x>EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9200.3-02
TITLE: Implementation Stratagy for Reauthorized Superfund:
Short Term Priorities for Action
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
} FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
October 24, 1986
October 24, 1986
OERR/IO
OS WER OS WE Ft OS WER
/£ DIRECTIVE DIRECTIVE D
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SEPA
United States Environmental Protection Agency
Washington. OC 20460
OSWER Directive Initiation Request
1. Directive Number
9200.3-02
2. Originator Information
Name of Contact Person
:iem L. Rastatter
Mail Code
WH 548
Office
OERR/IO
Telephone Number
382-2180
3. Title
[mplementation Strategy for Reauthorized Superfund: Short Term Priorities for Action
4. Summary of Directive (Include brief statement of purpose}
First in a series of memoranda that provides direction for implementing the new Superfund
arogram under the Superfund Amendments and Reauthorization Act of 1986 (SARA). Provides
asic instructions on the initial priorities for program implementation and considera-
tions that must be taken into account under SARA. Specifically addresses the management
of ongoing response actions (remedial and removal. Fund and enforcement) affected by SARA.
5. Keywords
Superfund. CERCLA, reauthorization i
lementation. program planning, SARA
6a. Does this Directive Supersede Previous Directive(s)?
No What directive (number, title)
b. Does It Supplement Previous Directivefs)? Q Yes X}Q No What Directive {number. Me)
. Draft Level
Q A — Signed by AA/DAA
Da-Si
Signed by Office Director
DC-
For Review & Comment
D
In Development
his Request Meets OSWER Directives System Format
. Signature of
Office Directives Coordinator
i. Name and Title of Approving Offio/al
J. Winston Porter, Assistant Administrator, OSWER
Date
October 24, 1986
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
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9200.3-02
-2-
careful consideration of the impact of SARA in a manner designed to mini-
mize program disruption. The other track will involve initiating new work,
as well as further refinement of our understanding of the SARA provisions.
This is the first in a series of raemos that will provide direction for
implementing the new Superfund program. Many of you will encounter policy
issues in advance of guidance. Questions you face in the field will help
drive our priorities for providing such guidance. I ask that you move for-
ward aggressively to implement the new program and not wait until all the
questions have been answered.
When you encounter an unresolved issue that may have national policy
implications, please consult with the Headquarters contact appropriate to
that issue. I have attached a list of contacts to assist in key areas.
The new Superfund will be a great challenge for all of us. It will
require close working relationships within EPA, as well as with other Federal
agencies, State and local governments, citizens groups, contractors, and
industry. It will be imperative that we show major results with the program
and funds entrusted to us. I look forward very much to working with all of
you on this very important endeavor.
Attachment
cc: Administrator
Deputy Administrator
Associate Administrator for
International Activities
Associate Administrator for
Regional Operations
Assistant Administrator for
Administration & Resources Management
Assistant Administrator for
Enforcement & Compliance Monitoring
General Counsel
Assistant Administrator for
Policy, Planning & Evaluation
Assistant Administrator for
External Affairs
Inspector General
Assistant Administrator for
Water
Assistant Administrator for
Air & Radiation
Assistant Administrator for
Pesticides & Toxic Substances
Assistant Administrator for
Research & Development
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. Z0460
OCT 24
wf •. -» _- ^_ OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
9200.3-02
MEMORANDUM
SUBJECT: Implementation Strategy for Reauthorized Superfund:
Short Term Pri.orJ.ties for Action
x-i>
FROM: J. Winston Sorter
Assistant Administrator
TO: Regional Administrator, Regions I - X.
Regional Counsel, Regions I - X
Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Environmental Services Division Directors
Regions I, VI, and VII
On October 17, 1986, the President signed the Superfund Amendments and
Reauthorization Act of 1986 (SARA) amending the current "Superfund" law and
enacting certain additional provisions. The attached transition guidance
provides basic interpretations and instructions with respect to SARA.
SARA continues the process and program that was put in place with the
revised National Contingency Plan (NCP) in November 1985. It contains a
number of new provisions, however, that give statutory emphasis to some
aspects of the existing program, or that add important new considerations.
In, addition, the new law requires the Agency to meet mandatory schedules for
initiating and completing various remedial activities, and challenges us to
efficiently manage a program that is much larger in size and scope.
As we move ahead with the new Superfund program, I want us to proceed
along two tracks. The first involves strong emphasis on finishing work
currently in the pipeline, particularly those projects in the final implemen-
tation phases. Completion of this and other ongoing work must incorporate
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uui ^4 1986
9200.3-02
CERCLA REAUTHORIZATION TRANSITION GUIDANCE
I. SCOPE OF GUIDANCE
This guidance specifically addresses the management of on-
going response actions (remedial and removal, Fund and enforcement)
affected by the SARA. Although SARA includes a number of other
new authorities (such as Emergency Planning and Community Right
to Know) that are effective immediately, these provisions will be
largely addressed in separate memoranda and guidance documents.
This document paraphrases some sections of the new law. Such
paraphrasing is not meant to be interpretive of legislative language
nor does it summarize complete sections of the law that may them-
selves be very lengthy. Please carefully review the attached
summary and the actual provisions in order to understand fully the
legislation.
This guidance is organized as follows:
I. Scope of Guidance
II. Effective Date of Provisions
III. Removal Program Provisions and Priorities
IV. Remedial Program Provisions and Priorities
V. Enforcement Program Provisions and Priorities
VI. Cross Cutting Provisions
VII. Impact on Delegations
[I. EFFECTIVE DATE OF PROVISIONS
All provisions of the new statute took effect on the date
of enactment (October 17, 1986) unless otherwise specified by law.
One area, however, where previous Agency decisions are "grand-
fathered" is with respect to records of decision (RODs) and consent
decrees [§121(b)(1)].
A. Signed RODs and Consent Decrees - Prior to and within 30 Days
of SARA
RODs signed or consent decrees lodged prior to the date of
enactment are not required to meet hew requirements of $121
(Clean-up Standards) unless the record of decision is reopened
after the date of enactment to modify the remedy ($121(b)(1)].
An Enforcement Decision Document (EDD) is the functional equivalent
of a ROD; therefore the effective date provision applies to all
signed EDDs, as well as RODs, where public participation was equiv-
alent to that provided for RODs. (Where the EDD resulted in a
consent degree, the grandfathering provision, of course, applies.)
In the future, all selections of remedies for fund and enforcement
lead sites will follow the ROD process.
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9200.3-02
For RODs signed or consent decrees lodged within 30 days of
date of enactment, EPA must certify in writing that the portion of
the remedial action covered by the ROD or consent decree complies
to the maximum extent practicable with §121 of the new law [§121
(b)(2)]. The certification responsibility is given by statute
to the Administrator. Regions should consult with their Head-
quarters' contacts and take active measures to ensure that this
certification can occur at the time of ROD signature.
B. RODs signed or Consent Decrees Lodged 30 days after SARA
RODs not signed within 30 days of enactment are required to
comply fully with all new SARA provisions. In considering the
new provisions, Regions should recognize that while cost effective
remedies which protect human health and the environment continue
to be required, the statute places a greater emphasis on the per-
formance, long-term protectiveness and reliability of remedial
actions. [See Section IV; Remedial Program Provisions.]
C. Implementation Considerations; Signed RODs for Operable Units
Projects in the design and construction phase at the time of
enactment are the highest priority for Agency actions (see Section
IV; Remedial Program). However, before proceeding, Regions should
examine whether additional RODs are planned and assess the overall
remedial strategy to ensure that future operable units are consis-
tent with the new SARA requirements.
III. REMOVAL PROGRAM CONSIDERATIONS AND PRIORITIES
A. New Provisions '
Three significant provisions of the new law are effective
immediately and may have an impact on on-going and future removal
operations.
1. Time and Dollar Limits
The new law raises the time and dollar limits for removal
operations from six months and $1 million to twelve months and
$2 million [§104(e)(1)]. Although new time and dollar limits
are effective immediately, the Regions are not currently delegated
the authority to sign Action Memoranda above $1 million. Until
delegation to the Regions of additional authority, Headquarters'
approval of ceiling increases and exemption requests above
$1 million will be required. Regions are already delegated the
authority to approve extensions of any time limits. Any findings
by the Region that an extension of time is needed must be made as
early as practicable, and at least before expiration of the new
statutory time limit of 12 months.
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9200.3-02
Headquarters' review of non-delegated dollar limit extensions
will be expeditious and will focus on consistency with criteria
for removal actions and, in this immediate post-enactment period,
on the availability of limited dollars to complete emergency actions.
Regions have the discretion to re-evaluate on-going removals to
determine if the scope should be changed under the new limits.
At some sites, it is possible that a more efficient approach could
be designed given the additional fund/time limits available.
2. Consistency Waiver
The new statute provides for an additional waiver to statutory
limits which allows EPA to continue a removal action beyond
$2 million and 12 months where such action is "appropriate and
consistent" with future remedial actions ($104(e)(2)]. This
waiver is available at both proposed and final NPL sites. Our
current position is that it will not be used at non-NPL sites.
3. Contribution to Efficient Performance
Removal actions that take place after SARA are to be con-
ducted in such a manner as to "contribute to the efficient perfor-
mance" of long-term remedial measures "to the extent the President
deems practicable" [$104(b)(2)]. This provision promotes the
performance of removal actions that more efficiently address
threats by considering the overall site clean-up before the start
of the action. The goal of this requirement is to reduce the
need for removal restarts. The responsibility under this provision
is effective immediately.
The Action Memorandum must include a specific discussion on
how the proposed removal action meets this criterion. One situa-
tion where it may not be feasible to consider how the removal
action contributes to the performance of the remedial action is in
an emergency involving an immediate threat. In such cases, response
personnel may need to take whatever immediate measures are required
to protect the public health, welfare and the environment, and should
document the reasons for taking the action without having first
considered this criterion.
For on-going removals, response personnel should keep in mind
the requirement that removals contribute to the efficient perfor-
mance of long-term remedial measures, and take whatever steps are
practicable under site-specific field circumstances to meet this
requirement. Changes to on-going removal actions that take place
in the course of exercising this responsibility should be documented
in an amended Action Memorandum. This documentation should occur
as soon as possible*.
1/ As it is existing policy to ensure that removal actions contribute
to the efficient performance of long-term measures to the extent
practicable, this provision may have very little practical impact
on signed Action Memoranda or on-going actions.
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9200.3-02
0 If an Action Memorandum has been signed, the removal is
on-going, and a new Action Memorandum is necessary to go
beyond statutory limits. The new memo should address the
degree to which this requirement has been addressed.
0 If an Action Memorandum has been signed but a removal
action not yet initiated, consideration should be given
to amending the Action Memorandum, if this requirement is
not already addressed prior to initiating the response
action.
0 If an Action Memorandum has not been signed, it must
address this requirement.
B. Removal Program Priorities
Until SARA funding is available, we must continue to con-
serve funding for removal actions. We plan to provide $2 million
per month nationally to respond to the most serious emergency
situations.
Regions should use this period to carry out preliminary
activities that will allow on-site work to begin promptly when new
CERCLA funding becomes available. Such activities include:
0 Continue to conduct preliminary assessments under CERCLA
section 104(b) authority at sites where removal action may
be necessary.
0 Coordinate and prepare Action Memoranda and secure the
Regional Administrator's informal approval (not signature)
for potential removal actions of Less than $1 million so
that on-site activities can begin promptly when SARA,
funding becomes available.
e Prepare and submit to Headquarters draft ceiling increase
requests (between $1 million and $2 million) and exemption
requests (above $2 million), so that coordination and infor-
mal approval can take place during the period of restricted
funding. Review of draft requests will ensure that on-site
actions can be initiated promptly and will be particularly
important in obtaining timely Headquarters' approval of
exemption requests based on the new "remedial consistency"
waiver.
0 Refer sites needing action and having responsible parties to
Regional enforcement programs.
During fiscal year 1986, many removal actions were not initi-
ated, others were demobilized and some actions were conducted at a
reduced pace. As the removal program gears up with SARA funds,
removal site priorities will have to be established by each Region.
Available personnel and funding resources will have to be considered
in setting these priorities.
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9200.3-02
IV. REMEDIAL PROGRAM PROVISIONS AND PRIORITIES
Highlighted below are some of the considerations that you
will want to keep in mind as you proceed to incorporate the SARA
requirements into on-going work. Paraphrasing of the statutory
language — particularly the cleanup standards section — was
necessary due to length. The statutory language and the Regional
Counsel should be consulted for a more complete description of
SARA's impact on the program.
A. Major Provisions
Clearly, the most important section of the law relating to
the remedial program is $121, cleanup standards. This section
codifies many of the existing requirements under the National
Contingency Plan (NCP) but also adds new requirements, addi-
tional detail and direction. Some of the areas addressed include
emphasis on treatment technologies in selection of remedies, meeting
State standards, and formalizing the role of States in the cleanup
process. The following discussion highlights the areas that should
receive particular attention and consideration during the conduct
of RI/FSs and development of RODs.
1. Applicable, Relevant and Appropriate Federal and State
Requirements.
Section 121(a) and (d) establish the requirements for the
degree of cleanup for remedial actions. The new amendments require
that remedial actions conducted on-site shall meet the "applicable
or relevant and appropriate standards, limitations, criteria, and
requirements" (ARAR) of State and Federal environmental laws.
Specific Federal environmental laws including, but not limited to,
TSCA, SDWA, CWA, RCRA or MPRSA, are listed as potentially applicable
to on-site clean ups. In addition, remedial actions are required
to attain specifically identified standards, such as maximum
contaminant level goals or MCLGs, formerly known as recommended
maximum contaminant levels (RMCLs), established under the Safe
Drinking Water Act and water quality criteria established under
the Clean Water Act, when relevant and appropriate under the cir-
cumstances. (See statutory language, Section 121(d), for a more
definitive description.)
The new law basically builds upon EPA's site-specific approach
to cleanup standards (found in the NCP and in the CERCLA Compliance
Policy) which requires remedial actions to meet the applicable or
relevant and appropriate requirements of other Federal environmental
statutes. Additional RCRA regulations that become effective both
before and after reauthorization will themselves expand the specific
requirements that SARA clean-ups have to meet. Some of the most
significant requirements which can be applicable or relevant and
appropriate to Superfund remedial actions are the land disposal
ban provisions of HSWA. The land ban requirements could potentially
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9200.3-02
have significant impacts on the cleanup levels, treatment techno-
logies and the decisionmaking processes Superfund uses in remediating
sites. Many substantive issues pertaining to these regulations
and their impact on Superfund remedial actions and RCRA corrective
actions remain to be resolved. It is clear, however, that these
regulations can affect all projects in every stage of the remedial
process. Headquarters will keep the Regions closely informed on
policy development in this area.
The new law expands the list of potentially applicable or
relevant and appropriate requirements to include promulgated State
standards, requirements, criteria, or limitations. These State
requirements should be addressed in the same manner that Federal
requirements are currently. Under certain circumstances State
ARARs need not be met [$121(d)(2)(c)(ii), and (d)(4)(E)]. These
circumstances include inconsistent application of State require-
ments, lack of formal promulgation of the requirement, and require-
ments that would effectively result in a statewide prohibition of
land disposal.
The addition of State requirements, criteria, standards, and
limitations as applicable, relevant and appropriate requirements
requires EPA to obtain a complete picture of State requirements
early in the RI/FS process. The Regions should develop their own
process for obtaining information from the States on applicable,
relevant and appropriate requirements. However, it is recommended
that this include:
0 A request to the State to notify EPA of the specific re-
quirements that they think will be applicable or relevant
and appropriate to each alternative under examination in
the feasibility study.
0 The above request made in writing, as early as possible,
but not later than the time when the remedial investigation
is 25 percent complete.
0 Give the State a fixed time period for review of alternatives
for which they are to identify ARARs and ask for an offical
documented response.
2. Preference for Permanent Solutions and Alternative
Treatment Technologies.
While the new provisions continue to require cost-effective
remedies which protect human health and the environment, the statute
places a greater emphasis on the long-term protection and reliability
of remedial actions.
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9200.3-02
The language calls for remedial actions which utilize permanent
solutions and alternative treatment or resource recovery technologies
to the maximum extent practicable. It establishes a preference for
remedies in which treatment which permanently and significantly
reduces the mobility, toxicity, or volume of waste comprises the
principal element. If a remedy in accordance with the preference
for treatment and permanent solutions is not selected, an explanation
must be published [Section 121(b)(1)(G)].
Regions should collect sufficient data during the RI/FS to
assess and compare treatment performance, reliability, and other
operating parameters. As a goal, information should also be
collected sufficient to attain an accuracy on costs of +50/-30
percent at the time of the ROD. Treatability studies frequently
will be necessary prior to the ROD to properly evaluate treatment
technologies and estimate costs. As appropriate, this would entail
pilot scale testing (e.g., confirmation burns) or, in some situa-
tions, bench scale testing (e.g., for fixation).
In evaluating alternatives, Regions should closely examine:
1) how effectively and significantly each alternative reduces the
toxicity, mobility, and volume of the waste; 2) the degree of
protectiveness and long-term reliability each alternative affords
(including the uncertainties associated with land disposal);
3) the effect of applicable or relevant and appropriate land ban
requirements on performance targets; 4) short-term impacts posed
by each option; and 5) short-term and long-term costs of the
alternatives, including capital, operation and maintenance, and
replacement costs over the life of the remedial action ($121(b)).
Present worth costs would then be calculated, as currently
practiced.
3. State Involvement
SARA provides broad authority and an extensive list of require-
ments for State involvement in every phase of the Superfund program
[§121(f)]. Over the long term the Agency will develop and issue
regulations concerning State involvement which could go beyond
current Agency policy. In the interim, Regions should proceed to
work with the States to inform them of new requirements and priori-
ties as outlined in this memo.
The amended law generally does not alter State cost-sharing
provisions.2 Given the preference for treatment established in
the new law, and the likely increase in the cost of remedies, the
value of the State cost share of the remedial response action is
likely to increase in many cases. Regions should begin discussions
with their States now to alert them to the likely impact of the
new law so that the States may begin to consider how to raise the
additional funds that are likely to be necessary.
2/ Section 104(f) has the effect of requiring a 50 percent State
match for State operated facilities.
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9200.3-02
States should be made aware that pre-emption by the original •
CERCLA on State creation of trust funds similar to "Superfund" has
been removed in the new law [§114(a)].
4. Waivers
The new law adopts many of the waivers contained in the existing
NCP, but also adds some new ones. Compliance with ARARs can be
waived when:
0 The remedial action is an interim measure where the final
remedy will attain the ARAR upon completion;
0 Compliance will result in greater risk to human health and
the environment than other options;
0 Compliance is technically impracticable;
0 Other remedial actions will attain "an equivalent standard
of performance to that required under the otherwise applicable
requirement, through use of another method or approach";
0 For State requirements, the State has not consistently
applied the State requirement, or demonstrated the intent
to apply such requirements, at similar remedial actions;
or
0 For §104 remedial actions where compliance will not provide
a balance between the need to protect human health and the
environment at a facility and the availability of Fund
money for response at other facilities [§121 (d)(4)].
The waivers for fund balancing, technical impracticality, and
interim remedies remain essentially the same as in the NCP, while
the waiver for enforcement cases with strong public interest has
been eliminated. The waiver for unacceptable environmental impacts
has been expanded and redefined as a waiver where compliance would
result in "greater risk to human health and the environment." A
new waiver is added for actions whose "standard of performance" is
"equivalent" to a requirement through use of another method or
approach.^ And another new waiver is added for State requirements
that have not been consistently applied.
5. Health Assessments
Under the new law, a health assessment must be conducted by
the Agency for Toxic Substances and Disease Registry (ATSDR) for
every site on the. National Priorities List (NPL) on the following
schedule:
0 By 12/10/88 for facilities proposed for the NPL prior to
SARA; and
3/ The Conference Report states that this waiver allows "flexibility
in the choice of technology, but does not allow any lesser standard'
or other basis such as risk-based calculation"... unless "the
original standard is risk based."
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9200.3-02
0 Within one year after proposal for facilities proposed for
the NPL after SARA [§110],
These assesssments will assist EPA and ATSDR in determining
whether action is required to be taken to reduce human exposure to
hazardous substances, and whether additional information on human
exposure and associated health risks (i.e. epidemiological studies
by ATSDR) is needed. The assessments will evaluate the current
and potential risk to human health posed by individual sites and
facilities [§110(3)(G)].
While ATSDR will provide an assessment of whether existing
exposure provides a risk to public health, EPA will continue its
risk assessment (public health evaluation and endangerment assess-
ment) activities as part of its risk management responsibilities —
determining and selecting the remedy.
Health assessments are not required to be completed before a
project moves forward. However, ATSDR is required to complete
health assessments "to the maximum extent practicable" before the
RI/FS is completed. The highest priority for completion of
health assessments should be any RODs the Region expects to sign
within the next several months. Regions should coordinate with
ATSDR to establish overall priorities and schedules for health
assessments as well as work closely with ATSDR during the RI
phases and development of alternatives.
B. Remedial Program Priorities
As previously mentioned in Section II (C) of this guidance,
projects in the construction phase and design projects at the time
of enactment should proceed on schedule to the degree possible.
One of the Regions' highest priority activities should be to examine
these projects and assess their consistency with subsequent operable
units given that these subsequent units will have to comply fully
with the new law.
In addition, priorities for funding remedial projects will be
determined according to the phase that the projects were in when
SARA was passed. Priorities for remedial work should focus on
the need to fund the construction pipeline. Projects nearest
completion (remedial actions) will receive funding and staffing
first, followed by remedial designs, and on-going RI/PSs. Although
we recognize that some Regions will have a need to start new RI/FSs,
for the time being the backlog of work to be done in ensuring that
on-going projects meet or exceed the SARA requirements may cause
new starts to receive a lower priority.
ENFORCEMENT PROGRAM PROVISIONS AND PRIORITIES
SARA includes a number of changes to the existing enforcement-
related provisions and adds a new section (§122) on settlement
procedures. In general, the enforcement-related amendments adopt
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9200.3-02
/"
many of the provisions of the Interim CERCLA Settlement Policy and
other existing enforcement program activities. The purpose of
this section is to outline the significant new enforcement proce-
dures and requirements and how these procedures will affect ongoing
CERCLA activities.
A. SETTLEMENT PROCEDURES
1. RI/FS Special Notice Procedures
Section 122(e) establishes a new negotiation procedure for
RI/FSs and RD/RAs which EPA may in its discretion choose to follow.
This procedure involves issuance of "special notice" to PRPs followed
by a moratorium on EPA action for a set time period. Although EPA
may continue past notice and negotiation practices, it is expected
that in most instances the negotiation procedure under §122(e) will
be followed.
EPA may issue "special notice" if it determines that negotia-
tions would facilitate an agreement with potentially responsible
parties (PRPs) to either undertake or finance an RI/FS. Special
notice is required to include the following information, to the
extent it is available;
o Names and addresses of PRPs;
o Volume and nature of substances; and
o Ranking by volume of substances [$122(e)(1)].
EPA must also provide notice to the State of negotiations with
PRPs and provide an opportunity for State participation in the
negotiations IS121(f)(1) (F)]. If the release or threat of release
at the site in question may have resulted in damages to natural
resources, EPA must notify the Federal Trustee and provide an oppor-
tunity for the Trustee to participate in the negotiations
[§122(j ) (1) ]. To simplify the notification of Federal Trustees,
the Agency plans to provide a list of projects in the SCAP to the
Trustees as notice to participate in negotiations. Additional
guidance on coordination with Federal Trustees will be developed.
The PRPs who receive special notice have 60 days to submit a
proposal to undertake or finance the RI/FS [$122(e)(2)(B)]. During
this 60 day period, EPA may not initiate the RI/FS [§122(e)(2)(A)].
Additional studies or investigations authorized under $104(b) may
be initiated and nothing precludes EPA's authority to undertake
response or enforcement activity regarding a significant threat to
the public health or the environment (§122(e)(5)]. The Regions
may, under forward planning, initiate a scope of work or a
negotiations support document*. The scope of work or negotiations
4/ Under forward planning, using TES or REM contractors, at a cost
of up to $50K per site and estimating a work period of approxi-
mately one month, the Regions may develop a site specific "negotia-
tions support document." In general, this work would include
collecting background information, conducting a site visit and
developing a scope of work. More detailed guidance on the
scope and use of these documents will be forthcoming.
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9200.3-02
support document should be provided to PRPs when notice is given
so they can prepare an adequate proposal. Initiating the scope
of work or negotiations support document will not constitute
starting the RI/FS under the moratorium.
If a good faith proposal^ is submitted within 60 days of notice,
the moratorium limiting initiation of the RI/FS continues for a
total of 90 days from the date of notice.
If settlement is achieved, the agreement for the conduct or
financing of the RI/FS must be in the form of an Administrative
Order on Consent or a Consent Decree [$122(d)(3)]. Administrative
Orders on Consent are the preferred format for RI/FS agreements,
except where an action has been filed in court.
The agreement may authorize the PRPs to conduct the RI/FS only
when the following conditions are met:
o EPA determines that the PRPs are qualified to do the RI/FS;
o EPA arranges or contracts for a qualified person to assist
in overseeing the conduct of the RI/FS6; and
o The PRPs agree to reimburse EPA for the cost of such
oversight [$104(a)].
The settlement agreement for the RI/FS need not contain a find-
ing of imminent and substantial endangerment to the public health
or the environment [§122(d)(1)(A)].
If a good faith proposal is not submitted within sixty days
of notice, or negotiations fail after submittal of a proposal, EPA
may initiate the RI/FS [$122(e)(4)].
5/ In general, a "good faith" proposal is a proposal in writing,
in which the PRPs make a showing of their qualifications and
willingness to conduct or finance the RI/FS which, and at least,
addresses the major elements of the workplan or statement of work,
£/ The Statement of Managers refers to a "qualified person" as
"someone with the professional qualifications, expertise and
experience necessary to provide additional assurance that the
President is conducting meaningful oversight." This person
could be a State employee, employee of another Federal agency
or any other "qualified person" EPA may contract with to perform
the oversight. This provision does not replace the need for
in-house EPA oversight, but rather supplements it, much like the
current use of TES/REM contractors or the COE for oversight.
Moreover, it is still EPA policy to require reimbursement
for the cost of its oversight.
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2. Ongoing RI/FS Activities
If notice letters have already been sent for RI/FS negotiations
and Regions are prepared to negotiate or have inititiated negotia-
tions, parties do not have to receive another notification regarding
their liability for the conduct of the RI/FS unless the Regions
desire to use the moratorium procedures in §122(e). The Regions
must bear in mind, however, that the remedy eventually selected
for these sites must comply with $121, cleanup standards.
a. Ongoing Negotiations for RI/FS
In ongoing negotiations for RI/FSs, PRPs should be informed
of the requirements of S121 for cleanup standards. In particular
these include, but are not limited to, consideration of alternatives
that meet ARAR reguirements, the statutory preference for permanent
remedies, and notification and involvement of States in determining
ARARs and concurring on remedy selection. EPA must also arrange
for a qualified person to assist with the oversight of the RI/FS
and the PRPs must agree to reimburse EPA for that oversight.
b. Ongoing RI/FS
An RI/FS currently being conducted by PRPs should be reviewed
to assure that alternatives evaluated include those that comply
with §121. This review will be similar to the evaluation that
will be conducted for ongoing fund-financed RI/FSs. (See section
on cleanup standards.) Sections of Administrative Orders on Consent
or Consent Decrees may need to be revised to reflect that the
final remedy must meet the requirements of Si21. A letter should
be sent to the PRPs informing them of the new provisions and pro-
viding them with an opportunity to discuss the changes to the
Administrative Order or Consent Decree. (A sample letter is being
developed and will be sent to the Regions shortly.)
c. New Negotiations for RI/FS
As EPA's current policy suggests, all notice letters should
be issued to the PRPs as early as possible. Responsible party
searches should be conducted concurrently with the expanded site
inspections (ESI) and notice letters should generally follow shortly
after proposal on the NPL. If the Region chooses to invoke the
§122(e) "special notice" and negotiation procedure, the notice
letter should specifically reference that fact and explain that
the 60-day timeframe in which the PRP must make an offer begins
with receipt of the notice letter. Using the notice letter
as the vehicle to begin the moratorium on initiation of the RI/FS
should avoid any potential delays when EPA is actually ready to
commence the RI/FS. A model administrative order on consent and a
detailed scope of work for the RI/FS should be sent to the PRPs at
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the time notice is given. If the Region chooses not to invoke the
§122(e) procedure, the notice letter should state the reasons why
the procedure is inappropriate [§122(a)].
3. RD/RA Procedures
If EPA decides to invoke the negotiation procedures in §122(e)
for the remedial action, EPA must again provide special notice to
the PRPs and provide information on volume, nature and ranking of
wastes. The Statement of Managers indicates that this information
"should be routinely made available at this time". This is a
separate notice and information release from the RI/FS notice.
State and Federal Natural Resource Trustees must also be notified
and provided an opportunity to participate in the negotiations.
Notice for RD/RA negotiations should generally be given as early as
possible, but no later than when EPA has identified a "preferred"
remedy.
Again, as with the RI/FS procedures, the PRPs have sixty days
to make a good faith proposal to conduct or finance the remedial
action. A good faith proposal is a proposal in writing, in which
the PRPs make a showing of their qualifications and willingness to
conduct or finance the major elements of the ROD. During these
sixty days, EPA may not initiate remedial action under $104(a) or
under §106. Additional studies authorized under §104(b), however,
including remedial design may be initiated during the negotiation
period.
If a good faith proposal is submitted, the moratorium on
initiation of a §104(a) response action or the issuance of §106
Administrative Order or the filing of a §106 civil action continues
for 120 days from the date of notice.
An agreement with PRPs for remedial action must be in the
form of a consent decree. Several sections of the new statute
affect the terms which can be included in such a decree. First,
$121(e)(2) requires that the decree contain stipulated penalties.
These penalties are in addition to the penalties which can be
collected under §122(e). Second, because §113(j)(2) establishes
that EPA decisions relating to remedial measures are to be judged
under the arbitrary and capricious standard, all dispute resolution
provisions must provide that in any dispute concerning the response
action the court will uphold the EPA response decision unless the
objecting party can demonstrate on the administrative record that
the decision was arbitrary and capricious or otherwise not in
accordance with law. Finally, in §122(f) Congress has established
the conditions upon which a covenant not to sue can be granted. A
separate section below explains how this statutory provision affects
settlement terms.
The proposed agreement must be filed with the Court at least
30-days before final approval is sought from the Court and persons
not party to the agreement must have an opportunity to comment
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before final judgment. [§122(d)(2)(B)]. This requirement is con-
sistent with current Department of Justice (DOJ) practice [28 CFR
50.7]
It is important to note here that under the new statute, EPA
retains its authority to issue unilateral administrative orders
for RD/RAs, if the settlement fails or EPA has decided not to pursue
a settlement.
a. Application to Ongoing Negotiations
Except for the RODs/EDDs which are subject to the "grand-
father" provision, any remedies which are the subject of ongoing
negotiations for RD/RA must also be evaluated for compliance with
§121. Particular attention should be paid to the application of
State standards, preference for permanent remedy, use of alternate
concentration limits (ACLs) and cost effectiveness.
Any ongoing negotiations for RD/RA that were proceeding in
the form of an Administrative Order on Consent must be redirected
to a Consent Decree. These Consent Decrees must incorporate the
new statute's provisions on covenants not to sue, stipulated penal-
ties, and deference to Agency decisionmaking. The Department of
Justice should be notified of these cases and brought into the
negotiations.
b. Application to New Negotiations
If "special notice" is given to provide the PRPs an opportunity
to undertake the RD/RA, EPA anticipates that initiation of the
remedial design during the first 60-day period will only occur
in exceptional circumstances. Initiation of remedial design during
this period must have advance concurrence from Headquarters. If
the PRPs submit a good faith proposal, initiation of the design
during the second 60-day period should again be the exception and
requires concurrence from Headquarters.
4. Releases or Covenants not to Sue
Section 122(f) authorizes EPA to provide to PRPs, in certain
circumstances, covenants not to sue for any liability, including
future liability, under CERCLA for a release or a threatened release
of a hazardous substance addressed by a remedial action. This pro-
vision adopts with only a few changes, the guidance on this subject
set forth in the Interim CERCLA Settlement Policy. Releases from
liability are to be in the form of a covenant not to sue.
The appropriateness of providing a covenant not to sue from
liability is, according to §122(f)(l), to be based on the considera-
tion of such factors as:
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1) Effectiveness and reliability of remedy;
2) Nature of risks remaining;
3) Extent performance standards are in decree;
4) Extent action provides complete remedy;
5) Extent technology used is demonstrated to be effective;
6) Whether source of funding would be available for any
additional remedial actions; and
7) Whether action will be carried out in whole or significant
part by PRPs.
Section 122(f)(2) makes it mandatory that covenants not to sue for
future liability be provided under certain circumstances for redis-
posal liability and for the portion of the remedial action which
involves the permanent destruction or treatment of the hazardous
waste. No covenants not to sue for future liability, however, may
take effect until EPA certifies that the remedial action has been
completed and any covenant issued under $122(f) is conditioned
upon satisfactory performance of the remedial action.
If a covenant not to sue for future liability is not
mandated under §122(f)(2), the covenant must include a reopener
clause which allows EPA to pursue PRPs concerning a release or
threat of release that arises out of conditions which were unknown
at the time EPA certified that the remedial action was completed
[§122(f)(6)(A)]. The reopener should not be conditioned on the
presence of an imminent and substantial endangerment. EPA is also
authorized to include any other terms in the reopener necessary to
protect public health, welfare, and the environment [§122(f)(6)(C)].
In "extraordinary circumstances," the reopener clause may be omitted
if the terms of the agreement are sufficient to provide assurance
that public health and the environment will be protected from
future releases [§122(f)(6)(B)]. Regions should still include the
second reopener for "new scientific information" contained in the
Interim Settlement Policy.
The new language on covenants not to sue is effective immediately
and should be included in all consent decrees involving remedial
action. At a minimum, consent decrees must specify that any covenant
not to sue for future liability does not take effect until the^
remedial action has been completed, that the covenant not to sue
is predicated upon satisfactory performance of the remedial work,
and that the reopener is not limited to imminent and substantial
endangerment situations.
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Additional guidance on covenants not to sue is being developed.
Until such guidance is available, Regions must consult with Head-
quarters in advance of any agreement that will provide a mandatory
covenant not to sue under §122(f)(2) or contain a no reopener
clause on the basis of the "extraordinary circumstances" provision.
5. Additional Parties
If during the course of "special notice" negotiations, addi-
tional PRPs are identified, EPA may bring those parties into the
negotiations [§122(e)(2)(C)]. However, the addition of new parties
does not affect the original date of notice and commencement of
the moratorium provision. (This applies to RI/FS negotiations as
well.)
B. Additional Enforcement Related Amendments
1. Contribution Protection
Section 113 of CERCLA has been amended to provide contri-
bution protection statutorily to PRPs for matters addressed in an
administrative or judicially approved settlement. The settlement
reduces the potential liablity of other PRPs by the amount of the
settlement. Since contribution protection is now provided by law,
it is no longer appropriate to include such a provision in the
consent decree.
2. Pre-enforcement Review
Section 113(h) has been amended to include language on pre-
enforcement review. The amendments state that Federal court
jurisdiction to review challenges to removal and remedial actions
is limited to the following cases:
o Actions under $107;
o Actions to enforce an order under §106(a);
o Action for reimbursement under $106(b)(2)7;
o Action under $106 where U.S. has moved to compel
remedial action; and
o Action under $310 (Citizen Suits) that alleges the response
action was in violation of CERCLA.
7/ Any person who receives and complies with an Administrative Order
may petition the Agency for reimbursement within 60 days after
completion of the required action. Reimbursement may be obtained
if a party shows by a preponderance of the evidence that it is
not liable under $107 or if the party can demonstrate that the
action ordered was arbitrary and capricious.
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With the exception of the new citizen suit provision and the
new provision on reimbursement, this new language confirms the
Agency's current position that parties may not take any action
challenging the Agency's selection of remedy before an enforcement
action is taken. If the parties challenge the selection of remedy
following an enforcement action, that challenge is limited to
judicial review of the administrative record.
3. Judicial Review/Administrative Record; S113(j)
SARA limits the judicial review of adequacy of any response
action taken to the administrative record. Judicial review, including
review of RODs signed before the date of enactment, will be on the
administrative record. EPA is required to establish an administrative
record which is to be the basis for the selection of any response
action. An administrative record is required for all response
actions: removal and remedial, fund-financed and enforcement. The
record must also be available for public review.
Until regulations on the administrative record are promulgated
under §113(j), the administrative record consists of all items con-
sidered by the Agency in selecting the response actions and includes
items developed and received under the current procedures for
selection of the response action including public participation
procedures. These existing procedures are set out in the June
1985 RI/FS Guidance and the February 1985 Draft ROD Guidance.
The Agency will be developing detailed guidance on what
documents need to be maintained in the record and develop, where
necessary, a process for organizing the record for sites where the
response action has been selected.
Because the record is the only basis for review of the selec-
tion of the response action by PRPs or citizen suits, it is extremely
important that the Agency properly document and maintain all the
information it uses for making the selection of response action.
The Regions must closely adhere to the procedures outlined in the
RI/FS and ROD Guidance.
C. Priorities for Enforcement Activities
The Regions, in consultation with Headquarters, will need to
re-evaluate ongoing enforcement activities and develop priorities
for assuring compliance with the new amendments. The following
should be the first priorities for Regions in re-evaluating
their enforcement activities:
1. Review of sites scheduled for RI/FS and RD funding in the
first and second quarters of FY 87. Regions must make sure
that proper notice and information exchange with PRPs has
occurred. (This should be consistent with SCAP targets.)
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2. Review draft settlement documents to ensure incorporation
of the provisions discussed in V.A.3.
3. Review Agency position in ongoing negotiations for RD/RA
(where consent decree has not been lodged or ROD/EDO has not
been signed) and assure consistency with new requirements.
4. Review of PRP conducted RI/FSs that are nearing completion.
PRPs must be informed of the new statutory requirements and
Regions must assure that selection of remedy will be consis-
tent with S121.
5. Review all other RI/FS being conducted by PRPs under adminis-
trative Orders or Consent Decrees. PRPs must be notified
of new requirements and appropriate revisions to the Order
or Decree to reflect new requirements should be made.
D. Additional Enforcement Provisions
SARA includes several other provisions that affect enforcement
activities. In general, however, these additional provisions will
not be employed by the Agency until they have been delegated from
the President to the Agency and the Agency has developed policies
and guidelines for their use. A brief description of these provi-
sions has been provided.
1. Response Action Contractor (RAC) Indemnification
Section 119 gives EPA discretionary authority to indemnify
RACs against liability (including the expenses of litigation or
settlement) for negligence arising out of the RAC's performance in
carrying out response action activities under CERCLA [§J19(c)(1)].
The amendment does not allow EPA to indemnify RACs whose conduct
or activities are deemed to involve gross negligence, intentional
misconduct, or for conduct for which they are strictly liable
under State law [§119(c)(1)]. RCRA facility owners and operators
and publicly owned treatment works (POTWs) are also precluded from
EPA indemnification [§119(c)(5)(D)].
2. Non-Binding Preliminary Allocation of Responsiblity
Section 122(e)(3) of SARA requires the Agency to develop
guidelines for preparing non-binding preliminary allocations of
responsiblity (NBARs) for PRPs. These guidelines may include
such factors as volume, toxicity, mobility, strength of evidence,
ability to pay, litigative risk, etc. The Agency, in its discretion,
may, after the RI/FS, provide an NBAR to the PRPs. NBARs are not
admissable as evidence, are not subject to judicial review and do
not constitute an apportionment or other statement on the divisibility
of harm or causation.
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9200.3-02
Working with the Regions, Headquarters is currently developing
the guidelines for NBARs and plans to develop several pilot projects
beginning early next year.
3. De Minimis Settlements
Section 122(g) of SARA authorizes EPA to reach final settle-
ments with PRPs if the settlement involves a minor portion of the
response costs and the waste sent to the site by the PRP is minimal
in comparison to the other hazardous substance at the facility in
terms of amount and toxicity. Final settlements also may be entered
with landowner PRPs if the landowner did not conduct or permit
the disposal of hazardous waste at the site, did not contribute to
the release of hazardous substances by an act or omission, and did
not buy the property with the knowledge that waste had been disposed
of at the site. PRPs claiming a defense to liability as opposed
to being less culpable than other PRPs must meet the new requirements
of S101(f) to establish that defense.
These "de minimis" settlements may be in the form of an
Administrative Order or a Consent Decree. Administrative Orders
for facilities where total response costs exceed $500,000 must
have the written approval of DOJ.
The Agency has several "de minimis" pilot projects underway
and is concurrently developing Agency-wide guidance for "de minimis"
settlements.
4. Cost Recovery Settlements
Section 122(h) authorizes any agency with authority to respond,
to compromise and settle claims under §107, if the claim has not
been referred to DOJ. DOJ must give written approval of any claim
compromised where the total response costs exceed $500,000.
Procedures and guidance on compromising claims are under
development.
VI. CROSS-CUTTING PROVISIONS
A. Scope of Response Action
SARA contains three prohibitions on response actions that
generally reflect existing agency policy. Fund-eligible response
actions are generally prohibited with respect to:
0 Releases of naturally occurring substances;
0 Releases from products which are part of buildings or
structures and result in exposure therein; and
0 Contamination of drinking water supplies due to normal
deterioration of the system.
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The Agency may respond to these situations in cases of emergency
where no other party can respond in a timely manner lS104(c)].
B. Off-Site Policy
The new statute reflects the current off-site policy in
most respects. The existing off-site policy remains in place as
is, except as altered by the Statute, if aspects of the off-site
policy are more stringent than statutory requirements, these pro-
visions remain in effect.
The statute requires that hazardous substances, pollutants
and contaminants be disposed of off-site only at facilities in
compliance with (i.e. having no significant violations) RCRA
Subtitle C or TSCA or other applicable Federal laws where appro-
priate, and applicable State requirements (§121(d)(3)].
Disposal at off-site land disposal facilities is further
restricted in that:
0 The unit receiving the waste must have no release into
ground water, surface water, or soil (other than de
minimus releases into soil); & and
0 Any releases from other units must be controlled under an
approved corrective action program (either through a per-
mit or administrative order).
With respect to the above statutory conditions, Regions will
need to examine commercial facilities to determine if there are
significant violations of State standards, or if there are releases
from the proposed receiving unit, in order to determine whether the
off-site facility is eligible to receive CERCLA waste. (Please
note, as per previous guidance, the fact that the facility is in
assessment monitoring does not mean that the facility is ineligible.
Evidence of a release determines eligibility/ineligibility.) In
addition, Regions must examine whether there are releases from other
units (regulated units or solid waste management units). If such
releases are present, the facility must be under an order or permit
schedule of compliance to correct such releases in order to be
eligible to receive CERCLA waste.
The statute also requires that notice of ineligibility determina-
tions made under the Off-Site Policy be given to facilities. Until
regulations are developed, notice must be given per the statutory
requirements. Those requirements are met by following the notice
procedures set forth in OSWER Directive Number 9330.2-05 (CERCLA
Off-Site Policy: Providing Notice to Facilities; May 12, 1986).
8/ The Conference Report states that this language "is intended to
preclude transfer or disposal of hazardous waste or constituents
thereof into unlined units and lined units with releases other
than de minimis releases into soil."
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9200.3-02
C. Technical Assistance Grants
The new amendments provide authority to issue technical assis-
tance grants of up to $50,000 to "any group of individuals which
may be affected by a release or threatened release at any facility
which is listed on the NPL..." [Section 117(e)]. SARA requires
that rules be issued governing these grants. These rules are
under development and we plan to issue them as interim final regu-
lations. Information on how citizens can apply for the grants
will also be issued at that time.
D. Leaking Underground Storage Tank Trust Fund
SARA also contains a section amending Subtitle I of RCRA to
establish a Leaking Underground Storage Tank Trust Fund which is
to pay costs incurred for corrective action and enforcement action
resulting from responses to leaking underground petroleum storage
tanks. These amendments also require establishment of financial
responsibility by private parties for purposes of corrective action
and compensation resulting from accidental tank releases [§205].
In general, responsible parties will provide the first line of
response action for releases from leaking tanks. When responsible
parties are not available to conduct the response, States, acting
under cooperative agreements will determine the need for and type
of response actions. The Federal government will conduct responses
only where the release constitutes a major public health emergency
and no State authority or responsible party is able to respond in
a timely manner. We anticipate that a Federal response will be
minimal. In addition to responding to emergencies, a major priority
for the Regions will be to negotiate cooperative agreements with
the States.
Because the removal contracts and program personnel are
experienced in conducting response actions, responsibility to under-
take these few Federal actions will be assigned to them. The new
Emergency Response Clean-up Services contracts and Technical Assistance
Team contracts have been modified to include responses under Subtitle
I of RCRA using UST Trust Fund appropriations. These contracts will
be available for use later this fall.
UST program authorities are new authorities that are currently
not delegated to the Regions. These provisions [Section 205 of
SARA] amend the Solid Waste Disposal Act and are given, by statute,
to the Administrator. Headquarters' sign-off will therefore be
required on response actions in this area.
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9200.3-02
VII. IMPACT ON DELEGATIONS
A. Executive Delegations
Like CERCLA, the new law provides direct authority, in most
cases, to the President rather than directly to EPA or another
Federal agency. Some authorities in the new law will, therefore,
have to be delegated to EPA and other Federal agencies through a
revision to Executive Order 12316 before they can be implemented.
The new law affects current delegation of authority as well as
future delegations of new authority. A list of authorities that
have been delegated, as well as those that are new or changed, will
be provided shortly.
B. Internal Delegations
Existing internal delegations also remain in effect unless
they are in conflict with the new law, and/or are unavailable for
delegation until the Executive Order is revised. The language of
each existing internal delegation will be evaluated.
If an existing internal delegation is very specific, and a
new provision is beyond the scope of the delegation, it is not
automatically delegated to the Region and must be delegated.
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LIST OF CONTACTS
TRANSITION GUIDANCE
PROVISIONS
Office of Emergency &
Remedial Response
Overview: Program
Implementation/Guidance
Clean up Standards/
Permanent Remedy
Applicable Appropriate &
Relevant Standards
NAME & TITLE
PHONE
Clem L. Rastatter
Executive Officer
Tom Sheckells, Chief
Remedial Analysis Branch
Arthur Weissman, Acting Chief
Policy Analysis Staff
382-2180
382-2339
382-2182
State Issues
Health Authorities
Grandfathering of
Section 121
Removal Provisions
UST Removal Actions
Sam Morekas, Chief
State & Regional Coordination
Branch
Elaine Stanley, Deputy Director
Hazardous Sites Control Division
Elaine Stanley, Deputy Director
Hazardous Sites Control Division
Hans Crump, Chief
Response Operations Branch
Hans Crump
Response Operations Branch
.. 382-2443
382-4632
382-4632
382-2188
382-2188
Office of Waste Programs
Enforcement
Overview: Program
Implementation/Guidance
Settlements/Notifications
Administrative Records
Indemnification & Response
Action Contracts
Non-binding Allocation of
Responsibility
John Cross, Chief' 475-6770
Guidance & Oversight Branch
Janet Farella, Chief 382-2034
Oversight & Documentation Section
Janet Farella, Chief 382-2034
Oversight & Documentation Section
Bob Mason, Chief 382-4015
Guidance Section
Debbie Wood 475-8715
Policy Coordinator
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