oEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9831.3*. TITLE: CERCLA Funding of Private Party Search, Notificatioi Negotiation and Litigation Efforts by States at National Priorities List Sites i APPROVAL DATE: October 1, 1986 EFFECTIVE DATE: October 1, 1986 ORIGINATING OFFICE: OWPE D FINAL ©DRAFT (Interim) LEVEL OF DRAFT £2 A — Signed by AA or DAA D B — Signed by Office Director DC — Review & Comment REFERENCE (other documents): OSWER OSWER OSWER VE DIRECTIVE DIRECTIVE Dl ------- United States Environmental Protection Agency Office of Solid Waste and Emergency Response &EPA DIRECTIVE NUMBER: 9831.3*. TITLE: CERCLA Funding of Private Tarty Search, Notificatioi Negotiation and Litigation . Efforts by States at National Priorities List Sites f APPROVAL DATE: October 1, 1986 EFFECTIVE DATE: October 1, 1986 ORIGINATING OFFICE: OWPE D FINAL ©DRAFT (Interim) LEVEL OF DRAFT — Signed by AA or DAA D B — Signed by Office Director D C — Review & Comment REFERENCE (other documents): S WER OS \NER OS WER DIRECTIVE DIRECTIVE Dl ------- xv EPA United States Environmental Protection Agency Washington. DC 20460 OSWER Directive Initiation Request Interim Directive Number 9831.3c\ Originator information Name of Contact Person Tony Diecidue Mail Code.., WH-527 Telephone Number PTS-382-4841 .ead Office D OERR D OSW D OUST El OWPE D AA-OSW6R Approved for Review Signature of Office Director Date Title CEPCLA Funding of Private Party Search, Notification, Negotiation and Litigation Efforts by States at National Priorities List Sites Interim Draft Guidance Summary of Directive This directive provides EPA Regional offices and States detailed guidance on fuunding, under a CERCLA cooperative agreement, State private party search and notification efforts, negotiation, administrative action and litigation efforts to encourage or compel hazardous waste site cleanups. The guidance outlines the conditions States must agree to, types of tasks allowed for funding under each activity and deliverables required to be submitted to EPA during,execution of the cooperative agreement. OERR, OECM and OGC'have reviewed this guidance. Their comments have been incorporated into this guidance, and serves as concurrence on the document. Type of Directive /Manual. Policy Directive. Announcement, etc.) Guidance Does this Directive Supersede Previous Directive(s)? [ | Yes If "Yes" to Either Question. What Directive (number, title) Status Interim Draft 3Faft D Final Kft New LJ Revision No Does It Supplement Previous Directive^)? | | Yas p{ | NO Review Plan 0 AA-OSWER Q OUST G3 OERR 0 OWPE [J OSW G3 Regions OECM D Other (Specify) ASTSWMO and NAAG OPPE •nis Request Meets OSWER Directives System Format Signature ol Lead Office Directives QMicer Date Signature of OSWER Directives Officer Dam EPA Form 1 31 5-1 7 ------- ! \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 - | I986 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: FROM: TO: CERCLA Funding of State Enforcement Activities at National Pr-^Loriti^s List (NPL) Sites - Interim Draft uidanc imston For tar ssistant Administrator Addressees On February 13, 1986, the Office of General Counsel expanded their opinion on State enforcement funding. The Agency can now fund a broader range of enforcement activities. In response, the Office of Waste Programs Enforcement (OWPE) has developed interim draft guidance for the activities covered under this opinion (OSWER Directive Number 9831.3). These activities include funding for potentially responsible party (PRP) searches, issuance of notice and information request letters, negotiation, administrative action and litigation at NPL sites. I have attached this interim guidance for your review and comment. The guidance explains the conditions to be met and tasks to be funded for the above mentioned activities. The award of cooperative agreements (CA) under this guidance for fiscal year 1987, assuming CERCLA reauthorization, will be on a pilot project basis. When determining which sites to fund as pilot projects, priority consideration should be given to States that demonstrate the following: 0 Established, in-house capability to implement the necessary technical and legal tasks associated with hazardous waste enforcement; 0 Experience in conducting successful enforcement actions at hazardous waste sites; and 0 Willingness to closely coordinate with the Agency and provide opportunities for review and consultation prior to making major decisions. ------- -2- When reviewing CA applications for these activities during this time period, the Regional Project Manager (RPM) should work closely with the Regional grants office and Regional Counsel to ensure that the application is sufficient and complete. RPMs should also coordinate closely with their Headquarters Regional Coordinator in OWPE's Compliance Branch. The Region must submit draft CA applications to the Director, CERCLA Enforcement Division, OWPE for review prior to award. Since CAs will initially be awarded as pilot projects, this is necessary to ensure that implementation of these new funding activities is consistent nationally, and that monies available in the future are properly distributed to the Regions. A more detailed description of the review and award process is also attached to this memorandum. There are also a few points to remember when reviewing and using the interim guidance. 1. The guidance does not include costs or pricing factors for the fundable activities. Your ideas on how to price out these activities is appreciated. In the meantime, you should use Regional experience when reviewing State estimates. The final guidance will address the pricing of these activities. 2. The guidance does not allow State funding in support of enforce- ment actions against Federal facilities. We will consider funding States for management assistance and some aspects of oversight where a formal agreement is signed between EPA and a facility. 3. The guidance does not allow funding of State cost recovery activities (recovery of State or Federal funds). The existing EPA/State cost recovery policy will be followed for enforcement activities funded through cooperative agreements. See the memorandum entitled "Coordination of EPA and State Actions in CERCLA Cost Recovery Negotiations and Litigation," August 29, 1983 for further information. 4. Appropriate provisions from Appendix F, Sections I-II, of the manual, State Participation in the Superfund Program must be incorporated into all cooperative agreements. An attachment is included in this guidance outlining these provisions, along with enforcement language to be used by States in meeting the information and assurance requirements specific to this guidance. You may already be receiving inquiries from States on funding these activities. There is little possibility of actually funding a cooperative agreement prior to CERCLA reauthorization. However, you should begin to use this guidance in developing applications for funding when monies become available. ------- -3- I would appreciate your comments by COB Friday, October 24, 1986. Direct your questions and comments on the guidance to Tony Diecidue, Office of Waste Programs Enforcement (WH-527), U.S. Environmental Protection Agency, 401 M. Street, S.W., Washington, D.C. 20460, or telephone him at Area Code 202/FTS 382-4841. Attachment Addressees: Directors, Waste Management Divisions, Regions I,IV,V,VII,VIII Director, Emergency and Remedial Response Division, Region II Director, Hazardous Waste Management Division, Region III Directors, Air and Waste Management Division, Regions II,VI Director, Toxics & Waste Management Division, Region IX Director, Hazardous Waste Division, Region X Regional CERCLA Branch Chiefs, Regions I-X Regional Counsels, Regions I-X Regional Assistance Management Contacts, Region I-X ------- 9831.3 CERCLA FUNDING OF PRIVATE PARTY SEARCH, NOTIFICATION, NEGOTIATION AND LITIGATION EFFORTS BY STATES AT NATIONAL PRIORITIES LIST SITES PURPOSE The purpose of this guidance is to assist EPA Regional offices and States on funding, under a CERCLA cooperative agreement (CA), of State search and notification, negotiation and litigation efforts to encourage or compel hazardous waste site cleanups by potentially responsible parties (PRPs). BACKGROUND The Office of General Counsel (OGC) has reconsidered its earlier view on funding of State enforcement efforts at CERCLA sites, reflected in a July 20, 1984 opinion. That opinion limited assistance to identification of PRPs and gathering of evidence, remedial investigations and feasibility studies (RI/FS) to support State or Federal enforcement actions, and oversight of a RI/FS and remedial designs (RD) conducted by PRPs. On February 12, 1986, OGC broadened their opinion to allow such activities as oversight of PRP-conducted remedial actions (RA) and operation and maintenance (OM), reporting to the public on private party response actions, and negotiation and litigation to encourage or compel PRPs to initiate response actions at NPL sites. CERCLA reauthorization also confirms this interpretation. Subsequent to the opinions, the Office of Waste Programs Enforcement (OWPE) issued various guidance documents covering activities outlined in these opinions with the exception of initiation of PRP searches and issuance of notice letters, and negotiation and litigation. The intent of funding States for these activities is to successfully secure the greatest number of private party cleanup actions possible. Since Federal funds may be provided to achieve this goal, States will be required to follow the Agency's enforce- ment policies and regulations to the extent possible under State law. This requirement is necessary to ensure that site cleanups: 0 Are consistent with the National Contingency Plan (NCP); 0 Allow EPA to delete the site from the NPL; and 0 Enable EPA to conduct future CERCLA cost recovery actions. GUIDANCE CA funding for PRP searches, issuance of notice letters, negotiation or litigation will only be provided at NPL sites in which the site has been classified as State-lead enforcement. In determining lead classification, EPA Regional offices should use the criteria outlined in the EPA/Association of State and Territor- ial Solid Waste Management Officials (ASTSWMO) policy memorandum of October 2, 1984. Prior to accepting a cooperative agreement ------- -2- 9831.3 application for review and award, the criteria should be applied to the site. This includes sites currently classified as State- lead enforcement and sites States are seeking to place in this classification. Once the classification is made and a State requests CA funding, the Region should pay particular attention to the itemized budget submitted along with the application. The budget should be carefully reviewed to ensure that adequate resources and staff expertise are devoted to the project. Along with these considerations, the conditions and requirements outlined in this guidance must be incorporated into the CA application prior to award. This guidance is divided into five sections. Sections I, II and III explain the conditions for awarding funds and the fundable tasks for each activity. Section IV briefly explains the procedures for developing a CA application. Section V briefly explains State quarterly reporting requirements after award of the CA. This guidance does not preclude the Regions from including additional enforcement-related conditions in the application, if warranted. Furthermore, applicable provisions outlined in Appendix F, State Participation in the Superfund Program, must be incorporated into each CA application. When developing CA applications for these activities, the Regional Project Manager (RPM) should work closely with the Regional grants office and Regional Counsel to ensure that the application is sufficient and complete. RPMs should also coordinate closely with their Headquarters Regional Coordinator in OWPE. Since this is new guidance, the Region must submit draft CA applications to the Director, CERCLA Enforcement Division, OWPE for review prior to award. Also, since CAs will initially be awarded as pilot projects, this review is necessary to ensure that implementation of these new funding activities is consistent nationally, and that monies available in the future are properly distributed to the Regions. I. Funding State PRP Searches and Issuance of Notice Letters at NPL Sites If EPA and a State agree to classify sites as State-lead enforcement, the State should attempt to identify PRPs and issue notice letters. By identifying PRPs, the State can either have them correct the site problem or seek reimbursement for their expense to correct the problem. The notice letters are intended to inform PRPs of their potential liability for cleanup, requesting information from PRPs and, under certain conditions, to provide them with an opportunity to undertake necessary action after negotiation with the State. Consistent with current Agency policy on the timing of PRP searches and issuance of notice letters*, States may request *G.A. Lucero, Timely Initiation of Responsible Party Searches, Issuance of Notice Letters, and Release of Information, October 9, 1985. ------- -3- 9831.3 Candidate sites for funding are those having received a preliminary Hazard Ranking Score (HRS) of 28.5 or better and planned to be sent to EPA Headquarters for NPL quality control review. A. Conditions 'for Funding State PRP Searches and Issuance of Notice Letters Under a Cooperative Agreement In order to receive funding from EPA for PRP searches and issuance of notice letters, the State must agree to include the following information and assurances in their CA application. Except where noted, the following information and assurances must be certified by the State's Governor, Attorney General or designee. In States where these authorities overlap different State offices, all applicable signatures will be required. 1. The State must provide a letter outlining the State enforcement authorities that provide the basis for initiating enforcement actions against PRPs (e.g., administrative action or litigation) which can result in securing the necessary response. If the CA is for funding the State Attorney General's office, the letter must also indicate that this office has the authority to accept Federal assistance. This letter must he included with the CA application. 2. The State must designate a lead technical representative and lead State attorney for the site. Also, if multiple State offices are funded for a site, one must be desig- nated as the lead office. 3. To the extent possible under State law, PRP searches and issuance of notice letters must be consistent with the following EPA policies and guidance documents, and the National Contingency Plan (NCP). 0 U.S. EPA, Office of Legal and Enforcement Counsel, Procedures for Identifying Responsible Parties at Uncontrolled Hazardous Waste Sites - Superfund, February, 1982. 0 G.A. Lucero, Director, Office of Waste Programs Enforcement, Procedures for Issuing Notice Letters, October 12, 1984. The EPA RPM and/or Office of Regional Counsel (ORC) representative for the site will be responsible for sending these documents to the State prior to award of the CA and assisting the State in resolving questions and issues on these documents when they arise. 4. The State must immediately notify the RPM if Federal facilities and/or Federal agencies are identified as PRPs. ------- -4- 9831.3 5. The State must agree to submit the deliverables as described in Section I.E.. The content of each deliverable may be altered by EPA depending upon the scope and timing of the CA. 6. The State must retain in a central file all documents produced, collected, received or issued as part of the PRP search and issuance of notice letters. These documents may be reguired for subseguent State or Federal enforcement action, or future cost recovery activities. 7. The State must conduct a community relations program in accordance with applicable EPA guidance. B. Deliverables to be Submitted to EPA 1. For PRP searches, the State must submit a draft and final report to EPA which includes the following: 0 Introduction (such as identifying problems at the site; and describing project approach and how leads were established); 0 Site history (such as ownership of property through titles or property sales; operations at the facility; and compliance or non-compliance with environmental regulations); 0 Title search and summary of findings; 0 List of names, addresses and phone numbers of PRPs identified (such as owners, operators, generators and transporters; description of each PRP showing types of involvement and years of association with the site); 0 Corporate history, status and financial assessment of each PRP; 0 Conclusions and recommendations for pursuing additional leads or enforcement actions (such as unconfirmed PRPs that could not be conclusively linked to the site; and resource and other constraints to pursuing additional leads). 2. For issuance of notice letters, the State must submit a draft and final report which includes the following: 0 List of names of PRPs receiving notice letters or information request letters; ------- -5- 9831.3 0 Information and data collected as a result of notice letters or information request letters (waste-in lists; volumetric rankings; etc.). All deliverables, portions of deliverables or other documents provided to EPA meant to be enforcement confidential should be clearly marked as such. C• Fundable PRP Search and Notice Letter Tasks This section outlines specific fundable tasks for conducting PRP searches and issuing notice letters. These tasks are similar to those conducted by EPA under current policy and guidance. Various tasks may be conducted to search for PRPs. Fundable tasks may include: 0 Identifying site owners or operators during a preliminary assessment and site inspection. 0 Conducting file searches to examine legal descriptions of property, titles, government files, reports and court cases. Also, to examine technical information on the types of waste disposed of and methods of disposal used. 0 Identifying initial contacts (such as site owners or operators) to gather names and addresses of other parties involved. 0 Researching information provided by initial contacts, which may lead to the discovery of additional PRPs. This infor- mation may include documents such as customer lists, and owner or operator records and manifests. 0 Conducting onsite investigations to identify additional PRPs. These investigations may include an inventory of drums, review of abandoned records, vehicles, buildings, etc. and samples of wastes found onsite. 0 Conducting off site investigations to provide new leads and identify additional PRPs. These investigations may include interviews with local police, fire and health department personnel, local residents, Chamber of Commerce staff, bank personnel and local industry representatives. 0 Conducting community interviews to assess public concerns, learn about additional information on the site and PRPs and prepare a community relations plan. 0 Reviewing and retrieving information from various data bases. Commercial data bases may provide corporate information about PRPs, technical information on specific chemicals, ownership of property, operations and employees of various firms. ------- -6- 9831.3 0 Verifying and documenting the various types of information collected during the PRP search process. This effort may include establishing a data base to maintain this information, and information collected through notice and information request letters. Various tasks may be conducted to notify PRPs. Fundable tasks may include: 0 Identifying recipients of notice letters by reviewing the results of PRP searches. 0 Drafting notice letters to be issued to PRPs. This task may include tailoring the Agency's model notice letter to the specifics of the case (especially for information requests) or to request specific responses from various PRPs. 0 Mailing notice letters. Ensuring that the letters are received by PRPs and that replies are sent to the State. 0 Receiving and sorting out response letters, and reviewing and answering questions raised by PRPs. 0 Maintaining copies of notice letters issued and responses received, and other documents relevant to the site. 0 Releasing the names of notified PRPs, in order for all notified parties to begin organizing among themselves in anticipation of negotiations with the State. Releasing the names of notified PRPs to other interested parties may be done in accordance with State Freedom of Information laws and requirements. 0 Providing other relevant information to PRPs (such as a summary of volumetric contribution) to help in organizing and preparing for negotiations with the State. Community relations tasks are also allowable activities under a CERCLA CA. States should contact appropriate local officials and community representatives if there is any possibility of citizen interest or concern about potential State enforcement actions. Chapter 6 of the guidance entitled Community Relations in Superfund - A Handbook should be consulted when conducting such tasks. II. Funding State Negotiation Activities at NPL Sites If EPA and a State agree to classify sites as State-lead enforcement, the State should attempt to secure private party cleanup of the sites. Therefore, negotiations for PRP conduct of the RI/FS and/or RD/RA should begin within a reasonable time after State-lead enforcement sites are proposed on the NPL. ------- -7- 9831.3 Where this situation occurs, EPA may fund the State for these negotiations with PRPs. A. Conditions for Funding State Negotiations Under a Cooperative Agreement In order to receive funding from EPA for negotiations with PRPs, the State must agree to include the following information and assurances in their CA application. Except where noted, the following information and assurances must be certified by the State's Governor, Attorney General or designee. In States where these authorities overlap different State offices, all applicable signatures will be required. 1. The State must provide a letter outlining the State enforcement authorities that provide the basis for initiating enforcement actions against PRPs (e.g., administrative action or litigation) which can result in securing the necessary response. If funds are provided to the State Attorney General's office, the letter must also indicate that this office has the authority to accept Federal assistance. This letter must be included with the CA application. 2. The State must designate a lead technical representative and lead State attorney for the site. Also, if multiple State offices are funded for a site, one must be desig- nated as the lead office. 3. The State must certify (1) that it believes a good enforcement case exists against the PRPs (i.e. finan- cially able to undertake the remedy or expected cost of the remedy) and (2) that site conditions meet the elements of proof required by the State's authority (e.g. imminent and substantial endangerment). 4. For negotiations with PRPs to conduct a RI/FS, the State must agree to the following: 0 To the extent possible under State law, negotiations must be consistent with the following EPA policies and guidance documents and the NCP: - L.M. Thomas, AA, Office of Solid Waste and Emergency Response/C.M. Price, AA, Office of Enforcement and Compliance Monitoring, Participation of Potentially Responsible Parties in Development of Remedial Investigations and Feasibility Studies under CERCLA, March 20, 1984. - U.S. EPA, Guidance on Remedial Investigations and Feasibility Studies Under CERCLA, June, 1985. ------- -8- 9831.3 The EPA RPM and/or ORC representative for the site will be responsible for sending these documents to the State prior to award of the CA and assisting the State in resolving questions and issues on these documents when they arise. 0 If a settlement is not reached within 60 days after initiating negotiations with PRPs, the State must notify EPA and recommend either continuing with negotiations or requesting initiation of a State or Fund-financed RI/FS. (If negotiations have begun prior to awarding the CA, the State must notify EPA within 60 days after award.) If EPA and the State determine that negotiations should not continue, the State may request that the agreement be amended to redirect remaining funds toward a Fund-financed RI/FS (subject to availability of funds). If EPA and the State determine that negotiations should continue, the State must provide a revised time schedule and date for conclusion of negotiations. For the purposes of this guidance, RI/FS negotiations begin when the PRP search is completed, notice letters have been issued, the State has conducted a meeting to which all PRPs have been invited and the site is ready for either a State or Fund-financed RI/FS. 5. For negotiations with PRPs to conduct a RD/RA/O&M, the State must agree to the following: 0 To the extent possible under State law, negotiations must be consistent with the following EPA policies and guidance documents and the NCP: - L.M. Thomas, AA, OSWER/C.M. Price, AA, OECM/F.H. Habicht, II, Assistant Attorney General, DOJ, Interim CERCLA Settlement Policy, December 5, 1984. - J.W. McGraw, OSWER, Preparation of Decision Documents for Approving Fund-Financed and PRP Remedial Actions under CERCLA, February 27, 1984. - U.S. EPA, Superfund Remedial Design and Remedial Action Guidance, Revised, June 1986. The EPA RPM and/or ORC representative for the site will be responsible for sending these documents to the State prior to award of the CA and assisting the State in resolving questions and issues on these documents when they arise. ------- -9- 9831.3 0 If a negotiated settlement is not reached within 120 days after initiating negotiations with PRPs, the State must notify EPA and recommend either continuing with negotiations or proceeding with other enforcement actions, (If negotiations have begun prior to awarding the CA, the State must notify EPA within 120 days after award.) If EPA and the State determine that negotiations should not continue, the State may request that the agreement be amended to redirect remaining funds toward other administrative enforcement or litigation activities. If EPA and the State determine that negotiations should continue, the State must provide a revised time schedule and date for conclusion of negotiations. For the purposes of this guidance, RD/RA/O&M negotia- tions begin at the time a decision is made on the remedy (i.e. Record of Decision or Enforcement Decision Document approved). 6. The State must conclude successful negotiations by issuing an enforceable order, decree or other enforceable document requiring the PRP to conduct a RI/FS and/or RD/RA/O&M in accordance with the NCP and applicable EPA policy and guidance. To the extent possible under State law, the order must be consistent with the following EPA guidances: 0 For RI/FS orders, the Model Administrative Order on Consent for PRP Conducted RI/FS, January 31, 1985; 0 For RD/RA/O&M orders or consent decrees, the following memorandum: C.M. Price, AA, OECM/J.W. McGraw, OSWER, Drafting Consent Decrees in Hazardous Waste Imminent Hazard Cases, May 1, 1985. The EPA RPM and/or ORC representative for the site will be responsible for sending these documents to the State prior to award of the CA and assisting the State in resolving questions and issues on these documents when they arise. 7. The State must assure that funds will not be used to initiate enforcement actions against Federal facilities and/or Federal agencies that may be PRPs at the site. 8. The State must agree to submit the deliverables and abide by the review and consultation requirements described in Section II.B.. The content of each deliverable may be altered by EPA depending upon the scope and timing of the CA. 9. The State must retain in a central file all documents produced, collected, received or issued as part of their negotiations with PRPs. These documents may be required for subsequent State or Federal enforcement action, or future cost recovery activities. ------- -10- 9831.3 10. The State must conduct a community relations program in accordance with applicable EPA guidance. B. Deliverables to be Submitted to EPA 1. Prior to initiating negotiations, the State must submit a report: 0 Describing the problems at the site (such as the site history, environmental and public health concerns, and previous response and enforcement activities); 0 Outlining the State's negotiation strategy or goals and specific response actions sought; 0 Listing the PRPs involved in the negotiations (such as names, addresses and phone numbers, and other possible PRPs and reasons they were considered or rejected ) ; 0 Describing the State resource and budget commitment (such as the members of the negotiation team and estimated time they will spend on the case, contract dollars and expert witnesses needed and other nego- tiation support costs); 0 Indicating the expected time schedule and date for conclusion of negotiations (such as first negotiation session with PRPs, etc.). The State must also prepare a Community Relations Plan (CRP) based on community interviews conducted at the PRP search and notification stage of the enforcement action. The State must assure in the CA that it will not expend funds for actual negotiations until EPA has had the opportunity to review and consult on the report and CRP and indicated in writing that this condition was satis- fied. EPA will provide their review and consultation within mutually agreed upon time frames or schedules. 2. Prior to concluding negotiations and signing an order with the PRPs, the State must submit a draft order for review and consultation. Any documents prepared as part of the order must also be submitted (e.g., documen- tation outlining information and rationale used to select a remedy consistent with the NCP; RI/FS or RD/RA work plan or schedule; corporate guaranty; etc.). The State must assure in the CA that it will not sign an order with the PRPs until EPA has had the opportunity to review and consult on the order and has indicated in writing that this condition was satisfied. EPA must also ------- -11- 9831.3 be given the opportunity to be a signatory to the order. EPA will provide their review and consultation within mutually agreed upon timeframes or schedules. 3. At the conclusion of negotiations, a copy of the final order and accompanying documents must be submitted to EPA. All deliverables, portions of deliverables or other documents provided to EPA meant to be enforcement confidential should be clearly marked as such. C. Fundable Negotiation Tasks This section outlines specific fundable tasks for conducting negotiations with PRPs. These tasks are similar to those conducted by EPA. Various tasks may be conducted during negotiations with PRPs. These tasks can be broken into two broad areas: technical tasks and legal tasks. Fundable tasks for these areas may include: Technical Tasks 0 Analyzing information provided by PRPs in response to notice letters and information requests (such as development of transactional data bases using waste-in lists, volumetric rankings, and type of involvement and years of association with the site). 0 Analyzing relevant and applicable policies and guidance documents; 0 Analyzing, reviewing and providing comments on work plans, samples, studies, other scientific and technical data. 0 Assessing site conditions. 0 Defining technical points open for negotiation (such as number and placement of samples; scope of the investigation; remedial options to be considered; cleanup standards and techniques to be met; and operable units to be addressed). 0 Reviewing and responding to PRP proposals and/or counter proposals. Legal Tasks 0 Establishing a negotiation team (legal and technical members), and defining each team member's role, and authority and responsbilities. 0 Holding meetings to follow up the notification process. ------- -12- 9831.3 0 Performing legal research (such as applicable laws, need for precedent, etc.) to support the negotiation effort. 0 Analyzing relevant and applicable policies and guidance documents. 0 Negotiating with PRPs (including de minimus parties, et al.), 0 Analyzing settlement alternatives. 0 Monitoring strengths and weaknesses of State and PRP positions, and evidence to be taken to trial should the negotiations fail. 0 Reviewing and responding to PRP proposals and counter proposals 0 Preparing a draft order for PRP and public review and comment. 0 Assessing PRP and public comments on the draft order, and preparing and issuing the final order. 0 Meeting with EPA and/or expert witnesses to dicuss the draft order and other aspects of the enforcement action. 0 Developing a payment plan for fines or cash settlements. Community relations tasks are also allowable activities under a CERCLA CA. The State is responsible for conducting a community relations program during negotiations with PRPs. The State should refer to Chapter 6 of the guidance entitled Community Relations in Superfund - A Handbook when developing such a program. III. Funding State Administrative Action or Litigation Activities at NPL Sites If EPA and a State agree to classify sites as State-lead enforcement, and private parties do not agree willingly to clean up the site, the State may seek administrative action or litigation against PRPs to compel cleanup (in State or Federal court, as appropriate). These actions are normally not considered until completion of a RI/FS, the remedy has been selected and PRPs are unwilling to initiate RD/RA/O&M after negotiations with the Agency. Therefore, EPA will not fund these actions unless the steps outlined above have been completed or pursued. Where this situation occurs, EPA may fund the State for these actions against the PRPs. However, the Agency will consider other factors that justify the need to pursue administrative action or litigation. The State must outline these factors in the CA application or they will be added as special conditions. ------- -13- 9831.3 A. Conditions for Funding State Administrative Action or Litigation Under a Cooperative Agreement In order to receive funding from EPA for administrative action or litigation against PRPs, the State must agree to include the following information and assurances in their CA application. Except where noted, the following information and assurances must be certified by the State's Governor, Attorney General or designee. In States where these authorities overlap different State offices, all applicable signatures will be required. 1. The State must provide a letter outlining the State enforcement authorities that provide the basis for initiating enforcement actions against PRPs (e.g., administrative action or litigation) which can result in securing the necessary response. If funds are provided to the State Attorney General's office, the letter must also indicate that this office has the authority to accept Federal assistance. This letter must be included with the CA application. 2. The State must designate a lead technical representative and lead State attorney for the site. Also, if multiple State offices are funded for a site, one must be desig- nated as the lead office. 3. The State must certify (1) that it believes a good enforcement case exists against the PRPs (i.e. finan- cially able to undertake the remedy or expected cost of the remedy) and (2) that site conditions meet the elements of proof required by the State's authority (e.g. imminent and substantial endangerment). 4. For administrative action or litigation against PRPs to conduct a RD/RA/O&M, the State must agree to the following: 0 To the extent possible under State law, administrative action or litigation must be consistent with the following EPA policies and guidance documents: - L.M. Thomas, AA, OSWER/C.M. Price, AA, OECM/F.H. Habicht, II, Assistant Attorney General, DOJ, Interim CERCLA Settlement Policy, December 5, 1984. - U.S. EPA, RCRA/CERCLA Case Management Handbook, August, 1984. The EPA RPM and/or ORC representative for the site will be responsible for sending these documents to the State prior to award and assisting the State in resolving questions and issues on these documents when they arise. The RPM's review of deliverables will be based on the State's consistency in following ------- -14- 9831.3 the procedures and guidelines outlined in these documents and the NCP. 5. The State must assure that funds will not be used to initiate enforcement actions against Federal facilities and/or Federal agencies that may be PRPs at the site. 6. The State must agree to submit the deliverables and abide by the review and consultation requirements described in Section III.B.. The content of each deliverable may be altered by EPA depending upon the scope and timing of the CA. 7. The State must retain in a central file all documents produced, collected, received or issued as part of their administrative action or litigation against PRPs. These documents may be required for subsequent State or Federal enforcement action, or future cost recovery activities. 8. The State must conduct a community relations program in accordance with applicable EPA guidance. B. Deliverables to be Submitted to EPA 1. Prior to filing a case in court for litigation, the State must submit a report which describes the following:* 0 Problems at the site (such as the site history, environmental and health concerns, and response and enforcement activities preceeding litigation); 0 Objectives of litigation (such as relief and/or monetary penalties sought); 0 Statutory provisions upon which the case is being built (such as State and/or Federal statutes). 0 Factors leading to the need for litigation (such as the legal history of the case and other elements of the case); 0 Proposed litigants and evidence of use of the site (such as names, how they are linked to the site, and other possible litigants and reasons they were con- sidered or rejected); 0 Potential problems with the litigation (such as any anticipated defenses, problems with consistency with NCP, and reasons for urgency in proceeding with litigation). *See Chapter III, RCRA/CERCLA Case Management Handbook for the specific elements included in a referral package. ------- -15- 9831.3 0 Summary of the contents of the documentary file (such as technical documents, administrative decisions, correspondence, pleadings, minutes of negotiations and other relevant documents). 0 Previous settlement discussions and proposals made by the State and/or PRPs. 0 State resource and budget commitment (such as the members of the litigation team and estimated time they will spend on the case, contract dollars needed for expert witnesses and other technical support, and other litigation support costs). 0 Expected time schedule for litigation (such as motion for first discovery, first summary judgement, first deposition, etc.). The State must assure in the CA that it will not expend funds for actual administrative action or litigation until EPA has had the opportunity to review and consult on the report and has indicated in writing that this condition was satisfied. EPA will provide their review and consultation within mutually agreed upon time frames or schedules. 2. Prior to filing a consent decree or other enforceable document for judicial approval, the State must submit a copy to EPA for review and consultation. Any documents prepared as part of the consent decree must also be submitted (e.g. remedial action plan, corporate guaranty, etc.). The State must assure in the CA that it will not sign the consent decree with the PRPs until EPA has had the opportunity to review and consult on the decree and has indicated in writing that this condition was satisfied. EPA must also be given the opportunity to be a signatory to the consent decree. EPA will provide their review and consultation within mutually agreed upon timeframes or schedules. 3. At the conclusion of the administrative action or litigation, a copy of the final consent decree and accompanying documents must be submitted to EPA. All deliverables, portions of deliverables or other documents provided to EPA meant to be enforcement confidential should be clearly marked as such. C. Fundable Administrative Action and Litigation Tasks This section outlines specific fundable tasks for adminis- trative action or litigation against PRPs. These tasks are similar to those conducted by EPA. ------- -16- 9831.3 Various tasks may be conducted during an administrative action or litigation against PRPs. These tasks can be broken into two broad areas: technical tasks and legal tasks. Fundable tasks for these areas may include: Technical Tasks 0 Analyzing information provided by PRPs in response to notice letters and information requests (such as development of transactional data bases using waste-in lists, volumetric rankings, and type of involvement and years of association with the site). 0 Analyzing relevant and applicable policies and guidance documents. 0 Analyzing, reviewing and providing comments on work plans, samples, studies, other scientific and technical data. 0 Analyzing previous negotiations and PRP proposals and/or counter proposals. 0 Defining technical points to be addressed during litigation (such as technical and scientific data supporting selection of a particular remedy, cleanup standard and/or technique and endangerment, release or other elements of proof under State law). 0 Compiling and evaluating testimony and depositions. Hiring expert witnesses. Legal Tasks 0 Developing a litigation team (legal and technical members), and defining each team member's role, authority and responsibility. 0 Organizing all documents collected and generated throughout the case. 0 Performing legal research (such as legal history and theory of the case, and statutes upon which to proceed). 0 Analyzing relevant and applicable policies and guidance documents. 0 Reviewing proceedings of previous negotiations and settle- ment offers. 0 Conducting discovery and deposition tasks. 0 Preparing pleadings, motions and briefs. 0 Preparing expert witness testimony. ------- -17- 9831.3 0 Analyzing potential defenses to the case. 0 Assessing settlement alternatives. 0 Preparing pretrial order. 0 Trying the case in court, if a pretrial settlement cannot be reached. Community relations tasks are also allowable activities under a CERCLA CA. The State is responsible for conducting a community relations program during an administrative action or litigation against PRPs. The State should refer to Chapter 6 of the guidance entitled Community Relations in Superfund - A Handbook when devel- oping such a program. IV. Cooperative Agreement Application Procedures States must follow established procedures for developing CA applications encompassing PRP search, notification, negotiation or litigation activities. The State has primary responsibility for developing a CA application package, but should consult with EPA's RPM for the site throughout the process. In general, the key elements of a CA application package are: 0 Intergovernmental Review; 0 EPA Form 5700-33, Application For Federal Assistance, and accompanying support narrative and assurances; 0 EPA Form 5700-48, Procurement System Checklist; and 0 State Certification Letter. A comprehensive discussion of CA or multi-site CA (MSCA) applications for Superfund activities is presented in Volume I of the manual State Participation in the Superfund Program. As experience is gained in funding State enforcement activities, procedures for developing CA applications for these particular activities will be revised in the future. The project period for these enforcement-related activities is one year. States can request, in a CERCLA CA application, only enough money to conduct the necessary activities for twelve months, If additional funds are needed to continue the activities, the State should submit to EPA a request for a CA amendment as the end of this twelve month period approaches. V. Preparation of State Quarterly Reports States are required to submit quarterly reports that provide EPA with information on the progress of the funded activities. ------- -18- 9831.3 These reports serve many important purposes, including: 0 Providing site-specific tracking data as required under CERCLA; 0 Providing data for future use during cost recovery; and 0 Providing information to assist the State and EPA in managing CAs. States are required to report or document costs associated with the CA on a site-specific basis. Expenditures must be tracked and reported by object class category, as required under the General Assistance regulation for CAs. In addition, personnel hours must be tracked and reported on a site-specific basis. For further information on accounting codes and cost documentation, see the appropriate appendices in Volume I of the manual State Partic- ipation in the Superfund Program. States will submit quarterly reports to the RPM within thirty days of the end of each Federal fiscal quarter. In general, the quarterly reports must cover the following: 0 Itemization of expenditures by object class; 0 Estimation (percentage) of work completed for each activity covered in the CA; 0 Summary of personnel hours spent at each site; 0 Disposition of sites where all activities have been completed and accepted/approved by the RPM; and 0 Explanation of variances from the SOW in estimated costs, personnel hours and/or tasks being initiated). A narrative explanation must also be provided discussing actions initiated or completed, problems or delays encountered and actions planned during the next reporting period. The State must also provide explanations for revisions to the original schedules or time tables established in the CA. As experience is gained in funding State enforcement activities, reporting requirements for these particular activities will be revised in the future. ------- 9831.3 ENFORCEMENT PROVISIONS CERCLA COOPERATIVE AGREEMENTS PROVISIONS SPECIFIC TO STATE-LEAD ENFORCEMENT PRP SEARCHES, ISSUANCE OF NOTICE LETTERS, NEGOTIATION, ADMINISTRATIVE ACTION AND LITIGATION State-lead enforcement PRP search, notification, negotiation, administrative action and litigation Cooperative Agreements should contain the provisions found in Sections 1 (A-F) and 2 (C, E, G-L, N-S) of Appendix F, State Participation in the Superfund Program. In addition, they should also contain the following provisions. A. State Enforcement Authorities In providing CERCLA funds for State-lead enforcement PRP search, notification, negotiation, administrative action, and litigation, the State has shown it possesses the legal authorities to pursue administrative or judicial enforcement action to ensure performance of the response action. EPA asks the State to outline these authorities in the Cooperative Agreement application. The State possesses the legal authorities to pursue adminis- trative or judicial enforcement action to ensure performance of the private party response action. The State agrees to use these authorities if private parties are unwilling to implement the necessary response action. These legal authorities are outlined in a letter attached to the Cooperative Agreement application. B. Authority of State Attorney General Offices to Accept Federal Assistance Federal assistance can only be awarded to State offices with the authority to accept such assistance. State Attorney General offices without this authority are required to request assistance through an authorized State office. Therefore, EPA requests that when a State Attorney General office submits a Cooperative Agreement application, the office indicate in writing that they possess this authority. The [Name of State] Attorney General office has the authority to accept CERCLA Federal assistance through this Cooperative Agreement. C. Designation of Lead Technical Representative and Lead Attorney/ Coordination Amongst Appropriate State Offices CERCLA enforcement actions are a joint effort, involving individuals with technical and legal expertise. To this extent, enforcement actions require close coordination and cooperation between technical experts and attorneys to ensure successful results. EPA asks the State to identify State officials who will represent these expertise and ensure that coordination between ------- -2- 9831.3 the various State offices involved in the enforcement action are involved in the development and execution of the Cooperative Agreement. The State has designated [name, title, address and phone number] to serve as lead technical representative for the [site]. The State has designated [name, title, address and phone number] to serve as lead attorney for the [site]. All appropriate State offices involved in the execution of the enforcement action planned for the [site] have been coordinated with in developing this Cooperative Agreement application. D. Ability of PRPs to Undertake or Pay Cost of the Response Action (Negotiation, Administrative Action or Litigation) In pursuing [negotiations, administrative action or litigation] against PRPs to undertake a response action, the State believes that (1) a good enforcement case exists against the private parties (i.e. financially able to undertake or pay the cost of the response action) and (2) site conditions meet the elements of proof reguired by the State's legal authorities at the onset of the enforcement action (imminent and substan- tial endangerment). E. Federal Facilities and Federal Agencies States are prohibited from using Federal funds to pursue administrative or judicial enforcement actions against Federal facilities and Federal agencies. The State will immediately notify EPA if Federal facilities and/or Federal agencies are identified as potentially respon- sible parties at sites covered under this Cooperative Agreement, The State will not use funds provided under this Cooperative Agreement to pursue administrative or judicial enforcement action against Federal facilities and/or Federal agencies that may be potentially responsible parties. F. Consistency with Agency Policy and Guidance In pursuing enforcement actions against PRPs, the State must assure that such actions are consistent with the NCP and applicable EPA guidance. For PRP Searches and Issuance of Notice Letters: In conducting PRP searches and notifications funded by this Cooperative Agreement, the State agrees to ensure that such activities be consistent with the National Contingency Plan as published on November 20, 1985 (40 CFR 300) and the following EPA guidance documents. ------- -3- 9831.3 0 Procedures for Identifying Responsible Parties at Uncon- trolled Hazardous Waste Sites - Superfund, OLEC, February, 1982; 0 Procedures for Issuing Notice Letters, OWPE, October 12, 1984; and For RI/FS Negotiations with PRPs; In conducting RI/FS negotiations funded by this Cooperative Agreement, the State agrees to ensure that such activities be consistent with the National Contingency Plan as published on November 20, 1985 (40 CFR 300) and the following EPA guid- ance documents. 0 Participation of Potentially Responsible Parties in Devel- opment of Remedial Investigations and Feasibility Studies under CERCLA, OSWER/OECM, March 20, 1984; and 0 The manuals Guidance on Remedial Investigations Under CERCLA and Guidance on Feasibility Studies Under CERCLA, OERR, June, ,1985. For RD/RA/O&M Negotiations with PRPs; In conducting RD/RA/O&M negotiations funded by this Cooperative Agreement, the State agrees to ensure that such activities be consistent with the National Contingency Plan as published on November 20, 1985 (40 CFR 300) and the following EPA guid- ance documents. 0 Interim CERCLA Settlement Policy, OSWER/OECM/DOJ, December 5, 1985; 0 Preparation of Decision Documents for Approving Fund-Financed and PRP Remedial Actions under CERCLA, OSWER, February 27, 1984; and 0 Superfund Remedial Design and Remedial Action Guidance, OERR, Revised, June 1986. For Administrative Actions and Litigation Against PRPs; In conducting administrative actions and litigation funded by this Cooperative Agreement, the State agrees to ensure that such activities be consistent with the National Contin- gency Plan as published on November 20, 1985 (40 CFR 300) and the following EPA guidance documents. 0 Interim CERCLA Settlement Policy, OSWER/OECM/DOJ, December 5, 1985; 0 RCRA/CERCLA Case Management Handbook, U.S. EPA, August, 1984. ------- -4- 9831.3 G. Timeframe for Negotiations When conducting negotiations funded under a CERCLA Cooperative Agreement, the State must attempt to settle with PRPs within a specified timeframe. EPA asks the State to notify the Agency if a settlement is not reached within this timeframe and to recommend whether negotiations should continue with the PRPs. For RI/FS negotiations; If a settlement is not reached within 60 days after initiating negotiations for private party conduct of the RI/FS, the State agrees to notify EPA and recommend either (1) continuing with negotiations or (2) requesting initiation of a State or Fund-financed RI/FS. If negotiations have begun prior to award of the Cooperative Agreement, the State agrees to notify EPA within 60 days after award. If EPA and the State determine that negotiations should not continue, the State may request that the agreement be amended to redirect remaining funds toward a Fund-financed RI/FS (subject to availability of funds). If EPA and the State determine that negotiations should continue, the State agrees to provide a revised time schedule and date for conclusion of negotiations. For RD/RA/O&M negotiations; If a settlement is not reached within 120 days after initiating negotiations for private party conduct of the RD/RA/O&M, the State agrees to notify EPA and recommend either (1) continuing with negotiations or (2) proceeding with other administrative action or litigation. If negotiations have begun prior to award of the Cooperative Agreement, the State agrees to notify EPA within 120 days after award. If EPA and the State determine that negotiations should not continue, the State may request that the agreement be amended to redirect remaining funds toward other administrative action or litigation. If EPA and the State determine that negotiations should continue, the State agrees to provide a revised time schedule and date for conclusion of negotiations. H. Formalizing Successful Negotiations, Administrative Actions and Litigation In pursuing enforcement actions against PRPs, the State is required to culminate successful actions by issuing an enforceable order, decree or other enforceable document requiring the PRP to conduct the response action in accordance with the NCP and applic- able EPA guidance. The State agrees to culminate a successful [type of enforcement action] by issuing a [type of enforceable document] for the [name of site] , requiring the private parties to conduct the the response action in accordance with the NCP and applicable ------- -5- 9831.3 EPA guidance. The State agrees to ensure that the [type of enforceable document] is consistent with the [Model Adminis- trative Order on Consent for PRP Conducted RI/FS, OSWER/OECM January 31, 1985 (for PRP RI/FS) or memorandum entitled Drafting Consent Decrees in Hazardous Waste Imminent Hazard Cases, OSWER/OECM, May 1, 1985 (for PRP RD/RA/O&M)]. I. Deliverables to be Submitted to EPA EPA must review and consult on appropriate deliverables prior to and during a State's enforcement action initiated under a Cooperative Agreement. The State must also agree to submit all final documents or plans and change orders that substantially change the scope of work funded under the Cooperative Agreement to EPA for review and concurrence prior to issuance and implemen- tation. For PRP Searches and Issuance of Notice Letters; The State agrees to submit the deliverables as described in Section I.B. of the guidance CERCLA Funding of Private Party Search, Notification, Negotiation and Litigation Efforts by States at National Priorities List Sites. Final documents or plans and change orders that substantially change the scope of work funded under this Agreement will be submitted to EPA prior to issuance for review and concurrence to ensure adequacy and compliance with the terms of this Agreement. For Negotiations with PRPs; The State agrees to submit the deliverables and abide by the review and consultation requirements described in Section II.B of the guidance CERCLA Funding of Private Party Search, Notification, Negotiation and Litigation Efforts by States at National Priorities List Sites. Final documents or plans and change orders that substantially change the scope of work funded under this Agreement will be submitted to EPA prior to issuance for review and concurrence to ensure adequacy and compliance with the terms of this Agreement. For Administrative Actions and Litigation against PRPs; The State agrees to submit the deliverables and abide by the review and consultation requirements described in Section III.B of the guidance CERCLA Funding of Private Party Search, Notification, Negotiation and Litigation Efforts by States at National Priorities List Sites. Final documents or plans and change orders that substantially change the scope of work funded under this Agreement will be submitted to EPA prior to issuance for review and concurrence to ensure adequacy and compliance with the terms of this Agreement. ------- -6- 9831.3 Maintaining Enforcement-Related Documents in a Central File The State agrees to maintain a central file of all documents produced, collected, received or issued as part of the enforcement activities funded under this Cooperative Agree- ment. The State understands that these documents may be required for for subsequent State or Federal enforcement action, or future cost recovery activities. K. Community Relations The State agrees to prepare and implement a community relations plan for this site. The State further agrees to comply with all relevant EPA policy and guidance on community relations when implementing the community relations plan throughout the response, especially Chapter 6, Community Relations in Superfund; A Handbook. ------- 9831.3 PROCEDURES FOR REVIEW AND APPROVAL OF ENFORCEMENT-RELATED COOPERATIVE AGREEMENTS PROCEDURE FOR REQUESTING FUNDS AND REVISING THE CASE MANAGEMENT BUDGET - DRAFT COOPERATIVE AGREEMENT APPLICATION 0 The Region should request cooperative agreement funds during September for the following fiscal year, represented as SCAP targets. The SCAP should be revised quarterly, if necessary. The Region should consult with the State prior to revising the SCAP. 0 The State Project Officer, assisted by an EPA Regional Office counterpart, will develop a cooperative agreement application and submit it to the Enforcement Remedial Project Manager (RPM). 0 The Regional Coordinator (RC) in the Compliance Branch will review the draft application in coordination with the Contracts Management Section in the CERCLA Enforcement Division. 0 The RC will send their comments on the application to the RPM. The Region should give the State combined EPA comments (HQ and Region). The State will then prepare a final application for submittal to the Regional Administrator. 2. REGIONAL SUBMITTAL AND HEADQUARTERS SIGN-OFF - FINAL COOPERATIVE AGREEMENT APPLICATION 0 The RC will receive a copy of the final cooperative agreement application, which will have a commitment notice attached. The dollar amount for award, cooperative agreement number and description should already be entered on the commitment notice. 0 The RC will review the final application and get the commitment notice signed by the appropriate Headquarters managers. For CA's of $250K or less, the Director, Office of Waste Programs Enforcement's signature is required. For CA's of over $250K, the AA, Office of Solid Waste and Emergency Response's signature is required. 0 Once signatures have been obtained, the RC will obtain the proper accounting information from OWPE's Program Management and Support Office (PMSO). 0 Once signatures are obtained and accounting information has been entered on the commitment notice, the RC will send only the commitment notice back to the Region for use in awarding the CA. Delegation has given CA award authority to the RA. (The RC will keep the copy of the CA application and a xeroxed copy of the commitment notice on file for oversight purposes. The Compliance Branch will maintain files for these CAs.) The RPM will send a signed copy of the CA document be sent to RC after award and acceptance by the State. ------- |