United States
Environmental Protection
Agency
oEPA
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9832.1
COST RECOVERY ACTIONS UNDER CERCLA
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE: OWPE
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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$EPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Reauest
Originator Information
Name of Contact Person
Janet 'Farella
Lead Office f j
D OERR Q
D OSW Q
OUST
OWPE
AA-OSWER
Mail Code
WH-527
Interim Directive Numi
9832.1
Telephone-Number.
382-2032?
Approved for Review
Signature of Office Director /
Date
Title
Cost Recovery Actions under CERLCA
Summary of Directive
Tnis guidance memo describes the essential elements which the government
will probably be called upon to prove in a cost recovery action;
the assembly and maintenance of a file; some examples of appropriate
documentation for each element of the cause of action; procedures
for processing and negotiating cost recovery claims; and the
mechanics of repayment of any recovery to the Fund.
Key Words: CERCLA, cost recovery, guidance^elements, actions
file, procedures, claims, repayment
Type of Directive (Manual. Policy Directive. Announcement, etc.)
Status
CD Draft
LB Final
New
Revision
3oes this Directive Supersede Previous Directive(s)? j_J Yes | | No Does It Supplement Previous Directive(s)? [ | Yes [~| t
if "Yes" to Either Question, What Directive {number, title)
Review Plan
CH AA-OSWER
d OERR
D OSW
D OUST
D OWPE
II Regions
OECM
D OGC
D OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Signature of OSWER Directives Officer
Date
-> ~ 3o - £t
Date
EPA Form 1315-17 (10-85)
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OSWER t 9832.1
COST RECOVERY ACTIONS
UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT OF 1980
(CERCLA)
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OSWER # 9832.1
COST RECOVERY ACTIONS UNDER CERCLA
TABLE OF CONTENTS
I. Introduction 1
II. Assembling A Cost Recovery Action 3
III. Elements of a Cost Recovery Action 4
A. Evidence of Release or Substantial Threat
of Release of a Hazardous Substance ...... 6
B. Evidence of Responsibility of Defendant(s) ... 9
C. Evidence that Removal or Remedial Action
Taken by U.S. or State is Not Inconsistent
With the National Contingency Plan -11
D. Proof of Costs of Removal or Remedial
Action by the U.S. or a State 13
IV. Procedural Issues . . 16
A. Timing of the Cost Recovery Action 16
B. Statute of Limitations 17
C. Extent of Liability of Responsible Action ... 18
D. The Demand Letter . . . . ; 20
E. Procedure in Event of Response
To Demand Letter 22
1. Negotiating, Teams and Procedures 23
2. Form of Settlement Agreement 26
F. Procedure In Event of
No Response to Demand Letter 27
G. Maintenance and Coordination cf
Evidence In Event of Referral .29
V, Note on Purposes and Use of This Memorandum ..... 31
Appendix A (Costs Recoverable Under CERCLA)
Appendix B (Model Demand Letter)
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OSWER # 9832.1
Appendix c (List of Document.)
Appendix D (Mooel Cost Recovery Pian)
me structure
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OSWER # 9832.1
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
r WASHINGTON DC 20460
AUG 26 1983
MEMORANDUM
SUBJECT: Guidance on Pursuing Cost Recovery
Actions Under CERCLA
FROM: Courtney M. Price
/Special Counsel for Enforcement
-ee M. Thomas
Assistant Administrator for
Solid Waste and Emergency Response
TO: Enforcement Counsel
Regional Administrators
Regional Counsels
Associate Enforcement Counsel-Waste Division
Regional Superfund Coordinators
Air and Hazardous Substance Division Directors
Environmental Services Directors
I. INTRODUCTION
Section 107 of the Comprehensive Environmental Response.
Compensation and Liability Act (CERCLA) provides generally that
past and present owners and operators of a site, and generators
and transporters who contributed hazardous substances to a site,
shall be liable (with certain limitations to be discussed herein)
for all costs of removal or remedial action undertaken by the U.S.
government, a State, or any other person, and for damages to or
loss of natural resources.
While it is highly desirable to obtain removal and remedial
action in the first instance by responsible parties, rather
than by the Environmental Protection Agency (EPA) or a State,
there are and will continue to be many cases in which the Agency
will authorize the use of CFRCLA funds from the Hazardous Substance
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OSWER # 9832.1'
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Response Trust Fund (the Fund) established by CERCLA for these
actions, and thereafter attempt to recover those costs from the
party or parties who are liable under Section 107 of the Act and
other authorities.
Due to the possibility of cost recovery efforts in any case
in which CERCLA funds are expended, the observation, documentation
and preservation of critical facts and response costs is important
to assure that:
* potential evidence concerning the site _!/ and responsible
parties is noted and documented before response activity
or the passage of time obscures or eliminates it;
* physical evidence essential at trial is collected and
'preserved appropriately; and
* sufficient evidence of total costs arid claims paid from the
Fund has been maintained and is available to support recovery
by the government.
This memorandum describes essential elements which the
government will probably be called upon to prove in a cost
recovery action; the assembly and maintenance of a file; some
examples of appropriate documentation for each element of the
cause of action; procedures for processing and negotiating cost
recovery claims; and the mechanics of repayment of any recovery to
the Fund. This guidance must be observed by EPA employees, con-
tractors, and, where appropriate, employees of State agencies
working on a site on which CERCLA funds are expended under an
JL/ . The word "site" as used herein applies to any location where a
release or spill has occurred, and mayhe used interchangeably with
"facility- as defined in CFTRCLA $101(9).
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OSWER # 9832.1
EPA-State .-©operative agreement, in every situation in which CERCLA
funds are expended for site clean up, since each of these sites is
the subject of a potential cost recovery action. The Office of
Waste Programs Enforcement is preparing an additional cost docu-
mentation guidance; please contact Libby Scopino (382-4482) for
assistance. v
II. ASSEMBLING A COST RECOVERY ACTION
The assembly of evidence for a cost recovery action begins
with the first response action taken under Section 104 of CERCLA.
The filing of a cost recovery action should be presumed;accordingly
the collection of relevant documentation is important. Generally,
the government will pursue a cost recovery action when there is a
solvent responsible party.2/ .Where other government action against
the responsible*party is contemplated.or pending, such as a judi-
cial action ur 'er Section 7003 of RCRA or Section 106 of CERCLA to
compel remedial measures at a site, a cost recovery count under
Section 107 of CERCLA for removal or remedial costs can be added
to the ongoinc litigation.
The Regional Program office has the responsibility of
collecting and maintaining the documents used as evidence in
cost recovery actions. In matters which require legal opinions
(such as the legal right of the Agency to enter a facility) or the
preparation of legal documents, the program office should consult
with and obtain the assistance of the Regional attorney or the
appropriate Headquarters attorney.
2/ For a discussion of the factors to be considered in determining
whether to file a cost recovery action, see Part IV.F.
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OSWER # 9832.1
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III. ELEMENTS OF A COST RECOVERY ACTION
Under Section 104 of CERCLA, the U.S. or its authorized
representative may take removal or remedial action at a site
when, inter alia, any hazardous substance is released or there
is a substantial threat of such a release into the environment,
unless EPA determines that such action will be done properly
by the owner or operator or by any other responsible party.
The government may pursue an action under $107(a) for (1)
costs of removal or remedial action incurred by the U.S. not
inconsistent with the National Contingency Plan (NCP), or
(2) claims paid by the Fund for costs of response incurred
by a state not inconsistent with the NCP, or by other parties
not inconsistent with the NCP._3/ Section 104(b) also authorizes
the recovery of costs of sampling, analysis, monitoring and
surveying programs, and certain other costs, including those
3/ There may also be a claim made by trustees under Section
T07(a) (4)(c) of CERCLA for damage to or loss of natural resources.
However, until regulations for assessment of natural resource
damages or destruction are promulgated pursuant to Section 301(c)
of the Act, claims for such damages will be assessed on a case-by-case
basis. The best records available on those damages should be
maintained until specific guidance is developed on that subject.
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for planning, legal and engineering services._£/
Therefore, to successfully pursue a cost recovery action, EPA
should be prepared to introduce evidence demonstrating:
1. release of a hazardous substance or the substantial threa'
of such a release; and
2. the responsibility of the defendant(s}; and
3(a). removal or remedial actions taken by the U.S. or the
State which were not inconsistent with the NCP J>/; and/or
4. .the costs of action taken by the U.S., a State, or
any other person.
The financial condition of a -responsible party is not an
essential element of proof of the cause of action.J/ Even so, the
financial condition of the responsible parties may be considered
in determining the feasibility of a cost recovery action.
J7For a list of costs which are recoverable under CERCLA, see
Appendix A.
J5/ Although Agency policy is to maintain evidence that its
Fesponse activities are not inconsistent with the NCP, the Agency takes
the position that the defendant has the burden of proof on this issue.
J5/ While we do not believe that it is necessary to introduce
evidence that removal and remedial action would not have been
done properly by the owner or operator of a facility or by any
other responsible party, it would be prudent to have available
evidence of efforts by the Agency to obtain private party response
action at the site. The notice letters forwarded by the Agency
to potentially responsible parties and their responses are
examples of such evidence.
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The chief elements of a cost recovery action and the
nature of evidence required to sustain them are discussed .below.
A. Evidence of Release or Substantial Threat of Release
of & Hazardous Substance. [ .
A release of a hazardous substance or the substantial threat
of such release from a facility must be shown. The term "hazardous
substance" includes inter alia, any material designated as hazardous
or toxic under the Clean Water Act, Toxir Substance Control Act,
or the Clean Air Act or designated as a hazardous waste under RCRA
(see 40 CFR 302). The definition should be consulted since it
does not include every pollutant or contaminant. T./
Appropriate documentation of evidence of a release or sub-
stantial threat of release includes field notes, photographs of
the scene, statements from witnesses, statements from owners, or
operators, follow-up narrative reports or memoranda describing .the
scene or observations first hand, samples of air, soil, water or
leachate discharge and laboratory analyses of the samples. Evidence
2/ Section 104(a) of the Act authorizes the President (or his
designer) to take response action whenever there is a release or
threat thereof of a hazardous substance, or whenever there is a
release or substantial threat of a release of "any pollutant, or
contaminant which may present an imminent and substantial endanger-
ment to the public health or welfare...". However, Section 107
refers only to liability of owners, operators, transporters and
generators for costs incurred in responding to releases or threats
of releases of "hazardous substances". It is not clear whether
those persons may also be liable under S107 for costs incurred in
responding to releases or threats of releases of any pollutant or
contaminant which is not a defined hazardous substance, but which
may present an imminent and substantial endangerment. The government
intends to hold such persons liable for those costs under both section
107 of CERCLA and the common law theory of restitution.
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collected must be sufficient to demonstrate this aspect of the
case.
There are three important considerations here.
First, samples, records of the.owner/operator, or other
evidence sufficient to establish the identity of hazardous sub-
stances involved should be collected.
Procedures similar or identical, to those used by the National
Enforcement Investigations Center (NEIC) _§/ should be followed, as
should the requirements of Section 104(e ) (1) (B }, which provides
for furnishing a receipt to the owner/operator for any samples
taken ('and a split sample, if requested). Observance of chain-of-
custody procedures is necessary to demonstrate at trial that
samples analyzed as hazardous substances did, in fact, -originate
at the site.
Collecting more data and documentation about sites than is
reasonably necessary may increase total response costs to an
unduly high level and delay clean-up activities and cost recovery.
The number of samples collected is primarily a matter within the
judgment of the Regional and Headquarters Superfund Offices, and
will necessarily depend to a great extent on the site and the
affected areas of the environment. These Offices should consult
with the Regional Counsel prior to collecting samples. However,
the Agency should generally collect only enough samples to determine
(1) that a hazardous substance is present on the site; (2) that a
8/ NEIC Policies and Procedures Manual, May, 1978 (rev., Dec.
T981), EPA Document No. 330-9-78-001-R.
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OSWER # 9832. '.
release of the hazardous substance is substantially threatened or
has occurred: and (3) what response is appropriate. Only unusual
circumstances (e.g., to satisfy doubts over validity o-f previous
samples, to determine whether concentrations of hazardous substances
are increasing, etc.) would justify incurring significant additional
costs for any additional sampling and analysis.
Samples should be taken in accordance with EPA-approved
protocols and procedures developed by NEIC and contained in its
Policies and Procedures Manual referred to above or similar
procedures.
Second, collection of this evidence should begin immediately
upon the start of any investigation into whether some response
activity (including sampling and surveying) may be needed at the
site in response to a release or threat of release. Passage of
time or deliberate interference by other parties may literally
destroy the evidence. Similarly, a long delay between the initial
observation and the trial, or the initial observation and the .
recordation of that observation, will make testimony by witnesses
about the site more difficult. Photographs of the scene before,
during and after the response action are frequently helpful in
preparing witnesses to testify, and in providing a visual record
to the Court of conditions that prompted the response activity.
Field notebooks and the results of laboratory analysis are
critical in showing the conditions that existed at the site and
establishing a potential link to the defendant. Sampling and '
analysis should be conducted with particular concern for accuracy,
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_ OSWER #9832.1
detail, completeness and quality, since -these documents are likely
to be subject to close scrutiny by responsible parties and the
court. The NEIC has developed inspection and analysis procedures
to assure high quality evidence and documentation for trial.
Observance of NEIC procedures assures a consistently high quality
of evidence, and should be followed by EPA employees, other federal
agencies, contractors, and State agencies which have entered into
an EPA cooperative agreement for response using CERCLA funds.
Third, for ease of assembling the case and presenting it for
trial, the following people should be identified by name, relevant
qualifications or connection to the case, and information about
how 'to contact them in the future: 1) persons who participated
in the site inspection, sampling, analysis or photography; 2)
persons who may have historic or current information from personal
observation, 3 ) people who gave or refused to give, statements.
B. Evidence of Responsibility of Defendants )
In most cases, the liability of defendants will be demonstrated
by establish: c, the elements in subsections (l)-(4) of $107(a).
EPA personnel have a variety of techniques to gather evidence
connecting the hazardous substance with the potentially responsible
party or parties. For example, a deed or lease evidences the
responsibility of owner or operator of the site. Less formal
evidence can also be helpful in tracing rcsponsiblity. The operator's
presence at the site over a period of time will usually be noted
by employees, neighbors, law enforcement officers, competitors or
others close to or interested in such activities. Those observations
should be recorded in signed statements or affidavits. In addition,
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the activities of operators of a site may require a license or-
permit under State or local laws and regulations. The appropriate
agencies should be consulted to determine whether they have any
record of activities by an operator of the site.
The problem of linking a transporter or generator of a hazardous
substance to a site is frequently a more difficult undertaking.
The following detection sources may prove fruitful. Often, operators
generators, and transporters have records of business transactions.
Drums located on-site may bear labels or markings with the name of
a generator; -these drums or labels should be preserved, if possible,
or photographed, and the photographs ia.^eied for identification
and future use as possible evidence. Under certain circumstances
the case development team may decide to perform a chemical analysis
of the waste to assist in establishing the similarity between.the '.
wastes and a particular company's process._9/ (Information regarding
parties and sites may also be obtained by use of letters issued
under authority of P.CRA Section 3007 and CERCLA Section 104fe)).
Again, local residents, law enforcement officials or compe-
titors may be sources of information on transporters of material
to the site or in the general vicinity. Employees or former
employees of a generator or transporter may he willing to discuss
the disposal practices of their employers, and if so, signed
statements or affidavits, if possible, should be obtained from
them.
^/ Information on the composition of waste streams associated
wTth various industrial processes may be obtained from the Hazardous
and Industrial Waste Division (WH-565), Office of Solid Waste, U.S.
Environmental Protection Agency, 401 M Street, S.W., Washinaton» D.C.
20460.
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C. Evidence That Removal or Remedial Action Taker. By the U.S. or
State Is Not Inconsistent With The National Contingency Plan
Pursuant to Section 104 of CERCLA, after information is
gathered that a release has occurred or is threatened, a variety
of actions may be taken by EPA or a State. Among those actions
are:
(i) Investigations, monitoring, surveys, .testing and other
information gathering as may be necessary and appropriate to identify
the existence and extent of the release or threat thereof, the
amount, source and nature of the hazardous substances, and the
extent of danger to public health, welfare or the environment. In
addition, such planning, legal, fiscal, economic, engineering,
architectural and other studies or investigations may be undertaken
as necessary and appropriate to plan and direct response action;
(ii) "Removal actions", as the term is defined in Section.
101(23) of CERCLA,'and which'includes, without limitation, security
fencing, provision of alternative temporary water supplies, anr5
temporary evacuation and housing of threatened individuals. In
addition, EPA may take such other action as may be necessary
to prevent, minimize or mitigate damage to public health, welfare
or the environment, such as removal of materials, temporary diking
and other easily accomplished actions; and
fiii) "Remedial actions", as the term is defined in Section
101(24) of CERCLA, including installation of a clay cover, dredging
or excavations, collection of leachate and runoff, on-site storage,
treatment or incineration, provision of alternative water supply
and clean-up of released hazardous substances. Subject to some
restrictions, it may also include permanent relocation of residents
and business and community facilities, and off-site transportation,
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OSWER # 9832.1
storage, treatment or disposal of hazardous substances.
In a cost recovery action, two factors are important in the
development and preservation of evidence regarding the appropriate-
ness of the action taken by EPA or the state. These factors are:
A. The action was not outside what CERCLA allows.
B. The action taken must be 'not inconsistent" with the NCP.
Therefore, the NCP should be referred to and all persons involved in
the decision-making process should be familiar with its requirements
and limitations before decisions regarding actions are made ID/.
Those decisions should be documented by notes, memoranda, letters
and other written records maintained in the appropriate files.
Under the NCP, remedial actions must also be shown to provide
a cost-effective response. A cost-effective remedy is one which,
among the alternatives examined, is least costly but technologically
feasible, reliable and adequately protects public health and the
environment. In addition, under the Section 104 (c)(4) balancing
test, the Agency should document remedial actions to refute any
claims that the remedy was not cost-effective. Measures of cost-
effectiveness includes the protection afforded public health,
welfare and the environment by the remedy. In immediate removal"
actions it will be especially important to document the circumstances
which justify the need for immediate action. As provided in .section
300.65 of the National Contingency Plan, an immediate removal is
appropriate when the lead Agency determines that the initiation
of immediate removal action will prevent or mitigate immediate
risk of harm to human life or health.
!£/ The National Contingency Plan is published in 40 CFR Part 300,
47 Fed. Reg. 31180 (July 16, 1982).
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OSWER #9832.1
Immediate removals are appropriate in such situations as: 1)
human, animal, or food chain exposure to acutely toxic substances;
2) contamination of a drinking water supply; 3) fire and/or
explosion; or 4) similarly acute situations.
Evidence of the cost-effectiveness of a particular remedial
action may be demonstrated by the following evidence which is
contained in summary form in the record of decision:
' studies showing the technical feasibility and probable
cost of alternative remedial actions on the particular
site;
0 information that shows the degree of risk to public health,
welfare and environment presented by the particular site
(i.e., population threatened, media affected, toxicity of
the hazardous substance involved, etc.);
c other documentation generated in consideration of the
various factors required by Section 300.68 of the NCP.
All such evidence should be documented by written studies,
reports, letters, memoranda, notes, minutes of meetings and any
other record of the relevant bases for taking a particular remedial
action.
D. Proof of Costs of Removal or Remedial Action by the U.S.
or a State
Collecting evidence of costs of removal or remedial action
taken on a site is likely to be a time consuming task. Documents
must be obtained from a variety of participants in the cleanup
activity: agencies, contractors, and others. The success of
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government cost recovery actions depends upon the use of good
bookkeeping and record collection techniques.
Certain costs expended on removal and remedial action are net
recoverable. For example, no recovery under CERCLA is permitted
where response costs resulted from application of a FIFRA-registered
product (see Section 107(i>), or from a Federally-permitted release
(see Section 107(j)). In borderline cases, it should be assumed
that removal and remedial action costs are recoverable and records
developed and maintained with this expectation.
A variety of mechanisms are available for tracking costs.
While EPA prefers the uniformity of a single accounting system,
the particular method of accounting may vary if it ensures accurate
record keeping and preservation of all costs attributable to a
particular site. To further this objective, cooperative agree^
ments between EPA and a State, or contracts betwee'n EPA and. a
contractor for performance of response activity on a site, should
specifically require that accounting procedures used by the State
.or contractor be approved by EPA.
An accounting and expense-tracking system is already in
place at EPA, and should be followed closely by all EPA personnel,
contractors and State agency personnel working on CERCLA-funded
sites. This system generally involves the assignment of a unique
accounting number to each specific site, and the charging of time,
material and other expenditures to that account number. The site
number is assigned by Headquarters based on a request from the
Regional Office and confirmation of an approved Federal response.
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In addition, activity codes have been devised under which different
activities and phases of site clean-up and remedial action may be
described. Questions regarding the specifics of these accounting
procedures should be directed to the Financial Management Center
in the Office of Emergency and Remedial Response (FTS 382-2208).
Evidence of the cleanup costs should be preserved and avail-
able for introduction into evidence. This could include such
documentation as receipts for money paid for goods or services;
cancelled checks; contracts and any amendments thereof; purchase
orders; invoices; records of time spent, where the claim includes
the value of such time; travel records and vouchers; and records
of all correspondence or other communication regarding the actual
costs, as well as progress reports on the work performed. The
names, addresses and telephone numbers of all persons maintaining
the regular bi: . iness records of contractors, agencies or persons
outside EPA should also be maintained for readv reference, ll/
ll/ The Emergency Response Division of the Office of Solid Waste
and Emergency Response of EPA is developing a field manual entitled
Cost Control Management for Superfund Removal" for immediate and
planned removal actions. This manual presents a management system
for On-Scene Coordinators for controlling/ verifying, and documenting
all costs incurred in a removal action.
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QSWER # 9832.1
IV. PROCEDURAL ISSUES
A. Timing of the Cost Recovery Proceeding
While the Office of Waste Programs Enforcement will work with
the Regional Program Office in setting priorities for cost recovery,
the following basic timing guidelines are offered. Cost recovery
'actions for expenses incurred in immediate or planned removals
will normally not be initiated until after such response activity
has been completed, since the time required for those activities
is relatively short. However, a cost recovery action need not be
delayed where the Agency establishes a multiphase response action
(e.g., surface clean up, groundwater clean up). A cost recovery
action can begin before completion of the last phase of response
activity for costs expended to date and also for calculable future
costs. . . .
Where one stage of cleanup follows another in fairly rapid suc-
cession, cost recovery actions should be initiated after the cleanup
is fully completed. In situations where there are substantial delays
between phases, however, the Agency may decide to commence a recovery
action at an intermediate stage. In these instances., negotiations
regarding recovery of expenditures may be combined with discussions
with responsibile parties over prospective cleanup activities.
Generally, an action will not be filed for recovery of a remedial
investigation/feasibility study or the cost of design prior to the
filing of an action for recovery of construction costs.
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OSWER # 9832.1
B. Statute of Limitations
CERCLA does not contain a time limitation provision within
which a cost recovery action must be brought. In the absence of
a specific statutory provision, the Federal statute of limitation
would apply. There is some doubt at this time as to precisely
which limitation period will be applied to a cost recovery action.
Limitations for actions brought by the United States for money
damages are contained in 28 USC Section 2415, which distinguishes
between actions based in tort or in contract. Because cost
recovery actions are essentially quasi-contractual actions in
the nature of restitution, a six year statute of limitations if
any, should apply. However, since it is possible that a court
may see CERCLA actions arising out of the tortious conduct of
others, cost recovery actions should be brought within three
years after the right of action accrues.
The date the cause of action accrues is also subject
to debate. In United States v. The Barge Shamrock et al, 635
F.2d 1108, 1110 (4th Cir., 1980), cert, den. 102 S.Ct. 125 (1981),
the Fourth Circuit held th-at a cost recovery action under the
Federal Water Pollution Control Act arising out of an oil spill
first accrued when the government completed the cleanup operation.
On the other hand, a defendant might well be expected to argue
that the cause of action accrues at the time funds are first
expended on the site. In order to avoid argument on this point,
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OSWER # 9832.1
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and to eliminate a potential bar to recovery, the Agency should
attempt to commence all cost recovery action within three years of
the date dollars are first expended.
C. Extent of Liability of Responsible Parties
While CERCLA Section 107(a) identifies parties who are
responsible for the costs of response actions at a site, the
statute does not expressly set forth the the nature of that
liability. Language which imposed "strict, joint and several"
liability on the responsible parties was dropped from earlier
drafts in the final, compromise bill, and replaced with a definition.
in Section 101 of "liable" or "liability" v;hich refers to the standard
of liability which obtains under Section 311 of the Federal Water
Pollution Control Act. Section 311 is a strict liability statute.
City of Philadelphia v. Stepan Chem. Co., 5*4 f. Supp. 1135, 1140.
n.4 (E.D. Pa. 1982). Moreover, section 311 imposes joint ann
several liability, U.S. v. M/V Bio Sam, 681 F.2d 432,4.19 (5th Cir.),
on pet. for reh., 693 F.2d 451 (5th Cir. 1982).
The position of EPA is that in appropriate circumstances, joint
and several liability is applicable under CERCLA. This position.is'
supported by reference to section 311, by the legislative history of
CERCLA 12/, and by Section 107(e)(2) of CERCLA, which provides that
nothing in CERCLA "shall bar a cause of action that an owner or
operator or any other person subject to liability under this section...
has or would have by reason of subrogation or otherwise against any
person."
127126 Cong. Rec., S.19964 (daily ed. Nov. 24, 1980);
T26 Cong. Rec., H.11707 (daily ed. Dec. 3, 1980).
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The Department of Justice has interpreted this section as confirm-
ing a defendant's right of contribution against other responsible
parties, which is only of value to a defendant who has been
held jointly and severally liable 13/.
Joint and several liability- is traditionally 'imposed when
the actions of two or more defendants cause a single, indivisible
result, (Prosser, Law of Torts, (4th ed. 1971), Sec. 52.) That
determination may involve factual issues. Therefore, where
two or more parties in the categories of responsible parties listed
in Section 107(a) contribute hazardous substances to a facility
which are being released, threaten to be released, or are contributing
.to the release or threat, the Agency may argue that those parties
are jointly and severally liable for the costs of responding to
that release or threat. ' . ._
This of course does not foreclose the Agency from entering
into consent decrees or other appropriate agreements with multiple
responsible parties in which they agree to allocate the Agency's
response costs among themselves. The Agency is primarily con-
cerned with achieving cleanup of hazardous sites, preferably by
private action, and there are many reasons why responsible parties
nay wish to share the costs. However, this is primarily a matter
for the responsible parties, and if they cannot agree among
themselves on an appropriate allocation of responsibility, EPA
should proceed with legal action on a theory of joint and several
liability.
13/ Letter dated* December 1, 1980, from "Alan A. Parker, Assistant
Attorney General, Office of Legislative Affairs, to Hon.
James J. Florio, 126 Cong. Rec. H11788 (daily ed. Dec. 3, 1980).
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OSWFR # 9832.1
-20-
D. The Demand Letter
The first formal step in the commencement of a cost recovery
proceeding will be the issuance of a letter of demand from EPA to
the potentially responsible party or parties for payment of
costs expended on the site. A demand letter should be sent to
all parties in a case who have been identified as potentially
responsible (i.e., past and present owners/operators of a site
and generators and transporters who contributed hazardous sub-
stances to a site), and should be issued after all response
activity has been completed, or at the completion of one phase
of a multi-phase response where the entire process will require
an extended period of time.
Before a demand letter is sent, the potential case should
be analyzed for the elements in part III above, including ident-
ification of all potentially responsible parties (including
responsible individuals in corporations where appropriate) and
assembly of cost information. At the time the demand letter is
sent, the Agency should be able to answer reasonable questions
posed by a recipient of the letter. Regional personnel should
have referred the case to Headquarters (or recommended against
an action) and Headquarters staff should have resolved their
position on a referral so that the Government is prepared to
file a complaint if the response to the demand letter is unsat-
isfactory.
The letter should be issued where response costs have been
incurred under CERCLA, regardless of whether a decision has been
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.21- OSWER # 9832.1
made to initiate a judicial proceeding for cost recovery.
The demand letter should contain the following points:
0 reference to EPA's authority to administer CERCLA and
the Fund established thereunder (or reference to
authority to recover costs where the response activities
for which reimbursement is sought occurred prior to
CERCLA};
0 the location of the site;
0 the presence of a hazardous substance which was re-
leased or threatened to be released;
e in general terms, the dates and types of response activity
undertaken by EPA at the site;
0 any notice given to the recipient prior to or during the
response activity, allowing the recipient the opportunity
to undertake the work or pay the expense 'of response;
* the total cost of the response activity 14/ broken down into
general categories;
14/.The amount stated in the demand letter should be the total
obligated by the Agency to be expended on the site, rather than
the amount shown by Agency records to have been expended on the
site at the time the letter is prepared. This is to avoid problems
caused by delays in payment of response costs after a demand letter
has been forwarded to the responsible party. Even so, available
records should be assembled as soon as possible. Where it
is expected that future costs will be paid (e.g., in the
next phase of response activity)/ the letter should also
clearly state that in addition to the sums already obligated
and spent, the Agency expects to expend additional sums on
the site for which claim will be made against the responsible
party. Of course/ in a judicial proceeding in the cost
recovery action, the Agency will be required to prove the
actual amounts spent from the Fund.
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_22- OSWER # 9832.1
0 a general statement that the Agency believes that the
recipient is a responsible party and liable for the sum
set forth;
e a demand for payment;
0 a statement that the recipient of the letter should contact
EPA within a specified period (normally thirty days) tc
discuss the account and the recipient's liability therefor;
0 a warning that if recipient fails to contact the Agency
within the specified time, a suit may be filed in the
appropriate U.S. District Court for recovery of the
claim; and
" the name, address and telephone number of a representative
of the Agency who the recipient should contact. A sample
demand letter is--attached to this memorandum as .Appendix B.
The primary responsibility for preparation of the demand
letter will be in the Regional Program Office. The Regional
Program Office should consult with the representatives from
OWPE, Regional Counsel, and Office of Enforcement Counsel-Waste.
The demand letter will be sent through the Office of Waste Programs
Enforcement for the signature of the Director of OWPE unless
that requirement is specifically waived. If a case is referred
to DOJ, the DOJ case attorney should sign the demand letter.
E. Procedure In Event of Response From Potential Defendant
In many cases, the recipients of demand letters will contact
the- Agency and express interest in discussing their status as a
responsible party. The Agency encourages such negotiations.
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-23-
OSWER # 9832.1
CERCLA money is limited; Agency cleanup activities deplete the
fund and money must be recovered from the parties responsible
for the release or threat of release. Therefore cost recovery
through negotiation or litigation is necessary to clean up the
greatest number of sites. Cost recovery should involve the
coordinated efforts of knowledgeable legal and technical personnel
at both the Regional and Headquarters offices as explained below.
1. Negotiating Teams and Procedures
Upon receipt of a response to the demand letter from a
potentially responsible party, the contact person named in the
demand letter will notify the Associate Enforcement Counsel for
Waste, the Regional Counsel, the Director of OWPE and the Regional
Superfund office. Each of those offices will, upon notification,
identify the person who will represent it on the negotiating
team. (The Department of Justice may participate in .cases which
are likely to result in consent decrees or litigation.)
The formulation of the Agency's position results from the
collaboration of the Team. In some policy decisions the entire
Team has relevant background to participate in the decision making
process. However the specialized legal or technical talent on
the Team should be efficiently used.
The Team has the responsibility for developing a proposed
negotiating schedule. The proposed schedule should have the
concurrence of the Associate Enforcement Counsel for Waste and
the Director, OWPE in cases of national significance.
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,, OSWER £ 9832.1
- 24-
Some factors which should be considered in the development
of this schedule are the number of potentially responsible parties
who will take part in the negotiations; the nature of the potential
defenses; the amount of available data linking particular parties
to the site; the amount of the claim, and other related matters.-
Sufficient time should be allowed for the negotiation process to
take place, but it is important that a deadline be established as
a goal for achieving a settlement, and beyond which the negotia-
tions will net continue, absent clear indications that a settlement
is imminent. A reasonable period of time for most negotiations is
60-90 days; negotiations should not be extended without Headquarters
approval. A referral should be submitted by the Region and approved
by Headquarters, and a complaint should be prepared and approved
by the Department' of Justice, prior to the conclusion of negotiations
so that an.action may be filed if negotiations are not' resolved by
the deadline.
a. Case Team Leader. Contemporaneous with the formation of
the Negotiating Team, Regional and Headquarters program managers,
in consultation with OLEC, will select a program official to serve '
as the Case Team Leader. The Case Team Leader's function will be
to:
focus efforts to develop, in advance of negotiations, 'the
Agency's negotiating strategy and position on issues that
may arise during the course of the case;
ensure the coordination of legal and technical staff par-
ticipation on the team by scheduling and chairing regular
case review sessions; and
0 define the Agency's objectives in accordance with applicable
Agency guidances and policies.
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-25- OSWER # 9832.1
On occasion, the Team may be unable to develop a consensus
on a cost recovery issue. When this occurs, the Case Team Leader
will prepare a written explanation of the issue for resolution
by the appropriate supervisory staff.
b. Lead Negotiator. Regional Counsel and Headquarters Enforce-
ment Counsel managers, in consultation with the Director of OWPE,
will select the lead Agency attorney for the case.
Although a Regional Counsel attorney will usually be designated
as the lead Agency attorney, in cases of national significance or
which may be precedent-setting an attorney from OEC-Waste may be
selected. The extent of Headquarters involvement will be decided
on a case-by-case basis by the Assistant Administrator for Enforce-
ment, (or the Special Counsel for Enforcement until the Assistant
Administrator position is established).' The Department of Justice
should also be consulted and invited to participate in negotiations.
of cases which are likely to result in a consent decree or litigation,
particularly in multiparty and complex cases.
The Team's lead attorney will be responsible for conducting
cost recovery negotiations. Although the attorney is primarily
responsible for explaining and defending the Team's position during
negotiations, he or she may request other Team members' assistance
in articulating the Team's position to opposing parties.
At the initial negotiation session, the lead attorney should
inform opposing parties that while the Team has authority to negotiate,
any agreements are subject to the approval of Enforcement Counsel and
OSWER. The opposing parties should also be advised that the Agency
has established a deadline for settlement. The deadline should be
disclosed tc tne responsible parties. After the deadline, the
Agency will take judicial action.
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26~ OSWER # 9832.1
2. Form of Settlement Agreement
CERCLA allows the Agency several ways the Agency could
settle a cost recovery action:
a consent decree
an administrative order
a memorandum of agreement.
However, as a matter of policy, the Agency has decided that a
consent decree is required in most cases. A forthcoming policy
will set out the requirements for using consent decrees and another
one will address administrative orders.
- Again, it should be pointed out that the negotiating Team
is not authorized to enter into a binding agreement of any type
with the responsible parties in the absence of specific authori-
zation from the Enforcement Counsel and OSWER. Consent decrees
must also be approved by the Department"of Justice and the reviewing.
court (after a thirty day public comment period). A draft of any
document which is to be the subject of negotiation should, of
course, be reviewed before commencement of negotiations by appropriate
supervisors of the negotiating Team at the Region and Headquarters,
and any document which the negotiating Team and their supervisors
believe to be acceptable for settlement should be forwarded to the
Assistant Administrator for Enforcement, the Director of OWPE and
the Department of Justice at the earliest possible time to allow for
adequate review.
The Agency may allow some settlements in which the responsible
party agrees to pay the claim in periodic payments where the party
is unable to pay in a lump sum, or where there is other legitimate
reason for delayed payment. Before considering installment payments,
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-27-
OSWER # 983.'.!
however, the Economic Analysis Division of the Office of Policy
and Resource Management (FTS 382-2764) and the Financial Management
Division of the Office of Administration (FTS 382-5135) should be
consulted in order to obtain a review of the financial condition
of the responsible party and to determine any applicable interest
charges.
Payment of cost recovery claims should be made payable to the
U. S. Environmental Protection Agency and should be mailed to:
U.S. Environmental Protection Agency
Accounting Operations Office
P.O. Box 2971
Washington, D.C. 20013
Attn: Collection Officer for Superfund
The check or other form of payment should specify the name of
the site at which the activity took place. The lead attorney is
responsible for furnishing copies of judgments, decrees or agreements
for payment of cost recovery claims as early as "possible to Financial
Reports and Analysis, Room 3617M, U.S. EPA, 401 M Street, Washington,
D.C. 20460, for establishment of a proper account.
F. Procedure in Event of No Response to Demand Letter
If no response is received to the demand letter, a final
determination must be made of whether the facts of the case justify
the Agency taking further steps to pursue the cost recovery claim.
A decision whether the case should be referred to DOJ should be
made by the Region as well as staff at Headquarters at the time .
the demand letter is drafted. This decision will initially be
made by the Regional Administrator, based on the recommendation of
the Regional Superfund Office and the Regional Counsel.
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OSWER # 9832.1
-28-
Relevant factors to consider include:
(a) the strength of evidence connecting the potential defen-
dant(s);
(b) the availablility and merit of any defense. Possible
defenses under Section 107 of CERCLA are generally that
the release and consequent response action was the result
of:
(1) an act of God;
(2) an act of war; or
(3) an act or omission by an unrelated third party as
to whom the owner/operator had no contractual relations
and did not fail to exercise appropriate care against
the foreseeable acts and omissions of that third party.
(c) the quality of release, remedy and expenditure documentation
by the Agency, a state or third party;
(d) the financial ability of the potential defendant(s) to
satisfy a judgment for the amount of the claim or to pay
a substantial portion of the claim in settlement;' and
.(e). the statute of limitations.
In considering the ability of the potentially responsible
party or parties to pay, the Regional Offices should make use of
the Financial Assessment System, developed by the Economic Analysis
Division of the Office of Policy and Resource Management and
managed by NEIC, to assess the financial condition of most
potentially responsible parties.
The determination of the Regional Administrator to initiate
a cost recovery action shall be forwarded by a memorandum from
the Regional Administrator to the Assistant Administrator for
Enforcement for concurrence in the same manner as the referral of
other matters for litigation. A decision not to initiate a cost
recovery action must be reflected in a memorandum to OWPE. An
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-29-
OSWER # 9832.1
affirmative decision must be made by the Regional Administrator Jj]
each case in which CERCLA funds are expended, whether that decision
be to proceed or not to proceed. This is necessary because of the
Agency's accountability for management of the Fund.
After OEC concurs on pursuing the cost recovery action,
OEC refers the case to the Department of Justice, together with
the names of the appropriate Headquarters and Regional personnel
who will be involved in the case. If the Department of Justice
fails to concur, the originating Regional office is advised of such
non-concurrence, together with the reasons therefor, and recommend-
ations as to whether additional information should be provided for
DOJ's reconsideration. Even though a Region may recommend against
pursuing a cost recovery action, the Assistant Administrator for
OSWER may decide on his own initiative that such an action is
warranted. This recommendation would then be sent to OEC for
consideration. '
G. Maintenance and Coordination of Evidence in Event of Referral
There will inevitably be logistical difficulties in maintaining
and coordinating the production of the mass of data, contracts,
cost records, and other evidence generated in a response activity.
It is very important to provide for an orderly method of expeditiously
providing that information during the course of a cost recovery
action for use during case development, discovery, and trial.
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OSWER If 9832.1
Each Agency, office, contractor or other person participating
in a CERCLA response activity should maintain documents relaten to
the activity for a period of not less than six (6) years after
all response activities are finished (consult Appendix C for a
list of these necessary documents). 15/
The Age.ncy's Financial Management Division will maintain
and periodically update the cost expenditure tracking system for
each site referred to above, so that an itemization of all costs
attributable to a particular site can be quickly obtained. When
a determination is made that a case should be referred to the
Department of Justice for filing (or, if necessary, during the
time that the demand letter is being prepared or the case is being
considered for referral), a request can be made of the persons,
firms or agencies involved in a response activity for copies of
its records. At that time, a complete file of all records involved
in the particular case can be compiled and delivered to DOJ, with
copies of the complete file made available to appropriate Regional
and Headquarters legal and technical personnel.
157 The period of six years is necess?ry because of the pos-
sibility that the claim may not accrue upon the first expenditure.
Additionally the litigation may be protracted; documents must
be kept for the term of the litigation.
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OSWER # 9832.1
-31-
V. Note on Purposes and Use of This Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of attorneys and other employees of the U.S.
Environmental Protection Agency. They are not intended to nor
do they constitute rule-making by the Agency/and may not be
relied upon to create a right or benefit, substantive or pro-
cedural, enforceable at law or in equity, by any person. The'
Agency may take any action at variance with the policies or
procedures contained in this memorandum, or which are not in
cor.pliance with internal office procedures that may be adopted
pursuant to these materials.
We trust that this memorandum generally covers -the subject . '
of procedures to be involved in cost recovery actions under
CE'RCLA, but if you have any questions or problems involving this
subject matter, please call Russell B. Selm.an, Office of Legal
and Enforcement Policy, at FTS 426-7503.
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OSWER # 9832.1
Appendix A
Costs Recoverable Under CERCLA
In order to identify records which must be developed and
maintained for a cost recovery action, it is essential to know
those costs which may be recovered from a responsible party.
Various sections of CERCLA provide for recovery of certain elements
of costs expended for site clean-up. We have attempted below to
compile a list of those costs which are recoverable, and the
sections of CERCLA which authorize recovery of those costs.
This list is very general and not exclusive.
The listed costs a're in general categories, using language
directly from CERCLA, and a determination will necessarily have
to be made in each case whether a particular expenditure is
within the categories of recoverable costs. In this regard, EPA's
position is th'at the intent of Congress was to authorize recovery
of all costs directly related to clean-up of a site, and therefore
the costs should be broadly construed to fall within these cate-
gories.
Cost CERCLA Section
1. Investigations, monitoring, surveys, $$104(b), 107(a ) (1)(4)(i
testing, and other information-gathering (providing for recovery
necessary or appropriate to identify the of costs for removal
existence and extent of the release or actions, which, as
threat thereof, the source and nature defined in $101(23)
of the hazardous substances, pollutants include actions taken
or contaminants involved, and the extent under Cl04(b}).
of danger to the public health, welfare
or the environment.
2. Planning, legal, fiscal, economic Same
engineering, architectural, and
other studies or investigations
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Appendix A
OSWER # 9832.1
-ii-
necessary or appropriate to plan
and direct response actions.
3. Planning, legal, fiscal, economic, same
engineering, architectural and
other services necessary to recover
the cost of response actions.
4. Planning, legal, fiscal, economic, same
engineering, architectural and
other services necessary to enforce
the provisions of the Act (CERCLA).
(This could include costs incurred
in prosecuting an immiment endanger-
ment action under §106).
5. All costs of (A) removal and (B) §107(a)(4)(A)
remedial action incurred by the U.S.
Government or a State not inconsis-
tent with the NCP. Actions for which
such costs may be incurred are-
(A) Removal Actions (§101(23)):
(1) the clean-up or removal of
released hazardous substances .
'. rom the environment;
(2) such actions as may be
necessary taken in the event
of the threat of release of
'azardous substances . into the
environment;
(3) such actions as may be necessary
to monitor, assess or evaluate
the release or threat of release;
(4) the disposal of removed material;
(5) such other actions as may be
necessary to prevent, minimize or
mitigate damage to public health,
welfare or the environment which
may otherwise result from a
release;
(6) any monitoring to assure actions performed
by other parties adquately protect public
health, welfare and the environment, and
meet EPA criteria;
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Appendix A OSWER # 9832.1
-iii-
(7) specific examples contained in
«101(23) (without limitation):
a. security fencing or other
measures to limit access;
b. provision of alternative
water supplies;
c. temporary evacuation and housing
of threatened individuals
d. action taken under $104(b) of
CERCLA;
e. any emergency assistance provided
under the Disaster Relief Act of
1974.
(B) Remedial Actions (5101(24)):
(1) actions consistent with permanent
remedy taken instead of or in
addition to removal actions, to
prevent or minimize the release
of hazardous substances into the
environment so that they do not.
migrate to cause substantial danger
to present or future public health,
welfare or the environment.
(2) Specific examples contained in 5101(24) (without
limitation):
(a) storage;
(b) confinement
(c) perimeter protection using
dikes, trenches or ditches;
(d) clay cover;
(e) neutralization;
(f) cleanup of released hazardous
substances or contaminated
materials;
(g) recycling or reuser
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OSWER # 9832.1
Appendix A
-iv-
(h) diversion;
(i) destruction;
(j) segregation of reactive vastes
(k) dredging or excavation;
(1) repair or replacement of
leaking containers;
(m) collection of leachate and runoff;
(n) on-site treatment or incineration;
(o) provision of alternative water
supplies;
(p) any monitoring reasonably required
to assure that such actions protect
public health, welfare and the
environment;
(q) costs of permanent relbcation of
residents, businesses and community
facilities (where relocation/ alone
or in combination with other factors,
is more cost-effective than and
environmentally preferably to trans-
portation, storage, treatment or
disposal off-site of the hazardous
substances).
(3) Remedial actions do not include:
(a) off-site transportation of hazardous
substances;
(b) off-site storage, treatment or
disposal of hazardous substances;
unless it is determined that such actions are
(A) more cost-effective than other remedial
actions; (B) will create new capacity to manage
(in compliance with Subtitle C of RCRA) hazardous
substances in addition to those at the affected
site; or (C) are necessary to protect public
health, welfare or the environment from a present
or potential risk which may be created by further
exposure to the continued presence of the
hazardous substances.
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Appendix A
-v-
QSWER # 9832.1
6. Any other necessary costs of response
incurred by. any other person consis-
tent with the NCP. "Response" actions
include both "removal" and "remedial"
actions ($101(25). /See1list of
removal and remedial actions above.)
7. Damages for injury to, destruction of,
or loss of natural resources, including
the reasonable cost of assessing such
injury destruction or loss. (See note,
below)
"Natural resources" include (5101(16)):
(a) land;
(b) fish;
(c) wildlife;
(d) biota;
$107(a) (4)(E)
$107(a)(4)(C)
air;
(f I water;
(g) groundwater;
(h) drinking water supplies;
(i) other such resources belonging
to, managed by, held in trust
by, appertaining to, or otherwise
controlled by the United States,
any state or local government, or
any foreign government (includes
resources of the Fishery Conser-
vation and Management Act of 1976).
NOTE; CERCLA §301(c) provides for the promulgation of regulations
not later than two years after enactment of the Act for the
assessment of damages for injury to destruction of or loss of
natural resources resulting from a release of a hazardous
substance. See footnote 3 in the Memorandum for further
explanation on recovery of these damages.
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OSWER # 9832.1
Appendix B
(Model Demand Letter)
XY2 Corp.
Someplace, State 00000
Re: Name, location of site
Dear Sir or Madam:
On or about , 198_, there were
releases and threatened releases into the environment of
hazardous substances [and pollutants and contaminants] from
the facility located at or about .
[In addition, there were, releases and threatened releases of
pollutants and contaminants that may present an imminent and
substantial danger to the public health or welfare.)
[On or about , 19 , EPA gave [oral] notice
to you (which was confirmed] by letter of
, 19 , advising you regarding the referenced
facility and that you are a party who may be liable for money
expended by the government to take corrective action at the
facility. EPA offered you the opportunity to discuss with EPA
your voluntarily taking action necessary to abate any releases
or threats of releases of . hazardous substances [and polluants
and contaminants] from the facility... You did- not . undertake
the necessary actions.]
In accordance with the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C.
$9601 e_t seq. , [and other authorities (insert where pre CERCLA
or non CERCLA expenditures)] the [State of , pursuant
to an agreement with and funding by the (insert if State lead)]
United States Environmental Protection Agency (EPA undertook
response action using funds provided for such actions. The
action began on or about and continued to on
or about. . EPA's response action entailed
the (describe generally what was done).
The cost of the response action (performed] [caused
to be performed by EPA at the facility] (was) fis currently]
approximately S . (Insert the amount obligated
by the Agency to be expended on the site, not the amount
actually expended according, to Agency records.) [The Agency
anticipates expending additional funds in the future under
authority of CERCLA for additional response activity which the
Agency deems appropriate to be performed at the site.] Enclosed
is a statement summarizing the expenditures to date.
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OSWER # 9832.1
Information available to EPA indicates arc~c oth«r
things that you (choose one or more, of the bracketed clauses
as appropriate:) [are/were at the time of the response
action the owner/operator of the facility] [were the owner/
operator of the facility at the time of disposal o-f hazardous
substances at the facility] [did, by contract, agreement or
otherwise, arrange for disposal or treatment, or arranged for
transport for disposal or treatment of hazardous substances
[and pollutants and contaminants]at the facility [accepted
hazardous substances [and pollutants and contaminants] for
transport to the facility which was selected by you]. Pursuant
to the provisions of Section 107(a) of CERCLA [and other author-
ities (insert where pollutants or contaminants involved and
where other law involved)], we believe that you are liable for
the payment of all costs expended on the site to the Hazardous
Substance Response Trust Fund established pursuant to Section
221 of CERCLA, which is administered by EPA.
We hereby request that you [or a group of parties
potentially responsible for the site] make restitution by pay-
"ment of the herein stated amount plus interest- [together with
any sums hereafter expended by the Agency on the site pursuant
to authority of CERCLA]. [The names of other potentially
responsible parties receiving this request for payment are
enclosed with this letter to facilitate organization among
the identified parties concerning payment.) If you [or an
organized group of potentially responsible parties] desire to
discuss y'our liability with EPA,'please contact the person
named below in writing not later than thirty' (30) days after
the date of this letter. We will otherwise assume that you
have declined to reimburse the Fund for the site expenditures
and will subsequently pursue civil litigation against you.
Sincerely,
Contact Person:
(Name)
[Title]
[Address]
cc:: Enforcement Counsel
Regional Counsel
State Agency
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OSWER # 9832.1
Appendix C
The following pages constitute a search guide that may be used by the
*
Regional enforcement program in gathering documentation to support a cost
recovery action. The search guide format is a chart with four columns, headed
as follows: "Document", "Originator", "EPA Contact" and 'Regional File
Location".* All of the documents listed will probably not be available in all
cases, nor will each one necessarily enhance the body of evidence in every case.
It must be decided on a case-by-case basis exactly which pieces of documentation
should be used as supporting evidence. The search guide was meant to be an
exhaustive list of documents that should be considered. It is suggested that
the persons conducting the file search for supporting documentation pull out
each document on the list if it is available. It can be decided at a later time
which of the documents are useful as evidence given the facts of the particular
case.
Please note th; :. the search guide covers only documents that would be
useful in supporting the first three elements of proof discussed in this
guidance: proof of the release, link between the party and the site and
consistency with th. NCP. Cost documentation will be the subject of another
guidance document that is currently under development.
* The fourth column, "Regional File location", has meaning only if the Region
uses the filing system described in Appendix E.
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I. Evidence of a Release or the Threat of a Release
Document
Notification Reootd
pursuant to Sec.
103(a) of CERCLA
Notification Record
pursuant to Sec. 103(c)
of CERCLA
Record of notification
of EPA-HO-Bnergency
Response Division,
FPA Regional
Administrator or
other EPA official
Compliance
Investigation
Report pursuant to
Section 104(e) of
CERCLA
Other Compliance
Investigation or
Inspect ion/Aud i t
Reports pursuant^
to statutory
authority (e.g.,
sec. 3013 of RCRA)
Originator
Owner/Operator
of facility
Gov't. officials
responding to the
problem (Local,
State or Federal)
Owner/operator of
facility
Appropriate Fed.
officials
federal/State
investigator
Federal/State
investigator
EPA Contact
National Response
Center (NRC)
EPA-Reg ions
EPA-HO-Hazardous
Site Control Division
EPA-Reglon, CISC
EPA-R.A.
0 EPA-HQ-Emergency
Responsible Division
EPA-Region, CERCLA
Enf ./Crmpl lance
Project Manager
State Enforcement/
Compliance Agency
EPA-Region, Approp.
En f./Comp 11 ance
Section
State Enforcement/
Oornpl lance Agency
Probable File Location*
NCR (see page 21, II,
bullet II)
Remedial Responset
Discovery/Hazard
Ranking File/Regions/
HO
NRC
EPA-HO-Emergency Response
Division Removal Response
File
Remedial Response:
Discovery/Hazard
Ranking File
Remedial Responsei
Discovery/Hazard
Ranking File
m
co
*Uhless otherwise noted, this assumes the documents are located in the Regional files
and assumes the Regions are using the file structure outlined in Appendix E.
-------
-2-
I. Evidence of a Release or the Threat of a Release (continued)
Document
Originator
EPA Contact
Probable File Location
Notes ftcm phone
calls, correspondence,
photographs, or other
form of tandem or
incidental observation
Signed witness state-
ments (describing the
conditions leading
up to the release
and the release)
Gov't. Officials
(Local, State,
Federal)
Public
Owner/Operator
Facility
Employees or
Contractors assoc.
w/ facility
Federal/State
Investigators
Local Officials
Public
EPA-Region, Enf./
Gnmpl iance Project
Manager
State Enf./
Ocntpliance Agency
Municipal Government
Offeoe (e.g.. Public
Health or Police Dept.)
EPA-Region, Waste Mgt.
Division Proj. Manager
State Agency
Remedial Responset
Discovery/ Hazard
Ranking File
Remedial Response:
Discovery/ Hazard
Ranking File
=**=
CO
GO
KJ
-------
-3-
I. Evidence of a Release or the Ttueat of a Release (continued)
Document
Photographs, drawings
depicting site condi-
tions.
Maps and photographs
(including aerial
imagery and other
remote sensing
techniques)
Documents relating to
the physical lay-out
of the facility (e.g.,
blueprints, pipe loca-
tion diagrams, security
provisions, monitoring
well locations, etc.)
Documents relating
to procedures, man-
agement practices used
at the facility..
Originator
Owner/Operator or
Employee of Facility
EPA-O6C/Response Team
* State-OSC/Reaponse
Team
REIVFIT Contractors
local Officials
Public
EPA-NEIC
EPA Environmental
Photographic Inter-
pretation Center -
Wartenton, Va.
Owner/Operator of
the Facility
EPA Contact
EPA-Region, Waste
Mrjt. Division
Project Manager
0 State Agency
Owner/Opera tor
of the Facility
Employees of the
Facility
EPA-Region, Waste
Mrjt. Division or
Fiiv. Services Div.
Project Manager'
State Agency
EPA-Region, Waste
Mrjt. Division or
Env. Services Dtv.
Project Manager
State Agency
EPA-Region, Waste
Mrjt. Dlv. project
Manager-
State Agency
Probable File Location
i
0 Remedial Responsei
Imagery or Discovery/
Hazard Ranking File
Remedial Response:
Imagery File
Remedial Response:
Discovery/Hazard
Ranking File
0 Remedial Responsei
D1 scove r y/l la zar d
Ranking File
o
VD
CO
U)
-------
-4-
I. Evidence of a Release or the Ttueat of a Release (continued)
Document
' Documents relating to
test results (e.g., flash
point) and multi-media
environmental sampling
and analysis
° Documentation of
information used
to determine
sampling locations,
frequency and types
(water, soil, air,
wildlife, leachate,
hazardous wastes
from containers
Summary charts or
interpretive reports
regarding the analy-
tical data.
Affidavits prepared
by field and labor-
atory staff Indica-
ting all procedures
and protocols fol-.
lowed (including
health and safety
consideration)
Originator
EPA-OSC/Resp. Team
State-OSC/Response
Team
ROfFIT Contractor
Laboratory
EPA-OSC/Resp. Team
State-OSC/Response
Team
RFH/FIT Contractor
Laboratory
EPA Contact
EPA-Region, Waste
Mgt. Divlslon/Env.
Services Division
Project Manager
EPA-Region. Waste
Myt. Divlsion/E>iv.
Services Division
Project Manager
Probable File Location
Remedial Response:
Discovery/ Hazard
Ranking File
Remedial Response:
Discovery/ Hazard
Ranking File
Same as above
EPA-Reglonal Tech.
Staff
State Agency Tech.
Staff
Same as above
Same as above
0 Same as above
Same as above
Same as above
-------
-5-
I. Evidence of a Release or the Threat of a Release (continued)
Document
Documents relating
to Evidence Audits
by Contractor
Evidence Audit Teams
(CEAT)
Chain of Custody
Documents
Documents relating
to topographic,
hydrgeological,
ecological or
demographic
information in
the vicinity of
the facility
(e.g., studies,
reports, articles,
field observation
notes)
Originator
NEIC
EPA Contact
* Same aa above
Probable File location
Regional Office
Files
Owner/Operator of
the Facility
Local/State Agencies
(e.g.. Housing or
Transportation Auth-
ority, Planning
Commission)
Federal Agencies
(e.g.. Weather
Bureau, U9GS,
Soil Conservation
Service, NQAA, DOT,
Army Corps of
Engineers, Coast
Guard, etc.)
local librariees
Local Universities/
Colleges
Public
Federal/State/Local
Officials or Investi-
gators
R01/FIT Zone
Contractor
EPA or State OSC
EPA-Region, Waste
Myt. Division or
Env. Services Div.
project Manager
State Agency
Remedial Response:
Discovery/Hazard
Ranking File
=«=
CD
U>
-------
-6-
CM
n
oo
CTl
o
[. Evidence of a Release or the Ttueat of a Release (continued)
EPA Contact
Document
Documentation of
physical character-
i sties of each
geological strata
Ih tough f iels or
Documentation
of physical
characteristics
of ea. geological
sttata through
field or lab
testing (e.g.,
permeability, head
measurements
Documentation
supporting ground-
water and surface
water flow estimates
(rates and directions)
Documentation of
non-drilling
investigative
techniques
(e.g., resistivity
or seismic surveys)
i
Well logs and descrip-
tions of geological
strata
Originator
Same as above
0 Same as previous
page
0 Same as above
0 Same as above
Same as above
0 Same as previous
page
Same as above
Same as above
0 EPA-OSC/Response
Team
State-QSC Response
Team
RtH/FIT Contractor
0 EPA-Region, Waste
Mgt. Dtv. or Env.
Services Dlv.
Project Manager
State Agency
Probable Pile location
Same as above
0 Sane as previous
page
" Same as above
0 Same as above
0 Remedial Response!
D i scovery/Hazar d
Ranking File
-------
-10-
Kviitenco of a Release ot the 11 u eat of a He lea so (continued)
C-J
ON Dtxrunent
t*rk>cuments telating
w
EEto any insutanoa
Qcoverage cat lied
by facility
Documents relating
to any prior legal
act ions(e.g.,
txmplaints, discovery
documents, court
Older, settlement
agreements,
negotiation records)
Documents relating
to prior accidents
(e.g., fites,
explosions) or
medical problems
experienced by
employees
Ot iginator
Owner/Opera tor of
a Facility
0 Insutanco Agent
Counsel for Owner/
Operator of Facility
Regional Counsel
EPA-IO. OLEC
U.S. Department of
Justice
State Attorney Gene-
ral's Office or
State Agency Counsel's
Office
Owner/Operator of
a Facility
Local Public Health
Agency
Local Police or File
Departments
kliVloyees of a
Facility
EPA Contact
0 EPA-Reg ion, Waste
Mgt. Division
Project Manager
0 State Agency
0 EPA-llQ, OLEC
Kxjional Enf.
Counsel
0 State Attorney
General's Office
Probable File Location
Remedial Responses
Disooveiy/Hazaid
Ranking File
Remedial Responses
Disooveiy/Hazaid
Ranking File or
Enf01cement File
0 EPA-Reg ion. Waste
Hjt. Division
Project Manager
0 State Agency
Remedial Responses
Disoovbiy/Kaz-aidd
Ranking File
o
=«=
oo
bJ
to
-------
-11-
II. Evidence Linking Responsible Patties to the Site
A. Owners and Operators
Document
Deed, Title History,
Mot tgaye or Lien
Information on
Property
permits held by a
facility (e.g.,
NPDES, RCRA,
building construction)
Manifests or other
business records
(e.g., bills of
lading, contract
documents with
haulers, inventory
records) which
provide information
on quantity and
type of substance
0 Lease
Originator
Owner/Operator of
Facility
Title Search Company
City or County Record
Office
Bank of Lending
Institution
Owner/Operator of
facility
EPA-Region Enforce-
ment/Ccnipl lance
Section
State Permitting
Agency
Owner/Operator of
the Facility
Transporter
* Generator
Owner of Property
Operator of Facility
EPA Contact
EPA-Region, Waste Manage-
ment Division Project
Manager
' State Agency
KPA Regional Counsel
EPA Regional Counsel
EPA-Rag ion. Appropriate
Enfor cement/Compllance
Section
State Permitting Agency
EPA-IIO, OSW
0 EPA-Region, Waste Management
Division Project
Manager
0 State office responsible
for manifests
EPA-Region, Waste Management
Division Project Manager
State Agency
EPA Regional Counsel
Probable File location
Remedial Responsei
Discovery/Hazard
Ranking File or
Enforcement File
Remedial Responsei
Discovery/Hazard Ranking
File or Enforcement File
Remedial Responses
Discovery/Hazard Ranking
File or Enforcement File
Remedial Response:
Discovery/Hazard
Ranking File or
Enforcement File
-------
II. Evidence Linking Responsible Parties to the Site (continued)
A. Owners and Operators (continued)
Docunent
Corporate structure
leootds (e.g.* annual
reports, Dun fc Brad-
stteet reports. In-
corporation docu-
ments)
Vehicle identification
information or
equi|ment rental
tlocuments (e.g.,
license or registration
records, contracts or
lease agreements)
Records or other
documents found
at the facility
during an
investigation
(e.g., utility
records, tax
receipts or
cer tificates,
real estate
records, labels
on containers)
Originator
NEIC Computer Files
(SEC and Dun fc
Bradstreet Reports
Owner/Operator of
Facility
Industrial director-
ies, manuals, etc.
Corporate Divisions
of State Secretary
of State Offices
Small Business
Administration
Motor Vehicle Bureau
Rental businesses
Vehicle Owner/Trans-
porter
Local truckstops
Owner/Opera tor or
Bnployees of a
Facility
EPA-OSC/Response Team
State-OSC/Response
Team
Federal or State
Investigators
REM/FIT Contractors
EPA Contact
CPA-Region, Waste Manage-
ment Division Project
Manager
State Agency.
EPA-Regional Counsel
Probable File tucation
Remedial Responset Dlscov
Hazard Ranking File or
enforcement File
EPA-Reg ion. Waste Manage
ment Division Project
Manager
0 State Agency
0 EPA-Regional Counsel
0 EPA-Jtogion,Waste Manage-
ment Division project Manager
State Agency
EPA-F«>gional Counsel
Remedial Responses
Discovery/Hazard
Ranking File or
Enforcement File
Remedial Response:
Discovery/Hazard Ranking
File or Enforcement File
-------
-I J-
II. KC*ig;nce Linking Responsible Patties to the Site (coriWTfued)
A. Qwnot3 and Operators (continued)
Document
0 Incident Reports
(e.g., fires,
explosions)
Or iginator
Local police or fite
departments
Owner/Ope i a tot or
Employee of a Facility
Interviews, affidavits Past Employees of
or signed statements
by persons with know-
ledge regarding past
activities at the
site
Interview notes from
discussions with
persons who are
knowledgeable
about past site
activities
such as employees,
local officials,
residents of
the area, local
industries, etc.
Historical'information
documenting period of
activities at the site
Administrative infor-
mation requests and
responses under
RCHA S3907 and CERCLA
$104
Facility
Local Officials or
Residents
Other Persons
EPA-OSC/Response Team
Other Federal or
State Investigators
State-OSC/Response Team
REM/FIT Contractors
EPA Oontact
0 EPA-Region, Waste Manage-
ment Division Project
Manager
0 Stato Agency
EPA-Regiona1 Counsel
* EPA-IQ-Emergency Response
Division
EPA-1IQ-Emergency Response
Division
0 EPA-RegIonaI Waste Manage-
ment Division Project
Manager
0 EPA-Regional Counsel
State Agency
EPA-Region, Waste Manage-
ment Division Project
Manager
State Agency
EPA-Reg ionaI Counsel
Probable File Location
EPA-HO-Eme«gency Response
Di vi 8 lon/Remova I
Response File
NCR
Remedial Responses
Discovery/Hazard
Ranking File or
Enforcement File
Remedial Responset
Di scover y/Hazard
Ranking or Enforce-
ment File
VD
OO
CO
-------
-II
II. Evidence Linking Responsible Patties to the Site (continued)
B. Generators (continued)
Document
Shipping documents,
manifests or other
business records
(e.g., bills of
lading, vouchers,
contracts with
haulers) which
provide
information
on responsible
parties
Affidavits or
signed statements
by persons
with knowledge
regarding past
activities at
the site
Records or other
documents found
at the facility
during an
investigation
(e.g., utility
records, tax
receipts or
certificates, teal
estate records,
labels on
containers)
Originator
Owner/Operator of
Facility
Generator
0 Transporter
Past Employees of
Facility
Local officials or
Residents
Other Persons
EPA-OSC/Response Team
State-OSC/Response
learn
Federal or State
Investigators
REM/FIT Contractors
EPA Contact
EPA-HQ, OSW
EPA-Region, Waste Manage-
ment Division Project
Manager
Stale Office responsible
for manifests
EPA-Regional Counsel
Probable File location
Remdial Response! Discovery/
Hazard Ranking File or
enforcement
0 EPA-Reyion, Waste Manage-
ment Division Pioject
Manager
EPA-Regional Counsel
State Agency
EPA-Region, Waste Manage-
ment Division Project Manager
State Agency
El'A-Regional Counsel
Remedial Responset Discovery/
Hazard Ranking File or
Enforcement Pile
Remedial Response: Discovery/
Hazard Ranking File or
Enforcement File
-------
in
If. Evidence Linking Responsible Patties to the Site (continued)
B. Generators (continued)
Document
Interview notes
frim discussions
with persons
wtio are knowlegeable
alxxit past site
activities
such as employees,
local officials,
residents of the
area, local
industries, etc.
Originator
EPA-OSC/Response Team
Other Federal or
State Investigators
State-OSC/Response
Team
REM/FIT Contractors
EPA Contact
EPA-Reglon, Waste Manage-
ment Division Ptoject
manager
State Agency
EPA-Regional Counsel
Probable File location
Remedial Responses Discovery/
Hazard Ranking File ot
Enforcement File
0 Photographs
dcxxwentlng
activities at
the site
0 Corporate structure
records (e.g.,
annual reports, SBC
reports. Dun fc
Bradstreet reports,
incorporation
documents)
NEIC Computer Files
(SBC and Dun &
Bradstreet Reports)
Owner/Operator of
Facility
Industrial director-
ies, manuals, etc.
Ooporate Divisions
of State Secreetary
of State Offices
Snail Business
Administration
EPA-Region, Waste Manage-
ment Division project
Manager
State Agency
EPA-Regional Counsel
Remedial Responses Discovery
Hazard Ranking File or
Enforcement File
-------
-16-
II. Evidence Linking Responsible Patties to the Site (continued)
B. Generators (continued)
Document Originator EPA Contact
Ptobable File Location
Documents ielating
to sampling and analysis
which indicate wastes
found at a facility ate
of the same nature as
tespnnsible party's
wastes
Documents found
during remedial
activities
relating to the
identification
of responsible
parties
(e.g., labels,
cartons, records)
EPA-OSC/Response Team
RU4/FIT Contractor
Project Contractor
0 EPA-Region, RSPO
Remedial Response!
Remedial Implementation
File
-------
-T7-
II. Evidence Linking Responsible Patties to the Site (continued)
C. Transporters
Document Originator EPA Contact
Ptobable File Location
Manifests, shipping
docunents or other
business docunents
(e.g., bills of
lading, vouchers,
contracts with haulers)
which provide info.
on responsible parties
Owner/Operator
Facility
Generator
Transporter
EPA-HQ, OSW
0 KPA-Region, Waste Manage-
ment Division Project
Manager
0 State office responsible
for manifests
EPA-Regional Counsel
0 Remedial Response: Discov-
ery/Hazard Ranking or
Enforcement File
Records or other
documents found
at the faciulity
dur ing an
investigation
(e.g., bills
utility records,
tax receipts or
certificates, teal
estate record,
labels on
containers)
Interview notes
from discussions
with persons, who
are knowlegeable
about past site
activities such
as employees,
local officials,
residents of
the area)
EPA-OSC/Response Team
State-OSC/Kesponse
Team
Federal or State
Investigators
REM/FIT Contractors
EPA-OSC/Response Team
Other Federal or
State Investigators
State-OKC/Response
Team
0 REM/FIT Contractors
0 EPA-Regton, Waste Manage-
ment Division Project Manager
State Agency
EPA-Regional Counsel
Remedial Responses Discov-
ery/Hazard Ranking or
Enforcement File
EPA-RegIon, Waste Manage-
ment Division Project Manager
State Agency
EPA-Regional Counsel
Remedial Responset Discov-
ery/Hazard Ranking or
Enforcement File .
-------
-18-
II. Evidence Linking Responsible Patties to the Site (continued)
C. Transporters (continued)
Docunent
Originator
EPA Contact
Ptobable File Location
Affidavits or
signed statements
by pet sons with
knowledge regarding
past activities at
the site
Past Employees of
Facility
Local Officials or
Residents
Otlier persons
EPA-Region, Waste Manage-
ment Division Project Manager
State Agency
0 EPA-Regional Counsel
Remedial Responses Discov-
ery/Hazard Ranking or
Enforcement File
Vehicle
identification
information or
equipment rental
documents (e.g.,
1icense of
registration
records,
contracts
or lease
agreements)
Photographs
documenting
activities at
the site '
Motor vehicle
Bureau
Rental businesses
Vehicle Owner
* Local truckstops
Owner/Operator or
Employees of a
Facility
EPA Region, Waste Manage-
ment Division Project
Manager
State Office responsible
for manifests
EPA-Regional Counsel
Remedial Response: Discov-
ery/hazard Ranking or
Enforcement File
CO
U)
t\J
-------
-19-
II. Evidence Linking Responsible Patties to the Site (continued)
C. Transporters
Document
Corporate
structure
records (e.g.,
annual reports,
ShC reports,
IXin and
Htadstteet
reports,
incorporation
documents
Originator
NEIC Computer
Piles (SEX: and
Dun ft Bradstreet
Reports)
Owner/Operator of
Facility
0 Industrial
directories, manuals,
etc.
0 Corporate Divisions
of State Secretary
of State Offices
Small Business
Administration
EPA Contact
FPA-Region, Waste Manage-
ment Division Project Manager
0 State Agency
EPA-ftegional Counsel
Probable Pi le Locat ion
Itemedla1 Responses Discover
Hazard Ranking Pile or
Enforcement Pile
0 Permits held by
a facility (e.g.,
building or
construction permit
or NPDES) which
contain responsible
party information
Owner/Operator of
Pacility
Permitting Agency
(Local, State or
Federal)
EPA-Roglon, Waste Manage-
ment Division Project Manager
State Agency
LPA-toegional Counsel
Remedial Responset Discovery
Hazard Ranking Pile or
Enforcement Pile
-------
-20-
III. Sequence of Events, Including Consistency with NTP
A. Geneta1
Document
0 List of Patties
issued Notice
Letter(a),
dates on which
letters were
issued and copies
of lettets
Response to Notice
Letter(s)
CotTespondence
and notes ftcm
otaI ccmiunications *
with potential
responsible patty
regarding
negot ia-
tions/settlement
Settlement proposals *
and supporting '
documents (e.g.,
technical studies
conducted by
potential responsible
pa-, :/)
Originator
EPA-Regional Counsel
* EPA-Reg ion, Waste
Management Division
Project Manager
Potential Responsible
Patty
Potential Responsible
Party
EPA-Regional Counsel
EPA-Regional Counsel
EPA-HO-OLEC and OWPE
Potential Responsible
Party
Settlement Agreements EPA-HO-OLEC and OWPE
and supporting doc. EPA-Regional Counsel
(include internal EPA * Potential Responsible
approval memos, press Party
releases, etc.)
EPA Contact
EPA-Regional Counsel
EPA-Regional Counsel
EPA-Regional Counsel
EPA-Regional Counsel
EPA-Regional Counsel
Probable File Location
0 Remedial Response} Enforce-
ment File
0 Remedial Responsex Enforce-
ment File
Remedial Responset En for
rnent File
0 Remedial Responset Enfor
ment File
Remedial Responsei Enfor
ment File
CO
OJ
NJ
those cases where partial settlements are reached with the patties or only SOIB of the
parties negotiate a settlement.
-------
-21-
III. Sequence of Events, Including Consistency with NCP (continued)
A. General (continued)
Stmmary of negotiation
sessions, offers and
responses and copies of
all documents and cor-
lespondenoe.
Documentation of the
use of expett witnesses
during negotiations
(expense and time reports)
B. Immediate Removals*
1. Response Initiation
Document
0 Notification Reootd
putsuant to Sec. 103(a)
or (c) of CERCLA
EPA-HO-OWPE
EPA-Reg. Counsel
0 EPA-Reg. Counsel
Remedial Responset
Enforcement Pile .
0 Record of notification
of EPA-IIO-ERD or other
appropriate federal
office (e.g., EPA
Regional Administrator,
U.S. Coast Guard)
Originator
Owner/Operator of facility
Carrier or other transporter
Government officials
responding to the problem
(Local, State or Federal
Appropriate federal official
EPA Contact
0 National Response
Center (NHC)
9 EPA-IO-ERD
'° EPA-Region, O6C
Probable File location
NRC
EPA-Region, Removal
Response Pile
U.S. Coast Guard
district
Removal Response Pile
* Under certain circumstances, the removal response may be led by the U.S. Coast Guard. Therefore,
the source of the evidence and where it is available from will vary, depending on which entity,
EPA or USCG, has the lead.
-------
-22-
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
1. Response Initiation (continued)
Document Originator
Record of Preliminary EPA-OSC
assessment and Initial U.S. Coast Guard
Inspection of site (e.g., State-OSC
field notes, sampling TAT Contractor
data, responsible party
information
Documentation concerning the
site conditions that necessitated
an imnedlate removal and the basis
f. . choosing a particular response
Documentation of approval
by EPA-RegIon and
subsequent EPA-HQ-ERD
notification (when HQ
a|>ptoval Is not
required)
Documentation of approval
by EPA-HO-OSWER (when
HQ approval is required)
EPA Regional Administrator
U.S. Coast Guard-
district director
EPA-HO-AssIatant
Administrator for OKWER
U.S. Coast Guard district
director
EPA Contact
EPA-Ragion, OSC
Probable File Location
0 Removal Response Pile
EPA-Region, OSC
EPA-UQ-ERD
Removal Response Pile
0 EPA-IQ-OSWER
EPA-Reglon, OSC
Removal Response Pile
Record of RRT or NRT
notification, if
appropriate
EPA-OSC
USCG-06C
Regional Response Team
(RRT)
National Response Team
(NRT)
Removal Response Pile
=«=
UD
00
U)
NJ
.[ "... , :r->
-------
-22-
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
1. Response Initiation (continued)
Document Originator
Record of Preliminary EPA-OSC
assessment and initial U.S. Coast Guard
inspection of site (e.g., State-OBC
field notes, sampling TAT Contractor
oata, responsible patty
information
0 Documentation concerning the
site conditions that necessitated
an immediate removal and the basis
foe choosing a particular response
0 Documentation of approval
by EPA-Reglon and
subsequent EPA-HQ-ERD
notification (when HQ
approval is not
required)
Documentation of approval
by EPAHO-O6WER (when
HO approval Is required)
EPA Regional Administrator
U.S. Coast Guard-
district director
EPA-IQ- Assistant
Administrator for OKWER
U.S. Coast Guard district
director
EPA Contact
EPA-Region, O6C
9 EPA-Region, O9C
0 EPA-IIQ-ERD
0 EPA-IO-OSWER
EPA-Fteglon, O6C
Probable File Location
0 Removal Response File
Removal Response Pile
Removal Response Pile
0 Record of RRT or NRT
notification, if
appropriate
EPA-OSC
USCG-06C
0 Regional Response Team
(RKT)
0 National Response Team
(NRD
Removal Response Pile
o
GO
CO
-------
-23-
III. Sequence of Events, Including Consistency with NCP (continued)
D. Immediate Removals (continued)
1. Response Initiation (continued)
Document
Record of the decision
that the immediate
removal action was
completed
Record of the decision
to exceed the $1 tffl
or 6-month cutoff, if
applicable
0 Record of the decision
as to whether further
action is required at
the site
Record of US Coast
Guard National Strike
Force (USOJ-NSP
notification and
request for
assistance
0 Record of RRT '
notification and
request for assistance
(e.g., the Environ-
mental Emergency
Response Unit (EERU)
Originator
EPA-OSC
EPA Contact
EPA-OSC
EPA-OSC
EPA-OSC
EPA-OSC
EPA-OSC
EPA-OSC
EPA-OSC
Probable File Location
Removal Response Pile
Removal Response Pile
' Removal Response Pile
Removal Response Pile
EPA representative of
RRT
USCG-OSC
Emergency Response Tea
(ERT)
Regional Response Team
(KKT)
Removal Response Tile
o
=«*=
10
oo
CO
-------
-24-
III. Sequence of Event a, Including Consistency with NCP (continued)
U. Inmecliate Removals (continued)
1. Response Initiation (continued)
Docuncnt Originator
0 Record of notification EPA-OSC
of federal agencies (e.g.,
FtMA, IIHS)
0 Initial POLREP (also
known as a 10 Point
document)
2. Contractor Selection
EPA-OSC
USCG-OSC
State-OGC
TAT Contractor
EPA Contact
EPA-Reglon, OSC
Appropt late federal
acjency
EPA-tegl«n. OSC
EPA-Rcxjion, RSPO
Probable File Location
0 Removal Response Pile
0 femoval Response File
Pot removals requiring
less than $2500
00 EPA Form 1900-48, Older
for Services-Emergency
Resjwnse to Hazardous
Substance Release
00 EPA Form 1900-50,
justification for
Nr>riorn^»e t i t i ve
Procurement '
(JNCP)
EPA Form 1900-51,
Determination of Price
Reasonableness
EPA-OSC/Response Team EPA-Region, OSC
TAT Contractor
EPA-OSC/Response Team EPA-Region, OSC
TAT Contractor
EPA-OSC/Response Team EPA-teglon, OSC
TAT Contractor
I/mediate Removal
Response File
0 Intnediate Removal
Response File
Immediate Removal
Response File
=»=
00
U>
NJ
-------
-25-
III. Sequence of Events, Including Consistency with NCP (continued)
B. fnmediate Ranovals (continued)
2. Contractor Select ion (continued)
Ct iginator
EPA-06C
0 USC&-OSC
State-OSC
TAT Contractor
Document
Scope of Wbrk (SOW)
and cost projections
For removal3 requiring mote
than $2500
00 EPA Form 1900-49, Notice EPA-OSC/Response Team
to Proceed with Emergency Project Contractor
Response to Hazardous
Substance Release
EPA Form 1900-50, Justi- EPA-OSC/Responso Team
f1cation for Nonoompetitive TAT Contractor
Procurement (JNCP)
EPA Form 1900-52, Author- ° EPA-OSC/Response Team
ity to Negotiate an TAT Contractor
Individual Contract
EPA Contact
Probable Pile Location
EPA-Region, OSC Removal Response Pile
0 EPA-Reglon, OSC Immediate Removal
Response Pile
" EPA-Region, OSC Immediate Removal
Response Pile
0 EPA-Rcglon, OSC
0 Immediate Removal
Response Pile
o
=«=
OO
CO
-------
-26-
III. Sequence of Events, Including Consistency with NCP (continued)
H. Inroediate Removals (continued)
2. Contractor Selection (continued)
Originator
0 EPA-OSC/Response Team
* TAT Contractor
Document
EPA Form 1900-53,
Authority to Use
a Time and Materials
Contract
00 EPA Form 1900-54, Memo-
randitn to the File-
Synopsis Exemption
For procurement of services
from state and local
governments
EPA-OSC/Response Team
TAT Contractor
EPA-OSC/Response Team
TAT Contractor
EPA Contact
EPA-Region, OSC
EPA-Region, OSC
0 EPA-Region, OSC
Probable File Location
Immediate Removal
Response File
Immediate Removal
Response File
Immediate Removal
Response File
00 EPA Form 1900-56, Letter
Contract for State or
Local Government Response
to Emergency Hazardous
Substance Release
00 EPA Form 1900-50 (see
list above)
EPA-OSC/Response Team
Project Contractor
EPA-OSC/Responso Team
TAT Contractor
0 EPA-Region, OSC
0 EPA-Region, OSC
Immediate Removal
Response File
0 Immediate Removal
Response File
00 EPA Form 1900-52 (see
list above)
° EPA Form 1900-54 (see
list above)
EPA-OSC/Response Team EPA-Region, OSC
TAT Contractor
EPA-OSC/Response Team EPA-Region, OSC
TAT Contractor
i
0 Immediate Removal
Response File
0 Immediate Removal
VD
00
00
N)
-------
-27-
III. Sequence of Event a, Including Consistency with NCP (continued)
B. Dimedlate Removals (continued)
2. Contractor Selection (continued)
Document Originator
EPA Contact
Probable Pile Location
EPA Form 1900-57, Deter- EPA-OSC/Response Team
mination and Findings TAT Contractor
Methods of Contracting
0 EPA-Region, OSC
Immediate Removal
Response File
EPA Form 1900-8, Procure-
ment Request/Requisition
(foe additional funds)
EPA Form 1900-30, Modi-
fication of Contracts
Amendment of Solicitation-
Modification of Contract,
Standard Form 30
EPA Form 1900-58, Notice
Regarding Work Stoppage
EPA-Hp-Contracts
EPA-OSC/Response Team
TAT Contractors
EPA-IO-Contracts
EPA-HO-OERR Director
EPA-Hp-Contracts
Operations Office
EPA-OSC/Response Team
TAT Contractor
0 EPA-Raglon, OSC
0 EPA-Region, OSC
0 EPA-Region, OSC
EPA-Region, OSC
Immediate Removal
Response File
Immediate Removal
Response File
9 Immediate Removal
Response File
e Immediate Removal
Response File
o
-------
-28-
III. Sequence of Events, Including Consistency with NCP (continued)
B. Imnedlate Ranovals (continued)
3. Response Implementation
Document Originator EPA Contact
Probable File Location
0 Inter-Agency
Ay t cement 3
Memoranda of
Under standing
(for reimbursement
of Supet fund
related activities
by federal
response agencies
such as Department
of Justice,
Army Corps of
Engineers)
0 (lea 1th and Safety
Plan
Connunity Relations
Plan
Entry and exit logs
(ft-- personnel, vehicles,
equipment and materials
Daily OSC logs
EPA-HQ-06WER
0 Appropriate Federal
agency
0 EPA-Region, OSC
EPA-Rsgion, OSC
0 EPA-Ragion,
Project Officer
Project Contractor
EPA-OSC/Response Team
TAT Contractor
* EPA-OSC
EPA-Region/HO-Public
Affairs Office
EPA-Region, Regional
Project Officers
State Agency
EPA-OSC/Response Team EPA-Region, OSC
TAT Contractor
EPA-OSC
EPA-Kxjion, OSC
Immediate Removal
Response File
Immediate Removal
Response File
Immediate Removal
Response File
Immediate Removal
Response File
0 Immediate Removal
Resp*₯ise { i le
oo
00
-------
-29-
III. Sequence of Events, Including Consistency with NCP (continued)
R. Immediate Removals (continued)
3. Response Implementation (continued)
nociment Ot iginator
EPA Contact
Probable File location
Incident obligation logs
Daily summary of CERCLA
cleanup
POLREPS
Daily work orders
0 EPA O9C/Response Team
TAT Contractor
EPA OSC/Response Team
TAT Contractor
0 EPA-Region, OSC
0 EPA-Region, OSC
0 Tinned late Removal
Response Pile
0 Iiimed I ate Removal
Response Pile
EPA OSC/Response Team EPA-Region, OSC Immediate Removal
0 EPA-Reglon, Response Pile
Project Officer
TAT Contractor
EPA-OSC
0 EPA-Region, OSC Immediate Removal
Ftesponse File
Daily wotk plans
Record of all
communications in
and out of the
command post
All progress '
reports
submitted by
other federal
arjoncies pursuant
to an HDU or IAG
Project Contractor
EPA-Region, OSC
EPA-OSC/Response Team EI'A-Region, OSC
TAT Contractor
Appropriate Federal
agency
EPA-Region, OSC
Immediate Removal
Response File
Immediate Removal
Response File
Immediate Removal
Response File
CO
OJ
IV)
-------
-30-
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removal9 (continued)
Originator
Document
0 Documentation
rogaiding use
of the EPA-EKRU
EPA Form 1900-55,
Contractor Cost
Repot t (Completed
daily)
0 Daily Verification
of woik by OSC
EPA-OSC
0 EPA-EHT
Project Contractor
EPA-OSC
EPA Contact
0 EPA-Region, OSC
EPA-RBgion, OSC
EPA-Rugion, OSC
Probable File location
0 Iirnied t ate Removal
Response File
" Immediate Removal
Response File
Immediate Removal
Response File
Documents regarding
operation and
maintenance of the
site following
the removal
0 Photographs, movies,
or video tape taken
of removal activities
0 Documents relating to
all sampling and analysis
conducted during removal
(See pages 3 and 4 under
"Evidence of a Release
or Tlireat of a Release"
Reponsible party
EPA-OSC/Team
TAT Contrator
State Agency
Other contractor
EPA-OSC/Response Team
TAT Contractor
Project Contractor
EPA-OSC/Response Team
TAT Contractor
Project Contractor
0 State Agency
CPA-Rwjion, OSC
EPA-Region, RSPO
Site
0 EPA-Region, OSC
EPA-Rogion, OSC
0 Immediate Removal
Response File
Immediate Removal
Response File
Immediate Removal
Response File
VD
co
U)
N)
* See Technical Assistance Team (TAT) Contract User's Manual, Draft, USEPA - Emergency Response Division, October 14,
1982. This section applies to both immediate and planned removals.
-------
-31-
III. Sequence of Events, Including Consistency with NCP (continued)
B. Immediate Removals (continued)
4. TAT Contractual Documents Ft>r Removals
Document
TAT Bnergency Response
Removal and Prevent Ion-
Technical Dilection Doc-
ument (TDD) and
modifications
Contractor Work Plans
(for special piojects)
ftiginator
* EPA-Region, Deputy
(DPO)
EPA-IIQ,
TAT-Leader
EPA Contact
tf EPA-Region, DPO
EPA-Region, DPO
PiohabJe File Location
Contracts File
Contracts File
TAT Emergency Response,
Removal and Prevention
TDD Acknowledgement of
Completion
Monthly Status Reports
(tasks and activities
for a TAT)
TAT-Leader
TAT-Leader
EPA-Roglon, DPO
EPA-Region, DPO
Contracts rile
Contracts FHe
Special Ptoject
Reports
i
Overall TAT Contract
Reports if appropriate
to the site (e.g., program
Management Information
Sy.st.c-ms, Financial
Management, Status, or
Sammy progress Reports)
TAT Contractor -
National program Manager
0 TAT Contractor - National
Program Manaoer
EPA-Rogion, DPO
EPA-Region, DPO
Contracts F? !.e
Contracts Ff !e
=«=
00
OJ
10
-------
-32-
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals
1. Response initiation
Document
Originator
EPA Contact
Probable Pile location
0 Record of notification or
discovery
0 Documentation supporting
EPA-OSC request to EPA-
IO-ERO that an imnediate
removal be followed by a
planned removal, including
any statements by experts
0 Record of preliminary
assessments and initial
inspection of site (e.g.,
tieId notes, sampling
data, responsible party
information)
0 State request and cost
share assurances
EPA-OSC
EPA-HO-ERD
(same as page 121, II, bullet II)
0 EPA-IO-ERD
EPA-Region, O6C
EPA-OSC
State-OSC
TAT Contractor
0 Governor, or disignee
EPA-Reg ion, OSC
0 EPA-Regional
.frfcninistrator and
Project Officer
Planned Removal
Response File
Planned Removal
Response Pile
* Planned Removal
Response Pile
Initial POLREP
Draft Action Memorandum,
covet letter and
final action memorandum
with concurrences
EPA-OSC
TAT Contractor
EPA-OSC
EPA-Reglon, Regional
Project Officer
EPA-Region, OSC
R'A-Region, Regional
Project Officer
0 EPA-HP-ERD
°. EPA-»IO-ERD
0 FPA-Nrxjion, Regional
Project Officer
Planned Removal
Response Pile
Planned Removal
Response Pile
o
=«=
CO
CO
-------
-JJ-
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued)
I
2. Contractor Selection
nocunent Originator
EPA Contact
Probable Pile location
14-Point document with
Justification for Non-
competitive Procurement
of Justification for
Limited Competition,
i f appcopt iate
Request for Proposal
(RFP) to contractors
listed in 14 Point
document
Documentation regarding
the bidding and proposal
evaluation process
EPA-OSC
TAT Contractor
EPA- IIQ- Pt ecu r erne nt
and Contracts
Management Division
(PCMD)
EPA-OSC
EPA-HO-POMD
EPA-IIQ-ERO
0 EPA-Region, Regional
Project Officer
EPA-HQ-ERD
0 EPA-Rogion, Regional
Project Officer
ERD
EPA-IIQ-ERD
Planned Removal
Response File
Planned Removal
Response File
Planned Removal
Response File
3. State Involvement
State Super fund Contract
° Notice of Award and
'documentat ion
00 Draft SSC and Comments
00 Final accepted SSC and
concurrences
EPA-HQ-PCMD
EPA-Region-OSC
EPA-HO-ERD (GDT)
EPA-Roglonm RPO
9 EPA-HO-EPD
0 EPA-Region-CSC
EPA-Regipn-ERD
0 Planned Removal
Response File
0 Planned Removal
Response File
Planned Removal
Response File
=**=
vo
CO
00
-------
-34-
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued)
3. State Involvement (continued)
Document Originator
EPA Contact
Ptobable File Location
Communications, memo-
randa and other
documents te levant
to the contract
EPA-IIO-ERD (ROT)
(qpT)
EPA-Rogion-ERD (ROT) planned Removal
EPA-Rfxjion-ERp (GOT) Response File
poctiiuntation of
ceiling tot state
set vices
Daily documentation
of State costs
(daily log and
EPA Form 1900-55
or equivalent)
Request for payment
ot cost share not
met thtough
services
EPA-O8C
State Project
Coordinator
EPA-HQ-FMD
project Offlcei
0 EPA-Region, Regional
Project
EPA-Rogton, Regional
Project Officer
planned Removal
Response Pile
Planned Removal
Response File
Planned Removal
Response File
Documentation of
state payment
EPA-IQ- FMD
State Department
of Treasury
0 WA-Rogion, Regional
Project Officer
Planned Removal
Response File
o
Contract Amendments
EPA-IO-Orants
Administration
State Agency
EPA-Reg Ion, Regional
Project Officet
Planned Removal
Response File
00
U)
M
-------
-35-
III. Sequence of Events, Including Consistency with NCP (continued)
C. Planned Removals (continued)
Document Originator EPA Contact
Probable Pile location
State cooperative
agreement
Application (draft
and accompanying
drjcumentation EPA
Form 5700-33; State
Programatlc Assurances;
EPA Form 5700-48;
Community Relations Plan)
EPA-HO-ERD (GOT)
EPA-IIQ-GAD (OOB)
EPA-Region, Regional
Project Officer
State Project Officer
°* Decision Memorandum
Region and Headquarters
review comments
EPA-Region, Regional
Administrator
EPA-Region, Program
and Enforcement staff
EPA-HQ-ERD (ROT), OWPE,
IISCD, OOC, OFXT, OERR
with final approval by
AA, OSWER.
EPA-Region, Regional
Project Officer
Planned Removal
Response File
EPA-Region, Regional
Project Officer
EPA-Region, Regional
Project Officer
Planned Removal
Response File
Planned Removal
Response File
Grant Funding Order FPA-HQ-ERD (GOT)
Committment Notice
(RPA Form 2550-9)
° Cooperative Agreement
(EPA Form 5700-20A)
EPA-HO-OERR (FMC)
EPA-Roglon, Regional
Project Officer
EPA-IO-GAD (GOB)
EPA-Region, Regional
Project Officer
EPA-Region, Regional
Project Officer
EPA-Region, Regional
Project Officer
Planned Removal
Response File
Planned Removal
Response File
Planned Removal
Response File
vo
oo
OJ
to
-------
-Jb-
III. Sequence of Events, Including Consistency with NTP (continued)
C. Planned fcmovals (continued)
3. State Involvement (continued)
Dociment Or iginator
EPA Contact
Probable File Location
00 Deviation fton 40
CFR 30
° Amendments (EPA Form
5700-20A and /or 20 B)
° State approval of
Cooperative Agreement
(if required)
EPA-HQ-ERD (GOT)
(OOP)
EPA-HO-GAD
0 State entity that must
vote to approve
0 EpA-Region, Regional
project
, Regional
Pioject Officer
Regional
Project Officer
planned Removal
Response Pile
Planned Removal
Response File
Planned Removal
Response File
4. Response Implementation - See pages 28-30 under "Imnedlate Removals".
5. TAT Contractual Documents for Removals - See page 31 under "Immediate Removals".
o
=»=
UD
oo
u>
-------
-37
III. Sequence of Events, Including Consistency with NCP
O. Remedial Actions
1. Remedial Action Planning and Decision Making
Docunent
0 Remedial Action
Master Plan
Documents relating to
the initiation of
RI/FS
0 Documents relating to
the need for Initial
Remedial Measures
0 Docitnents relating to
source control remedial
actions and off-site
remedial actions
Originator
REM/FIT Contractor
EPA-Reglon,
Project Offloat
EPA Regional
Project Officer
EPA Regional
Project Officer
EPA Regional
Project Officer
EPA Contact
EPA-HQ, OERR
EPA-JOr OERR
EPA-IO, OERR
e EPA-IIQ. OERR
Probable File Location
Remedial Planning
File
0 Remedial Planning
File
0 Remedial Planning
File
0 Remedial Planning
File
2. State Involvement
Credit Identification
Letter
0 EPA Inspector General's
Audit Report of
state accounting of
expenditures during
credit period
State Agency
EPA Office of
Inspector General
0 EPA-Region,
Financial Mgt.
Officer
EPA-Region-
RSPO
0 EPA-Region, RSPO
0 Remedial Responset
State Coordination
File
* Remedial Response}
State Coordination
File
=*»=
CO
U)
to
-------
-39-
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
2. State Involvement (continued)
Document
0 Documents Relating bo
KPA Grants Administration
Division review for.
Cooperative
Agreement
Cooperative Agreement
application package
Originator
EPA-HO* Grants Admtn-
stration Division
State Agency
EPA-Region, RSPO
(includes EPA Form 5700-33 EPA-Regional Counsel
EPA-Region, RSPO
0 Cooperative Agreement
Decision Memo
0 Cooperative Agreement
Grant Funding Order (EPA
Form 5700-14
EPA-HO, Hazardous Site
Control Division
EPA-HO, Grants Admin-
istration Division
EPA Contact
0 EPA-Region, RSPO
0 EPA-Region, RSPO
EPA-Region, RSPO
0 EPA-Region, RSPO
Probable File Location
Remedial Responsei
State Coord. File
Remedial Responses
State Coord. File
Remedial Responset
State Coord. File
Remedial Responsei
State Cooed. File
0 Cooperative Agreement
Committment Notice
(EPA Form 2550-9)
EPA-HO* Hazardous Site
Control Division
EPA-HO. Grants Admin-
stration Division
EPA-Region, RSPO
Remedial Responsei
State Coord. File
Cooperative Agreement,
Modifications, and
related documents
(includes EPA Forms
5700-20A and D
EPA Award Official
EPA-Region, RSPO
Remedial Response;
State Coord. File
o
CO
U)
-------
3fl-
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Actions (continued)
2. State Involvement (continued)
Originator
Document
Formal verification of
ctedit notification
Superfund Contracts and
documents supporting
State Assurances
EPA-H0- Hazardous Site
Control Division
EPA-Begion RSPO
State Attorney General
State Agency
EPA-RegIon-Super fund
coordinator and RSPO
Control Division
EPA-UQ-AA for OSWER
EPA Contact
EPA-Region, RSPO
0 EPA-Region, Fin.
Myt. Officer
0 EPA-Region, RSPO
Probable File location
Remedial Response:
State Coordination
Pile
0 Remedial Responset
State Coordination
File
Contract Decision
Memo
Copy of check from
State to EPA and
certified mall
receipt (for
State share
of work done
under Super fund
Contract
EPA-Region, RSPO
0 EPA-Region, RSPO ° Remedial Responsei
State Cootd. File
State Agency ° EPA-Region, Fin. Remedial Response:
EPA-HQ-Financial Manage- Mgt. Officer State Coord. File
msnt Division
Cooperative Agreement
pre-application
notification
package (includes
EPA Form 5700-30
State Agency
EPA-Region, RSPO
EPA-Regional Counsel
EPA-Region, RSPO
0 Remedial Response:
State Cootd. File
=«=
V£>
00
U>
N)
-------
-40-
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
2. State Involvement (continued)
Document
Cooperative Agreement
State Quarterly Progress
Reports, EPA reviews of
the Reports, and related
documents
Documents Supporting
an exjienditure
deviation for
pre-award costs
State/EPA Cortespondence
regarding Contracts/Coop-
etative Agteements
EPA internal crmnants
on draft and final
versions of Contract/
Goo|)erative Agreements
Originator
State
EPA-IO-GAD (GOB)
Appropriate Staff at
EPA Region/IIQ
and State Agency
Appropriate Staff at
EPA Reglon/HQ
EPA Contact
EPA-Region, RSPO
EPA-Ragion, RSPO
EPA-Region, Fin.
Mgt. Officer
EPA-Ragion, RSPO
EPA-Region, RSPO
Probable File location
Remedial Response:
State Coord. File
Remedial Response:
State Coord. File
* Remedial Response:
State Coord. File
Remedial Response:
State Coord. File
0 Surmaries of all
meetings held to
negotiate Contract
/Cooperative Agreement
State legislation
or regulations
authorizing States
to enter into
Contract/Cooperative
Agreement
EPA-Region RSPO
State Statutes/Code
of Regulations
EPA-Region, RSPO Remedial Responsei
State Coord. File
EPA-Region, RSPO
Remedial Response:
State Coord. File
o
=**=
CO
u>
-------
-41-
III. Seqiience of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
2. State Involvement (continued)
Document Originator
EPA Contact
Probable Pile location
State approval (if
necessary by state
law) of Cooperative
Agreement/Contract
State entity granting
approval
EPA-Region, RSPO
Remedial Response!
State Cooed. File
3. Response Implementation (continued)
Investigation reports and
supporting documents
Feasibility Study and
supporting documents
Review of design
plans and
specificationsi
Appropriate Agency/
Contractor
FJPA-OSC/Response Team
State-OKC/Response Iteam
REH/FIT Contractor
EPA-Regional or HQ
Technical Staff
State Agency Technical
Staff
EPA-OSC/Response Team
State-OKC/Response Team
REH/FIT Contractor
EPA-Regional or 11Q
Technical Staff
State Agency Technical
Staff
* Army Corps of Engineers
0 EPA-Reg ion, RSPO Remedial Response:
Remedial Planning
0 EPA-teg ion, RSPO Remedial Responses
State Coord. File
" EPA-R3gion, RSPO
0 Remedial Response:
Remedial Planning
File
00
OJ
-------
III. Sequence of Events, Including Consistency with NCP
D. Remedial Action (continued)
3. Response Implementation (continued)
-42-
(continued)
Document
Lngs, notes, reports,
manifests, work plans,
health and safety
plans and other
documents relating
to construction
activities
Permits and Manifests
(e.g., Dredge and
Fill Material
Discharges-Sec. 404
of CWR; RCRA-SEC.
6925)
Photographs or' video
tape taken of work
in progress
Final EPA-OSC Report
Originator
EPAr-OSC/Response Team
State-OSC/Response Team
Project Contractors
Corps of Engineers
Appropriate Federal or
State Permitting Agency
Corps of Engineers
Project Contractor
EPA-OSC/Response Team
State-OSC/Response Team
REVHT Contractor
Corps of Engineers
EPA-OSC
Cotps of Engineers
EPA Contact
0 EPA-Region, RSPO
0 Cotps of Engineers
Kite Project
Officer
0 EPA-Region, RSPO
0 EPA-Region, RSPO
EPA-Region-OSC
EPA- Reg. -RSPO
Probable File location
Remedial Responses
Remedial Implement.
File
Remedial Responses
Remedial Implement.
File
Remedial Responses
Imagery File or Ran.
Implementation File
Remedial
Remedial
File
Response
Implement.
00
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-43- .
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
3. Response Implementation (continued)
Document
Documentation relating
to all sampling and
analysis conducted
during construction
and with tespect
to post-closure
monitoring (e.g./
sampling and
analysis data
reports from
monitoring wells)
Originator
EPA-OSC/Resp. Tteam
State-OSC/Resp. Team
W>t/FIT Contractor
Project Contractor
EPA Contact
T EPA-Region, RSPO
Probable File location
Remedial Response
Remedial Implement.
File
4. Contractual Documents For Remedial Kbrk
PHI/FIT Zone Contract
Technical Directive
documents/ Work Assignments
EPA Regional REH/FIT
Coordinator-
EPA-Rjgion, RSPO ° Contracts File
=«=
VD
00
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-44-
III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
4. Oonttactual Documents for Remedial Work (continued)
Docitnent
Oz iginator
EPA Contact
Probable Pile location
RF>t/FIT zone Contract
Regional Wbtk Plan
Remedial Planning
and Support Activity
Projection - Work
Assignments
EPA Regional REM/FIT
Coordinator
0 EPA-Regton, RSPO
Contracts File
Zone
FIT Regional Project
0 EPA-Reglon, RSPO
Contracts File
Contract - Technical
Directive
Document (TDD)
Work Assignment Package
Contractor Work Plan
Management Plans (Zone
and Regional)
Progress Reports-Technical/
Financial (Zone and
Regional)
Officer
0 EPA-Roglon, RSPO
State PtoJ. Officer
REH/FIT Contractor
0 RBI/FIT Contractor
Contractor
0 PPA-Rcglon, RSPO
EPA-Region, RSPO
0 RPA-Regional
Coordinator
0 EPA-Regional RFM/FIT
G>rdinator
Contracts File
0 Contracts File
0 Contracts Pile
Contracts Pile
=«=
00
U)
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III. Sequence of Events, Including Consistency with NCP (continued)
D. Remedial Action (continued)
4. Contractual Documents for Remedial Wbrk (continued)
Document
0 Activity Completion
Reports (TOO Acknowl.
and Wbrk Assignment)
Award Fee Performance
Event Reports
List of contact
persons in the
ccmnunity
Ocmnunity Relations
Plan
Press releases or
information released
to the public
Sumnwt ies/transcr Ipta
public meetings
Originator
REH/FIT Contractor
EPA Regional REH/FIT
Coordinator
RE*f FIT Regional Project
Officer
EPA-Regional Staff
Staff of State and
Local Agencies
EPA-Region/HO- Public
Affairs Office
EPA-Region, RSPO
Federal, State or Local
officials
EPA/State Officials
Stenographer
EPA Contact
EPA-Reglonal REH'
FIT Cordinator
0 EPA-Rogional REH'
FIT Cordinator
FPA-Region, RSPO
0 EPA-ltogion, RSPO
EPA-Region, RSPO
EPA-Hegion, Ri>i O
Probable File Location
Contracts File
Contracts File
Remedial Responset
Ccmnunity Relations
File
0 Remedial Responset
Community Relations
File
Remedial Responset
Ccmnunity Relations
File
0 Remedial Responset
Community Relations
File
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-46-
III. Sequence of Events, Including Consistency with NCP (continued)
E. implementation of dost Recovery Plan
Docunent
List of Patties
issued
Demand letter(s)
and dates of issuance
Response to Demand
Letter(3)
Formal cost recovery
referral memos
to EPA-IO-OLEC and
Department of Justice
(if response to
demand letters was
negative)
CorTespondence and notes
from oral ccnmunications
with potential responsible
parties regarding
nerjot iations/settlement
Settlement proposals and
supporting documents
Settlement agreements and
supporting documents**
Originator
EPA-Regional Counsel
EPA-IO-OLfiC antl OWPE
U.S. Department of
Justice
Potential Responsible
Party
EPA-Regional Counsel
Potential Responsible
Party
EPA-Regional Counsel
EPA-HO-OLEC and OWPE
Potential Responsible
Party
* EPA-Regional Counsel
EPA-HQ-OLBC and OWPE
Potential Responsible
Par ty
0 EPA-Regional Counsel
0 EPA-HO-OLBC and OWPE
EPA Contact
EPA-Regional Counsel
EPA-Regional Counsel
EPA-Regional Counsel
EPA-Regional Counsel
EPA-Regional Counsel
Probable File Location
Remedial Response:
Enforcement Fi le
Remedial Response:
Enforcement File
Remedial Response:
enforcement File
' Remedial Response:
Enforcement File
Remedial Response:
Enforcement File
Remedial Response;
Enforcement File
o
CO
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* In cases where partial settlements are reached the parties or only some of the patties settle
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OSWER #9832.1
Appendix D ^
%
The following pages constitute a sample cost recovery plan that nay be
used by the Regions to facilitate the development and gathering of documents,
assess the evidence, issue demand letters and prepare for negotiations and
litigation The use of a cost recovery plan is purely optional. If a Region
chooses to use the cost recovery plan as a management and enforcement tool, it
may use any format it chooses. The plan included in this Appendix is intended
only as a sample.
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COKT RECOVERY PLAN
1. SITE NAME
ADORESS
RflGION
. (State)
11. FUND ACTIVITIES AT SITE
Activity
Date Regirt
(city or tf»wn)
Date Scheduled
Date Oonpleted to Reg in
Dollars Spent
to Rate
I rimed i ate Removal
planned Removal
Remedial Investigation t
Feasibility Stud (ti/fs)
Initial Remedial Measures
Remedial Design
Remedial Cbnstruction
III. FUND FINANCED ACTIVITIES TO BE COVERED BY THIS COST RECOVER* EFFORT
VO
CO
to
M
-------
-2-
rv.
Event
SilWARY OF BACKGROUND EVENTS
Apptopt iate Staff
Met son
Completion
Cote or Status
1. Responsible Patty Seatch and
Assessment of Financial Status
2. Notice letters Issued
3. JO-pt. 01 14-pt. Documents
Ptepated
4. RAMP Ptepated
5. Headquattets Review and Approval
of Cooperative Agteement/Superfund
Contract
vo
CD
K)
-------
-3-
V. DESIGNATION OF STAFF RESPONSIBILITIES AND TARCKT DATES R)R STEPS IN O3ST
RBCOVFRY PROCESS
Step
Assigned
Gcmpletion Date
Ptojected Actual
PHASE I - Initial Steps
1.
2.
Monitor On-Going Fund Activity
Assess Responsible Patty Infotmation:
Identification of Responsible
Patties
Financial Capability Assessment
of Responsible Patties
j
*£>
CD
U)
to
-------
-4-
Step
Assigned
Guipletion Date
Piojected Actual
Review Regional Super fund files and obtain
c
-------
-5-
Assigned To
Ccup let ion Date
Projected Actual
PHASE ill - Demand Letters
1. Draft Demand Lettets
2. Obtain Signature of Di lector, OWPE on
Demand Letteis
PHASE JV - Negotiations
1. Establish Negotiation Team and Select
*feam Leader and Lead Negotiator
2. Assess Evidence and Stienyth of Case.
Identify and Attempt to Hectify Data Gaps.
3. Search for and Select Experts, as
Appiopt iate.
4. Develop Negotiation Schedule
5. Qjoidinate with State and Local Officials
6. Pie|»ate Infotmation Package for Respon-
sible Patties.
*
=«=
00
u>
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-6-
Assigned 'ftt
Completion Date
Pi ojected Actua1
I'llASK V - Litigation
1. Piepaie Case Ref fetal Memo and Litigation
l*Ji*Jlt fOl DOJ
2. Assess Evidence to Suppoit the Following:
Release OccuiLiKJ
Patty was Responsible
Response was Consistent with NCP
latxjlation of Co-'.ts and Suppoit
IXfCunentation
3. Ptepate (UieCings foi tleadquatteis ainl 1XXI
4. Ptovide Legal Suppoit to DQJ IXit ing 'Ilial
J'lepatation
5. Piovide Technical Suppoit to D£J Out ing
Ti ial Fiepaiation
o
=»=
>x>
oo
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-7-
VI - Miscellaneous Issues Associated with the Site
It is recognized that them may lie special technical, legal and policy issues
for a site which need to be addressed. Seine examples ate: handling laige
multi-generator cases; piercing coij>oiate veils; policies and piocediues legatding
(ttfc'ial facility involvements; and State exists and consistency with the NCF.
Iticse issues should be listed in this section of the plan and a staff member and
due date for a response, to the issue should be assigned.
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OSWER # 9832.1
Appendix E
It is suggested that central files be set up in each Region to facilitate
the cost recovery data gathering effort. Each Region must of course decide for
itself whether a central filing system would be beneficial and whether it is
logistically feasible. Appendix E contains a sample file structure that the
Regions might consider if central files are to be set up.
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OSWER # 9832.1
APPENDIX E
. PROPOSED FILE STRUCTURE
To adequately document activities taken at a Superfund
site, an organized filing system is essential. A well defined
and maintained filing system will minimize .duplication of files
as well as the time and effort required to locate documents,
facilitate the transition to the negotiation or litigation
phases of the cost recovery process, and allow Agency staff to
obtain status information about a site for management purposes.
The details regarding such a filing system are discussed in
a guidance paper entitled, "Regional Paper File Structure,"
Final Draft, U.S. EPA, Office of Emergency and Remedial
Response, Office of Policy and Program Management (OPPM),
December 1, 1982. The file structure which is presented in
Exhibit £-1 is based on the one outlined in that guidance paper.
As appropriate, subsets of the files lisfed in Exhibit B-l
or additional files could be established fo.r those sites which
have extensive documentation requirements. It is important to
note that the "Enforcement* file is defined narrowly (see
description below; for purposes of this filing system. A
filing system organized for an enforcement action would
necessitate the use of information contained in many different
files.
. EXHIBIT T-l
.FILE STRUCTURE FOR SUPERFUND SITES
Site Overview
Congressional Inquiries/Hearings
Remedial Response
Discovery/Hazard Ranking
Remedial Planning
Remedial Implementation
State and Other Agency Coordination
Community Relations
Removal Response
Imagery
Enforcement
Contracts
Financial Transactions
Exhibit C-l specifically suggests a file location for each
document listed. Generally however, the files listed in
Exhibit E-l should include the following types of information:
-------
Site Overview -'Includes site summary, chronological list
of events and dates/ and selected computer system reports.
Congressional Inquiries/Hearinos - Includes correspondence,
documents released in response to Congressional requests,
testimony presented at hearings, hearing transcripts,
Congressional committee reports and surveys regarding the
site.
Remedial Response
Discovery/Hazard Ranking - Includes all documents
relating to the initial discovery or notification of a
site, documents regarding the preliminary assessment
of the site (e.g., information about site operation,
site investigations, sampling and analysis,
hydrogeology and biological inventory of surrounding
area), and hazard ranking forms.
Remedial Planning - Includes documents relating to
preparation of the RAMP, action memo', any remedial
investigation reports, feasibility studies, plans and
specifications, and design reports.
Remedial Implementation - Includes all permits, sampling
and data analysis, daily logs recorded at the
site, OSC reports, health and safety plan, documents
regarding monitoring or maintenance activities.
St-'te and Other Agency Coordination - Includes all
In-er-Agency Agreements, Memoranda of Understanding,
and all documents relating to the negotiation of a
Cooperative Agreement.
Community Relations - Includes all communications with
cc --nunity organizations or individuals, minutes or
transcripts of publi-c meetings, documents relating to
the Community Relations Plan, documents relating to
the health and safety plan, public comments on EPA
proposals and responses, press releases, and newspaper'
articles and TV transcripts.
Removal Response* - Includes all documents relating to
response initiation, development of scope of work, and
response implementation for immediate and planned removals.
This file may not be located in the central file as the OSC
may need to retain all of the documents prepared in
connection with the removal. If possible, an index of the
documents contained in the removal file should be included
in the central file and the name and phone number of the
OSC or other responsible persons should be noted.
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OSWER # 9832.1
-3-
Imaeery - Includes all current and historical photographs,
infra-red, thermal or other remote sensing of the site, and
any photographs or video tapes taxen during a response
action.
Enforcement* - Includes information directly related to the
enforcement aspects of response actions taken at a site.
It includes data on prior legal actions (Federal, State and
Local;, information relating to potential responsible
parties sucn as manifests, notice letters and responses,
negotiation documents, and demand letters and responses.
As noted above, additional information necessary to support
a cost recovery action will be included in other files.
Contracts - Includes all documents relating to the
development of the scope of work, request for proposals,
review of bids, contractor worfc plans and reports, SPA
re7iews of contractor performance, and all summary reports
regarding the TAT or ASM/FIT Contracts.
Financial Transactions** - Includes all documents relating
to allocation and commitment of Superfund monies (e.g.,
Action Memc;, planned cost documents (e.g., RArtP
projections), estimated cost documents, obligation
documents (e.g., OSC obligation log), OSC-certified
invoices submitted by contractors, records of payment by
£?A, all internal (SPA;, external (Treasury or OM3J and
trust fund reports relating to the site, State
letter-of-credit drawdown vouchers, State Quarterly
Reports, and other federal agency reports.
*
This file or portions of this file may be located in the
Regional Counsel's office due to the confidential nature of
the material.
* See Regional Financial Procedures Manual, Draft, U.S. EPA,
August 29, 1962 for additional information regarding the
site financial file.
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(N
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I. Evidence of a Release or the Threat of a Release (continued)
Document
Originator
EPA Contact
Probable File Location
0 Routine sampling and
analysis data (e.g.
l*»r formed to analyze
wastes, to assure
statutory compliance
such as NPUKS permit).
Data should include
all field notes,-
chain of custody
documents, laboratory
procedures/protocols,
taw data and summaries
of or interpretative
reports about the
taw data.
Dnomentat ion of
potential health
or environmental
effects resulting
from telease (e.g.,
interviews, physicians'
statements
Biological Inventory
of the Affected atea
Owner A*- »ator of
the f ;ty
Gener.
Transporter
0 Contract Laboratory
0 Public
physicians
Local Health
Officials
0 Local Environmental
Officials
EPA-OSC/Response
Team
State-OSC/Response
Team
REH/FIT Contractor
EPA-Region, Approp.
En f./Coup 11 ance
Section
State Enf./ ,
Compliance Atjency
EPA-Rt?gion, Waste
Myt. Div. Project
Manager
0 State Agency
0 EPA-Region, Waste
Myt. Div. or Env.
Services Div.
Project Manager
State Agency
0 Remedial Response:
Di scoveiy/llazatd
Ranking File
Remedial Response:
Dlscovety/Hazarx)
Ranking File
0 Remedial Responses
Discovery/Hazard
Ranking File
oo
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-9-
I. Evidence of a Release 6t the Threat of a Release (continued)
Document
Liteiatute seatches
and pet iodicals
regarding
the toxicology
and chemical
properties
of the
hazardous
substances
(e.g., Toxicology
Data Dank (TDB)
or Chemical
Information
System (CIS)
List of hazardous
substances (e.g.,
CERCLA Sec. 102, CW*
Sec. 311, RCRA Sec.
3001, CW Sec. 307,
CAA Sec. 112, TSCA
Sec. 7)
Hazard Ranking
Form and
supporting
documents
public cxmnents
or record of
public heat ing
regarding
Hazard Ranking
Originator
EPA-Research
Labs
NEIC
NIH/CDC
EPA-IKJ Library
State Agencies
or Libraries
Universities
Research
or Consulting
Firms
EPA Contact
EPA-HQ, owi'E
or OEKR
State Agency
Probable Pile Location
EPA-HO-Management
Information and Data
Systems Division
May 25, 1983
ot 40 CFR 302.
0 FTTA-HQ-Eroeigency
Response Division
* EPA-HQ-Docket 102 RQ.
EPA-Region, Regional
Site Project Officer
EPA-Region, Waste
Management Division
Project Manager
Public
EPA-Region, RSPO
0 EPA-HQ-OERR
0 EPA-Region, RSPO
0 Remedial Response:
Di scovety/Hazatd
Ranking File
0 Remedial Responsei
Discovery/Hazard
o
CO
s:
VO
C»
CO
Ranking File
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