs may
want to become familiar with this guidance and with the RCRA Public
Involvement Coordinators to ensure that the Agency presents a
coordinated approach.
Familiarity with other Federal or state laws such as the Clean
Air Act, Clean Water Act, etc. will generally make the role of the
CRC easier, for frequently many media are represented at a
hazardous waste site. A general knowledge of Federal or State
requirements may help the CRC in conversing with the public.
6.4.E The Administrative Record As Part of Community Relations
6.4.E-?! Overview
Section 113(k)(l) of CERCLA requires the establishment of an
administrative record upon which the selection of a response action
is based. It also requires that a copy of the administrative
record be located at or near the site. Section 113(k)(2) of CERCLA
requires that the Agency promulgate regulations outlining
procedures for interested persons to participate in developing the
administrative record. The Agency is addressing these statutory
requirements through revisions to the NCP and through the
development of a guidance document.
Throughout the decision-making process, from remedial
investigation to selection of remedy, the administrative record
file will be available for public inspection at a central regional
location and at or near the site. The information in the file is
crucial to the public in that it contains the information upon
which the lead Agency bases its decisions toward selecting a final
remedy. Community relations staff -should use the administrative
record file as a tool for facilitating public involvement.
Publicly-available documents concerning response selection
must be made available to all interested parties at the same time.
EPA staff should avoid situations where local residents are
provided opportunities to review and comment on site information
and other members of the public are not provided the same
opportunity. Similarly, if EPA requests PRPs to review a plan, EPA
should enable other members of the public to review that plan as
well. When a kick-off meeting is scheduled to explain the final
workplan and obtain opinions, the public, including residents and
PRPs, should be invited.
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OSWER DIRECTIVE 9836.0-1A
The administrative record file and CRP for a remedial action
should be made available to the public no later than the time the
remedial investigation phase begins, which is usually when the
RI/FS workplan is approved. The timing for establishing the
administrative record file for a removal action will depend on the
nature of the removal.'"^s proposed in the draft 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 (EE/CA), or its equivalent, is available for public
comment. For removals with a planning period of less than six
months, the record file must be available to the public no later
than 60 days after the initiation of on-site cleanup activity.
6.4.E-2 Purpose of the Administrative Record
The administrative record has a two-fold purpose. 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 administrative record file. Second, if the
Agency is challenged concerning the adequacy of a response action,
judicial review of a response action selection will be limited to
the administrative record. By limiting judicial review to the
record, a court's review is based upon the same information that
was before the Agency at the time of its decision. The public
should be advised that their comments must be submitted in a timely
manner in order to be considered.
6.4.E-3 Community Relations Coordinator Responsibilities for the
Administrative Record
The OSC/RPM and regional attorney, with the support of the
administrative record coordinator, are responsible for deciding
which documents are to be included in the administrative record,
and ensuring its adequate compilation and maintenance. The
Regional Administrator or his designee is responsible for the
certification of the record for litigation. CRCs will have some
general duties in developing the record file, but every region has
defined different roles. In general, however, the CRC duties will
center on the relationship of the administrative record file to the
information repositories, public notices and public comments.
First, CRCs and administrative record staff must coordinate
the location of the administrative record file and information
repositories. The statute requires that the administrative record
be available at or near the facility at issue, and that information
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be available for public inspection and copying. If the information
repository does not contain a copying facility, the Region or State
may want to make arrangement for copying the record file. EPA,
however, is not required to copy the information for interested
persons.
Second, the notice of availability for the administrative
record must be published in a major local newspaper of general
circulation. A copy of the public notice must also be placed in
the administrative record file and may be made available to the
public through the community relations mailing list. (See the
Overview section above for a discussion of when the administrative
record file must be made available to the public.) This notice may
be combined with other notices of availability depending on the
timing of activity at a site, e.g. , a notice of availability of the
information repository. Where appropriate, a notice of
availability of the record file or of commencement of the public
comment period may be published in the Federal Register. The
public is not notified each time a document is added to the record
file. These notices should be coordinated between the CRC and
administrative record staff in order to use resources most
efficiently. For a more complete discussion of the notice of
availability, see the Guidance on Administrative Records for
Selection of CERCLA Response Actions (OSWER Directive #9833.3A).
Third, the completed CRP must be placed in the administrative
record file. Community Relations Coordinators must advise the
Administrative Record Coordinator that the CRP is final and provide
him/her with a copy.
Fourth, information contained in records of communication that
were generated by the community relations staff and considered or
relied on in selecting a response should be included in the record
file. In addition, Superfund CRCs should take appropriate steps to
ensure that any community relations documents that are required to
be placed in the administrative record file are provided to the
Regional official responsible for the record file.
Fifth, the text of all comments, criticisms and new
information submitted by the public, including PRPs, during the
public comment period must be included .in the record file. A
response to all significant comments (i.e., the responsiveness
summary) must also be placed in the administrative record file.
The responses may be combined by subject or other category in the
record file.
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The record file should reflect the Agency's consideration of
all significant public comments. The Agency has no duty to respond
to comments it receives during a formal comment period until the
close of that formal public comment period. If the Agency chooses
to respond to a comment made prior to a formal public comment
period, the response must be included in the record file. The
Agency may suggest that comments submitted prior to a formal public
comment period be resubmitted during the comment period if the
commenter desires a response. Or the Agency may notify a commenter
that the Agency will respond to the comment in a responsiveness
summary prepared at a later date.
Comments which are received after the formal comment period
closes and before the decision document is signed should be
included in the record file but labeled "late comment." Since a
responsiveness summary may already have been prepared at this
point, the Agency must respond to late comments only if they
contain significant new information not contained elsewhere in the
administrative record which could not have been submitted during
the public comment period, and which substantially support the need
to significantly alter the response action.
Comments received after the decision document is signed should
be placed in a post-decision document file. They may be added to
the record file if: the documents concern issues relevant to the
selection of the response action that the decision document does
not address or reserves to be decided at a later date; or where
there is a significant change in a response selection which is
addressed either by an explanation of significant differences, or
in an amended decision document. The Guidance on Administrative
Records cited above gives additional information in this regard.
6.4.E-4 Additional Community Relations Coordinator
Responsibilities
Because of regional differences CRCs may have additional,
general responsibilities, including:
Assessing the impact of the administrative record file on
local information repositories by consulting with
officials at the repositories. This must be done in
coordination with the Administrative Record Coordinator.
CRCs should advise the public where the administrative
record file is located.
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Providing the Administrative Record Coordinator with
information as to how to notify the public of the
availability of the record file. This notification may
be in addition to the newspaper notice.
Making available the transcript of the local meeting on
the proposed plan, as required under section 117(a) of
CERCLA.
Providing assistance of the Administrative Record
Coordinator to ensure that final comments made by EPA on
important documents generated by the State or a Federal
facility are documented in writing and submitted to the
State or Federal facility staff for inclusion in the
administrative record file. States and Federal facility
staff will compile and maintain the administrative record
files for those sites.
All staff involved in Superfund activities must become familiar
with the administrative record requirements.
6.4.E-5 Relationship Between the Administrative Record and
Information Repositories
Section 113(k)(l) of CERCLA requires that "the administrative
record shall be available to the public at or near the facility at
issue." Duplicates of the administrative record may be placed at
any other location. The original files concerning response action
selection should be located at the EPA Regional office. A copy of
these files must be located at or near the site. The draft NCP
proposes that an exception be made for emergency removal actions
where on-site activities cease within 30 days of initiation.
Section 117(d) of CERCLA requires that "each item developed,
received, published, or made available to the public under section
117 shall be available for public inspection and copying at or near
the facility at issue." These items are generally included in the
information repository.
The administrative record file at or near the site at issue
should be located at one of the information repositories that
already may exist for community relations purposes. The
information repository, maintained by the Community Relations
Coordinator, may contain additional information of interest to the
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public, that is not necessarily part of the administrative record
file (e.g., press releases and newspaper articles). Documents in
the administrative record file should be separated from the other
materials in the information repository.
EPA typically uses local libraries, town halls, and public
schools as locations for establishing repositories and
administrative record files because they are publicly accessible.
In some instances, the volume of information available for
community relations and administrative record purposes may be
larger than the capacity of these locations. Where the space of
the information repository is inadequate for supporting the
administrative record file, an alternate location for the
administrative record file should be established. Administrative
Record Coordinators should estimate the volume of information
expected to be included in the repository and meet with appropriate
local officials to discuss space requirements. In some situations,
separate locations may have to be established. Administrative
Record Coordinators and CRCs must inform one another of any
additional information placed in these separate locations to ensure
uniformity. CRCs should carefully review their responsibilities
for the administrative record (Section 6.4.E-3).
Each administrative record file must be indexed. This index
identifies all the documents which comprise the record file, and
lists those documents which do not have to be present in the record
file because of their voluminous nature (raw data for example) , but
which are considered part of the record. Their location must be
provided. This index is part of the record file and must be
available at each record file location.
Finally, interested parties should be able to easily find the
document(s) they need. Documents in the administrative record file
should be well organized. The CRC and administrative record staff
should coordinate with the State in closing information
repositories and record files at the end of operation and
maintenance, and following a five-year review.
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