oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9800.1-01
.TITLE: Limiting Lead transfers to Private Parties
. During Discrete Phases of che Remedial .Process
APPROVAL DATE: -nm/91
EFFECTIVE DATE:
ORiGINAlhVf rvno:: OWPF- GE3
13 FINAL
D DRAFT .
*
LEVEL OF DRAFT
_ D"A — Signed by AA or OAA
Si 3 — Signed by Offica Director (E. Stanley for Office Dir
DC — Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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&EPA
United Stales
Environmental Protection
Agency
1
Office of
Solid Waste and
Emergency Hesconse
DIRECTIVE NUMBER: 9.800.1-01
TITLE: Limiting Lead transfers to Private Parties
During.Discrete Phases of the Remedial Process
APPROVAL DATE: -n/14/91
EFFECTIVE DATE:
ORIGINATING OFFICE: OWPE, GEB
SPINAL . • •
D DRAFT .
LEVEL OF DRAFT
— Signed by AA or DAA
G$ 8 — Signed by Office Director (E. Stanley for Office Director)
DC — Review &. Comment
REFERENCE (other documents):
SWER
QSWER OSWER
DIRECTIVE Dl
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£ IZIDA U-S- Environmental Protection Agency
vCrV"l OWPE Directive Initiates Slip
Name of Contact Parson
Maria T. Bywater
Document Number:
9800.1-01
Mail Code
OS-510
Office
364SE WSM
Subject Category:
Telephone
26-4117
Title: Limiting Lead Transfers to Private Parties During Discrete Phases of the
Remedial Process
Summary of Document:
In order: to avoid delays caused by remedial process lead changes from EPA to
private parties, we recommend to Regions that they avoid letting PRPs assume the lead
in the raiddle' of a discrete phase of the process (eg., RI/FS, RD or RA), and take
preemptive steps to avoid delays when making lead changes between the
RD and 11A.
Keywords:
remedial process, enforcement
Draft Level
Number Assigned: (data)
9800.1-01
Send out for Review and Comments: (date)
Document in Development:
(date)
Sign by:
Does document supersede a previous one?
Does document supplement a previous one?
Q Yes
Q Yes
Q No
Q No
Distribute to:
(3 Waste MgmtDiv.Dir.1-X
Q RAs-Regs. 1-X
Q Superfund Br. Chiefs
G RCRA Br. Chiefs
G States by HD Quarters
Q Other (fill in)
Is document raleasable to the public?
If no, cite FOI examption(s) in which document is being
withheld from disclosure:
Yes
Q No
Will document become available at a later date.
If you know when, state approximate time frame.
Q Yes
Time Frame:
G No
Number of document pages excluding count
from OSWE-R Initiation request sheets: 3
Note: Key words should be taken from extablished key word list (see OWPE's Directive Coordinator).
Send twenty copies of Directives to OWPE's Directives Coordinator (Dariene Williams, mailcode OS-505) within 5 worxing d!
initial sign off by OWPE's office Director or the AA/OSWEH.
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f « ri
* ^^-^ *, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
I 4 1991
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive #9800.1-01
MEMORANDUM
SUBJECT: Limiting Lead Transfers to Private Parties During
Discrete Phases of the Remedial Process
FROM: Bruce Y • ad, Direct or
Office of '.v^sle Programs Enforcement
TO: Waste Management Division Directors
The success of Superfund's enforcement efforts can be
seen in the increasing value of PRP settlements to conduct
remedial work: from $512 million in FY88 to over $1 billion
in each of the past two years.
In an effort to make additional improvements in the
enforcement program we examined potential sources of delay in
a Superfund 30-Day Task Force Report commissioned by Don R.
Clay, Assistant Administrator for Solid Waste and Emergency
Response. We found that despite the benefits of PRPs taking
lead responsibility in remedial activities, when PRPs assume
the lead from EPA during a discrete phase of the project —
such as the remedial investigation/feasibility study (RI/FS),
the remedial design (RD) , or the remedial action (RA) — the
remedial process can be delayed significantly.
Allowing PRPs to assume the lead once EPA has obligated
its own funds for a project introduces a number of time-
consuming activities: negotiating an enforceable order or
consent decree, changing contractors and funding mechanisms,
and demobilizing and re-mobilizing operations and equipment
in the field. After EPA has begun work on the RI/FS,
negotiating with PRPs to transfer the project to them can
take as long as six to nine months.
Because of these delays, we are establishing an Agency-
wide policy limiting lead changes from EPA to PRPs in the
middle of discrete phases of the Superfund process (such as
the RI/FS, RD, or RA) except in situations where the change
Printed on Recycled Paper
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OSWER Directive #9800.1-01
will not cause undue delay. The policy applies to lead
changes from EPA to PRPs only; not EPA takeovers of PRP work
or lead changes involving states. The policy is not intended
to alter Superfund's goal of "enforcement first" or to
eliminate the opportunity for PRPs to conduct remedial work.
The intent, rather, is to avoid delays by limiting the points
in the process at which PRPs may take the lead to times that
are least disruptive.
We recommend that Regions make clear to PRPs during
RI/FS and RD/RA negotiations that once EPA begins work on a
phase of the cleanup, requests for lead changes will not be
entertained except in unusual circumstances. Emphasizing
this during initial negotiations, especially as a nationwide
practice, may encourage PRPs to agree more readily up front
to conduct remedial work.
When 'v . rcumstances warrant passing the lead to PRPs
during a pnase of the cleanup, we recommend taking preemptive
steps to minimize potential causes of delay. For example,
when PRPs assume the lead during the RI/FS, they should be
given a limit of sixty days in which to enter into an
administrative order on consent or consent decree to perform
the work.
Lead changes between discrete phases of the Superfund
process (such as between the RI/FS and the RD) are generally
preferable to changes during phases. However, lead changes
from EPA to private parties between the RD and the RA are a
concern because of the potential for significant delay.
PRPs, for instance, may request changes in the design, and
have done so after signing the consent decree at some sites.
In some cases, letting PRPs assume the lead between the
RD and RA is entirely appropriate, such as when a state is
unable to contribute funds for the RA — preventing EPA from
funding the work — and a PRP lead is the only alternative,
or when there are significant implications for the Fund.
When the cost of the RA is exceptionally high, and new PRPs
who are viable and able to carry out the remedy are
identified, a lead change may be the preferred alternative.
When a lead change between the RD and RA is being
contemplated, steps should be taken to minimize the time
required for the change. Design changes should be
discouraged, for instance, and Regions should examine whether
any preparations for carrying out the remedial action would
best be completed by EPA before PRPs assume responsibility
for the lead.
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OSWER Directive #9800.1-
Finally, nothing in this memorandum is intended to
discourage Regions from exercising the right to take back the
responsibility to perform an RI/FS or implement an RD/RA if
the PRP is recalcitrant or if circumstances otherwise
warrant.
cc: Regional CERCLA Branch Chiefs
Regional Counsel CERCLA Branch Chiefs
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