£EPA
           United States
           Environmental Protection
           Agency
           Office of Emergency and
           Remedial Response
           Washington. DC 20460
Publication 9360.3-06
PB92-963409
April 1992
           Superfund
Superfund Removal
Procedures - Removal
Enforcement
Guidance for On-Scene
Coordinators

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                               Publication 9360.3-06
                                    April 1992
SUPERFUND REMOVAL PROCEDURES

REMOVAL ENFORCEMENT GUIDANCE
   FOR ON-SCENE COORDINATORS
     Office of Emergency and Remedial Response
       U.S. Environmental Protection Agency
           Washington, DC 20460

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                                       NOTICE
The procedures set out in this document are intended solely for the guidance of Government person-
nel. They are not intended, nor can they be relied upon to create any rights enforceable by any party
in litigation with the United States. EPA officials may decide to follow the guidance provided in this
document, or to act at variance with the guidance, based on an analysis of site circumstances.  The
Agency also reserves the right to change this guidance at  any time without public notice.

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This document is part of a ten-volume series of guidance documents collectively titled the Superfund
Removal Procedures. These stand-alone volumes update and replace OSWER Directive 9360.0-3B,
the single-volume Superfund Removal Procedures manual, issued in February 1988.

Each volume in the series is dedicated to a particular aspect of the removal process and includes a
volume-specific Table of Contents, Reference List, and Key Words Index. The series comprises the
following nine procedural volumes:

       The Removal Response Decision: Site Discovery to Response Decision

       Action Memorandum Guidance

       Response Management:  Removal Start-up to Close-out

       Removal Enforcement Guidance for On-Scene Coordinators

       Public Participation Guidance for On-Scene Coordinators: Community Relations
       and the Administrative Record

       Removal Response Reporting: POLREPs and OSC Reports

       Special Circumstances

       Guidance on the Consideration of ARARs During Removal Actions

       State Participation.

In addition, the series includes an Overview volume, containing a comprehensive Table of Contents,
List of Exhibits, Key Words Index, List of Acronyms, and Glossary, for use as a quick reference.

This document summarizes the relevant guidance and statutory authorities for conducting enforce-
ment activities during removal actions. "Appendix A.  References" provides a comprehensive list
of supporting guidance documents that may be consulted for additional information on relevant
topics. Bracketed numbers [#] appear throughout the text to indicate specific references in Appendix
A which lists additional guidance on particular topics. Consult the reference documents for a more
detailed explanation of removal or enforcement policies and procedures. In addition, appropriate
sections of statutes  and regulations are also cited throughout the text, with a full citation of each
statute and regulation appearing in Appendix A. Appendix B contains the Key Words Index.
                                          m

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The  Comprehensive Environmental Response,  Compensation, and Liability Act
(CERCLA) gives the President authority to negotiate settlements, issue orders to persons
including Potentially Responsible Parties (PRPs), or sue PRPs to repay cleanup costs when
the Trust Fund established under CERCLA has been used to finance removal or remedial
actions.  The President has delegated this authority in large part to the  Environmental
Protection Agency (EPA). The steps EPA takes to reach settlement or compel responsible
parties to perform cleanups or pay for them are parts of the Superfund enforcement process.
On-Scene Coordinators (OSCs) conduct or contribute to many steps in removal enforce-
ment.
              ENFORCEMENT
  Enforcement implements the Congressional intent of CERCLA: "The Polluter Pays."
                                      IV

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                              CONTENTS
Introduction	1
      Overview	1
      Enforcement Authorities	2

Enforcement Roles and Resources	7
      OSCs	7
      Regional Technical Enforcement Staff and Program Management	9
      Office of Regional Counsel	9
      Public Participation Staff	9
      Contract Resources	10
      Criminal Investigations	10

Removal Enforcement Procedures	11
      PRP Searches	11
      PRP Notification	15
      State Notification	16
      Negotiations, Settlements, and Orders	16
      Oversight of Enforcement-Lead Removal Actions	18
      Documentation	18
      Public Participation	24

Cost Recovery	27

Appendix A. References	29

Appendix B. Key Words Index	31

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                                EXHIBITS
Exhibit
Number
  1   Overview of Removal Enforcement Activities and
      Their Relationship to Removal Actions	3

  2   Enforcement Roles and Responsibilities	8

  3   Enforcement Checklist	12

  4   PRP Search Activities	13

  5   Checklist of Criteria to Issue UAO	17

  6   Cost Recovery Process	27
                                      VI

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                                  INTRODUCTION
Overview
       One of the primary objectives of CERCLA and EPA policy with regard to enforcement is that
       parties causing or contributing to a release of hazardous substances should take responsibility
       for cleanup. Broadly speaking, under CERCLA section 107, potentially responsible parties
       (PRPs) comprise:

             •      Certain past and present owners and/or operators of a facility where there is
                    or has been a release or threatened release of hazardous substances

             •      Persons who arranged for disposal or treatment of hazardous substances at a
                    facility from which there is a release or threat of a release

             •      Persons who accept or accepted  hazardous  substances for  transport to
                    disposal or treatment facilities and selected the site from which there is an
                    actual or threatened release.

       OSCs and Regional technical enforcement staff! routinely join forces to identify and compel
       PRPs to perform removal actions or pay for a government cleanup. The goal of this guidance
       is to describe the roles and responsibilities for conducting enforcement and to describe the
       procedures to take during enforcement actions. Further information on removal enforcement
       procedures may be found in the Enforcement Project Management Handbook [16].

       EPA philosophy increasingly emphasizes enforcement in an effort to use limited program
       resources effectively to ensure  that the responsible  party conducts or  funds response
       activities. Most recently, the Management Review of the Superfund Program (the "90-Day
       Study") and its subsequent implementation plan articulated a clear and straightforward
       direction for the Superfund program. A key element of this strategy is the "enforcement-first"
       approach. The goal of this approach is to compel PRPs to conduct response actions and
       cleanups in lieu of government-financed response actions. This approach mobilizes private
       party resources to conduct cleanup from the start, rather than using the Fund and recovering
       costs through litigation later. As one method of obtaining more PRP cleanups, EPA wiU
       increase the use of enforcement and settlement authorities.

       Although "enforcement first" is an underlying principal of the removal process, the urgent
       nature of certain removal actions may require response initiation by the Agency before
   1   For consistency, this guidance refers to Regional technical enforcement staff; individual Regions, however,
      may use other Region-specific terms.

                                          1

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ENFORCEMENT AUTHORITIES
       undertaking extensive enforcement activities. For example, prior to the initiation of cleanup,
       emergencies typically allow time for only limited enforcement action, such as an oral demand
       for cleanup. In these circumstances, the National Oil and Hazardous Substances Pollution
       Contingency Plan (NCP) gives the OSC authority to balance enforcement priorities with
       those of environmental protection, allowing the OSC to choose the latter as a means of
       achieving EPA's primary goal of protecting public health and the environment.

       Generally, a complete PRP search and subsequent enforcement activities are conducted at
       sites, even if a Fund-financed removal action must commence prior to PRP identification and
       notification. Time-critical removal actions, where up to six months can elapse before the
       initiation of on-site activities, or non-time-critical removal actions, which permit a planning
       period of more than six months, offer time for more thorough enforcement efforts prior to the
       start of on-site activity [16].

       Beyond the immediacy of the need to respond to a release, OSCs, in close coordination with
       the Office of Regional Counsel (ORC), need to evaluate the following factors in determining
       how vigorously to pursue enforcement to compel performance by PRPs:

             •      Evidence indicates that PRPs are liable and that they have  the financial
                    capability to conduct the removal action.

             •      The OSC can define the removal action with enough specificity — such as by
                    treatment technology, or defining the goals or specifying activities required
                    by the action - so as to instruct PRPs as to what is expected.

             •      The PRPs command the technical competence to respond or have the
                    resources to hire a contractor who does.

       The OSC should re-evaluate the above criteria throughout the removal action, in the event
       that enforcement circumstances change. Exhibit 1 presents an overview of the removal
       enforcement process from start to finish and outlines the OSC's role in this process.

Enforcement Authorities

       Generally speaking, EPA has been delegated the authority under CERCLA section 104(a) to
       remove or arrange for the removal of any hazardous substance, pollutant, or contaminant if
       it is deemed necessary to protect the public health or welfare or the environment. Fund-lead
      removal actions are limited by section 104(c) to actions not exceeding either $2 million in cost
      or 12 months in duration, unless an exemption to these limits has been granted. Section
       104(b) of CERCLA authorizes studies and investigations to determine the existence, source,
      and extent of the release or threatened release, while section 104(e) provides a means of
      gathering information on PRP liability, site history, and the identity of additional PRPs.

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                                                          ENFORCEMENT AUTHORITIES
EXHIBIT 1 .  OVERVIEW OF REMOVAL ENFORCEMENT ACTIVITIES AND
               THEIR RELATIONSHIP TO REMOVAL ACTIONS*
                                           Site Discovery
                                             I
                                     Assess Removal Action Options/
                                       Preliminary PRP Search
                                             ±
                                         Begin Administrative
                                            Record Rle
                                             i
                                         Oral/Written General
                                       Notification of Known PRPs
                                             I
                                       Follow up on Early Search
                                         Activities and Notice
                                      Develop Action Memorandum
                                      with Enforcement Addendum
                                     Yes
                                           /Viable\
                                                          No
                             Notify the Stale
                           Issue Notice (Possibly
                             with Draft AOC)



y



1
\PRPs/
Non-Compliance __
J
\

Obtain Approval for
Use of Fund
                                                                   I
                                                                Initiate Fund-
                                                            Financed Removal Action
                         Make Administrative Record
                            Available to Public/
                          Public Comment Period
       I
Make Administrative Record
   Available to Public/
 Public Comment Period
                           Written Response to
                           Significant Comments
       i
                                                              Written Response to
                                                             Significant Comments
                                                               Review Potential
                                                               for Cost Recovery
  * This general overview of removal enforcement may not apply in all situations, especially emergencies.

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ENFORCEMENT AUTHORITIES
      CERCLA section 122 authorizes EPA to negotiate a settlement with PRPs through an Admin-
      istrative Order on Consent (AOC) under section 106.  Section 106 also authorizes EPA to
      compel PRP response through issuance of a Unilateral Administrative Order (UAO), and to
      enforce the terms of an Administrative Order and compel non-complying PRPs or non-PRPs
      (e.g., adjacent landowners) to respond through judicial action [9,15]. Administrative Orders
      describe actions to be taken at a site and should be placed in the administrative record file.
      Administrative Order on Consent - A legally enforceable agreement signed by EPA and
      PRPs whereby PRPs agree to perform or pay the cost of site cleanup, and may forfeit the
      right to make a claim against the Fund. AOCs do not have to be approved by a judge, but
      are enforceable in court.

      Unilateral Administrative Order - A legally enforceable order issued by EPA to compel
      PRPs to perform a response action. It is EPA policy to proceed with a UAO if PRPs fail
      to respond appropriately to the notification and negotiation process, provided that neces-
      sary criteria are met [15].
      Section 107 of CERCLA outlines the basic liability provisions of the statute. It imposes strict
      liability upon the classes of PRPs identified on page 1, and it has been interpreted by the
      courts to impose joint and several liability upon all PRPs involved at a site where harm is not
      divisible.  CERCLA section 107 also authorizes EPA to seek reimbursement from PRPs
      for all response costs incurred by the Agency not inconsistent with the NCP, including interest
      [6, 8]. Additionally, section 107 authorizes EPA to seek treble damages as a result of PRPs
      failing without sufficient cause to comply with a CERCLA section 106 order.
      Strict Liability - A "no fault" standard of liability, as opposed to a lesser standard of
      negligence. PRPs are liable even if the problems caused by the release were unforeseeable,
      the PRPs acted in good faith, or state-of-the-art waste management practices were in use
      at the time of disposal. Only limited defenses are available under section 107(b).

      Joint and Several Liability - In situations where more than one PRP is involved, it may
      be difficult to determine each PRP's contribution to the release, i.e., the harm is "indivis-
      ible." The doctrine of joint and several liability allows EPA to sue one or more PRPs, or
      all of them together. If the suit is successful, each PRP is liable for the entire conduct or
      cost of site cleanup; each PRP bears the burden of seeking reimbursement from other PRPs,
      if appropriate.

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                                               ENFORCEMENT AUTHORITIES
Treble damages - CERCLA section 107(c)(3) authorizes EPA to obtain punitive damages
of three times the amount of any  costs incurred by  the Fund as a result of PRPs
failing without sufficient cause to take proper action under a CERCLA section 106 order.
Treble damages can be sought in cost recovery cases where an administrative order has been
issued previously.
CERCLA section 122(a) authorizes EPA to enter into agreements with PRPs to perform
response actions. Section 122(e) provides special notice procedures, including a 60-120 day
moratorium on EPAaction to facilitate negotiations, which can be used to negotiate non-time-
critical removal actions.

The NCP sets out, among other things, a division of responsibility among the various levels
of government, the appropriate role of private parties, and procedures for undertaking re-
sponse actions. Section 300.160 of the NCP also provides requirements for response action
documentation to support enforcement and cost recovery actions.  The NCP applies to all
response actions taken pursuant to the authorities of CERCLA or the Clean Water Act (CWA)
as amended by the Oil Pollution Act of 1990 section 311, and is applicable to releases or
threatened releases of hazardous substances into the environment, releases or threatened
releases of pollutants or contaminants that may present an imminent and substantial danger
to public health or welfare, and releases or threatened releases of oil onto the navigable waters
of the U.S. or its adjoining shorelines.

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         ENFORCEMENT ROLES AND RESOURCES



Roles and resources for conducting enforcement activities vary from Region to Region. Two
basic structures, however, currently predominate in Regional enforcement organizations:

      •     A section of OSCs conducts Fund-financed removal actions, but not enforcement
            work. A separate section of enforcement project managers conducts both removal
            and remedial enforcement work.

      •     OSCs conduct both removal and enforcement work, with other Regional staff
            providing concurrence on enforcement-related decisions.

Whatever the Regional enforcement structure, close coordination between the OSC, ORC, and
other enforcement staff is a critical component of every removal action to ensure appropri-
ate use of resources in identifying and compelling PRPs to respond. Exhibit 2 presents a sum-
mary of the roles and responsibilities of OSCs and other Regional staff available to support
OSCs [16].
OSCs
      The OSC's role in enforcement activities during removal actions can be broadly defined as
      follows:

             •      Initiating and supporting PRP search, notification, and negotiation activities

             •      Providing a work plan or a scope of work for Administrative Orders detailing
                   the proposed response

             •      Documenting or assembling documentation on all aspects of the removal
                   action including decision and cost recovery documentation, and establishing
                   the site file and administrative record file, within the time required by the NCP

             •      Approving the release of information regarding EPA and PRP negotiations

             •      Overseeing the PRP response

             •      Assuring PRP compliance with an AO.

      The participation of OSCs is vital to all phases of the enforcement process, although the
      extent of OSC involvement may vary.

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ROLES AND RESOURCES
             EXHIBIT 2.   ENFORCEMENT ROLES AND RESPONSIBILITIES [16]
   ON-SCENE
   COORDINATOR *
• Initiates and supports PRP search, notification, and
  negotiation activities

• Provides a scope of work for Administrative Orders

. Drafts Administrative Order

• Documents and assembles documentation on all
  aspects of the removal action including decision and
  cost recovery documentation

• Reviews and approves PRP plans/proposal for
  cleanup and oversees PRP response
   REGIONAL TECHNICAL
   ENFORCEMENT STAFF
  Supports enforcement activity
   REGIONAL COUNSEL
• Supports PRP search

* Reviews or assists drafting of orders and participates in
  negotiations and settlements

• Reviews site documents
   PUBLIC PARTICIPATION
   STAFF
  Coordinates and monitors contractor support for
  community relations aspects of enforcement-lead
  removal action (e.g., public meetings)

  Assists with preparation of Community Relations
  Plan

  Organizes site file and administrative record file

  Develops press releases

  Provides agency spokesperson
  REGIONAL
  ADMINISTRATOR or
  APPROPRIATE DESIGNEE
 Issues Administrative Orders

 Approves Action Memorandum
  CONTRACTOR SUPPORT
 Provides technical support for all aspects of
 enforcement activities
       *  These activities may be conducted by a Remedial Project Manager when a removal action is performed at
       a site where remedial activity has been initiated.


       ** Regional technical enforcement staff are generally organized into separate units specializing in certain
       enforcement tasks or in a comprehensive section that manages all enforcement activities.
                                            8

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                                                          ROLES AND RESOURCES
Regional Technical Enforcement Staff

       All Regions have enforcement staff to undertake or assist with enforcement activities.
       Regional technical enforcement staff consist of personnel with scientific, accounting, docu-
       ment management, and legal expertise who work with OSCs to ensure that enforcement
       responses meet  both program objectives and legal requirements.  Regional technical
       enforcement staff are generally organized in one of two ways:

             •      As a comprehensive enforcement section that manages all enforcement
                    activities for both the removal and remedial programs

             •      As separate enforcement units specializing in certain tasks such as PRP
                    searches, civil investigations, and cost documentation. For example, some
                    Regions have PRP search units with civil investigators available to assist in
                    PRP searches and criminal investigations.

       Enforcement staff and the OSC need to coordinate closely to ensure that enforcement issues
       have been thoroughly investigated, documented, and resolved.

Office of Regional  Counsel

       ORC is composed of attorneys for each Region who provide counsel and litigation support
       for both the removal and remedial programs. ORC attorneys are involved particularly in
       negotiations and settlements, drafting administrative orders, and reviewing site documents
       for sufficiency of enforcement information.

       OSCs should involve ORC in removal enforcement as soon as possible. This involvement
       is important because the ORC can assist in developing enforceable Administrative Orders
       and EPA's cost-recovery case.  ORC also may be able to assist in the identification of PRPs
       and facilitate the removal enforcement process.  If a removal action is to be conducted at a
       site with a remedial action already underway,  the OSC should  consult the ORC before
       beginning a PRP search in order to avoid duplication of effort.

Public Participation Staff

       Among the Regional personnel available to assist OSCs with the enforcement aspects of
       public participation planning  and  implementation are the Community Relations Coor-
       dinator, the Administrative Record Coordinator, and Regional Public Affairs staff.  The
       Community Relations Coordinator serves as the OSC's primary resource for coordinating
       and monitoring contractor support for the community relations aspects of an enforcement-
       lead removal action, and may direct the preparation of community relations plans, assist with

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ROLES AND RESOURCES
       community interviews, and maintain the information repository [14]. The Administrative
       Record Coordinator organizes information for the administrative record and may provide or
       identify materials from which to compile the administrative record and the information
       repository [10].  Public Affairs personnel provide support for the OSC in media-related
       activities such as developing press releases or acting as an Agency spokesperson.

 Contract Resources

       Contractor support is available to the OSC or Regional technical enforcement staff to assist
       in PRP searches, and the issuance and compilation of enforcement documentation:

              •      The Technical Enforcement Support (TES) contracts provide technical assis-
                    tance to EPA Headquarters and Regional offices in the enforcement of CERCLA
                    for all enforcement-related activities, except PRP oversight.

             •      Technical Assistance Team (TAT) contracts provide initial PRP search work,
                    tide searches, and monitoring of PRP-conducted on-site investigations.

             •      The Alternative Remedial Contracting Strategy (ARCS)  contracts provide
                    technical assistance to Regional offices for all enforcement oversight activi-
                    ties.

       These contractors ensure smooth operation of enforcement activities through coordination
       with Federal, State, and local authorities.

Criminal Investigations

       OSCs or other enforcement personnel must notify the appropriate Regional Office of
       Criminal Investigations or the National Enforcement Investigations Center (NEIC) immedi-
       ately when they suspect criminal activity [2]. The NEIC may initiate a criminal investigation,
       working with the OSC and ORC.
                                         10

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         REMOVAL ENFORCEMENT PROCEDURES
Enforcement activities described in this section include:

      •     PRP searches

      •     PRP notification and information exchange

      •     State notification

      •     Negotiations, settlements, and orders

      •     Oversight of enforcement-lead removal actions

      •     Documentation

      •     Public participation.

Exhibit 3 provides a checklist to assist OSCs and other Regional enforcement staff, such as civil
investigators and cost recovery staff, in ensuring that all appropriate enforcement activities have been
addressed at each removal site [16]. Cost recovery efforts are discussed in the following section (see
p. 26).

PRP Searches

      Agency policy requires that known, viable PRPs conduct removal actions wherever possible
      [16,17]. PRP searches should begin as soon as a removal action appears likely. ORC should
      be consulted before a removal action is commenced or PRP search work is undertaken
      because ORC may have valuable information concerning the PRP's identity. The urgent
      nature of emergency and time-critical removal actions, however, often necessitates initiation
      of a Fund-financed response prior to an extensive PRP search.  Even if a Fund-financed
      removal action must begin before PRP identification and notification, a complete PRP search
      shouldbe conducted at sites. Complete and accurate PRP searches support later negotiations,
      settlements, and cost recovery.

      PRP searches vary in size and scope depending on the amount of time between discovery and
      execution of the Action Memo, the urgency of the  situation, and the amount to be spent for
      the removal action. Exhibit 4 summarizes PRP search activities for emergency, time-critical,
      and non-time-critical removal actions. Regardless of the urgency of the situation, efforts to

                                       11

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ENFORCEMENT PROCEDURES
       EXHIBIT 3.  ENFORCEMENT CHECKLIST [16,17]
      The following checklist has been developed to assist OSCs in conducting and coordinating enforcement
      procedures between other enforcement personnel and contract support. OSCs should determine that the
      following activities are conducted at all removal sites when appropriate:

      PRP Search, Identification, and Notification
      	  Document or photograph visual evidence linking PRPs to a site, including drum labels, shipping
           records, and vehicle registration
      	  Conduct oral inquiries with PRPs and other observers (e.g., public officials, reporters) at the site
      	  Notify NEIC if criminal activity is suspected
      	  Issue CERCLA section 104(e) information requests*
      	  Prepare a baseline PRP search report
      	  Initiate a title search*
      	  Conduct off-site interviews*
      	  Review relevant site records*
      	  Prepare interim final PRP search report*
      	  Notify PRPs orally of potential CERCLA liability (with written confirmation)
      	  Notify PRPs in writing of liability*
      	  Issue special notice letters*

      Preparation for Negotiation
      	  Establish the administrative record
      	  Notify State prior to negotiations or issuance of an Administrative Order
      	  Prepare negotiation strategy*
      	  Draft Action Memo with enforcement addendum
      	  Prepare draft Administrative Order on Consent (AOC)
      	  Negotiate AOC or issue Unilateral Administrative Order (UAO)

      Removal Action
      	  Track daily costs and project future costs for Fund-lead removal actions
      	  Make the administrative record publicly available within sixty days after the initiation of on-site
           activities (emergencies and time-critical actions) or when the Engineering Evaluation/Cost
           Analysis (EE/CA) is made available for public comment (non-time-critical actions)
     	  Attend or coordinate oversight meetings including initial, status, and completion meetings, as
           well as site inspections
     	  Oversee PRP compliance with the orders

     Cost Recovery
     	   Issue demand for payment of past and future costs plus interest
     	   Document decision not to pursue cost recovery (if applicable)
     	   Refer cost recovery cases to Department of Justice within twelve months of completing the
           removal action
     	   Complete Interim Final PRP Search Report
     * This activity should be conducted if time permits.      	

                                                12

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       ENFORCEMENT PROCEDURES
EXHIBIT 4. PRP SEARCH ACTIVITIES* [1 6]







(0
0)
*••
[>
^5
o
<



Follow-up search
conducted later.


Preliminary search:
• Gather visual evidence
from site
• Conduct on-site
interviews
• Consult municipal
officials
• Review readily
available site records
Emergency








• Use TAT for preliminary
activities
• Issue CERCLA section
104(e) information
requests
• Document additional
evidence linking PRP to
site (e.g., photos)
• Conduct a title search
(coordinate with civil
investigator)
• Conduct off-site
interviews
• Review relevant site
records
• Gather visual evidence
from site
• Conduct on-site
interviews
• Consult municipal
officials
• Review readily available
site records
Time-Critical











• Prepare interim final
PRP search report
• Issue CERCLA section
104(e) information
requests regarding
generators and
transporters
• Prepare baseline PRP
search report
• Document additional
evidence linking PRP to
site (e.g., photos)
• Conduct a title search
(coordinate with civil
investigator)
• Conduct off-site
interviews
• Review relevant site
records
• Gather visual evidence
from site
• Conduct on-site
interviews
• Consult municipal
officials
• Review readily available
site records
Non-Time-Critical











Urgency of the Situation

*NOTE: Example for descriptive purposes only; some steps may follow removal actions.


13

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ENFORCEMENT PROCEDURES
       locate PRPs should continue throughout the removal action to support cost recovery and the
       possibility of PRP involvement in any continuing or future response actions.

       Emergency Actions

       In emergency situations, where the release or threatened release requires that on-site clean-
       up activities begin within hours of the lead agency's determination to conduct a removal
       action, and immediate protection of public health, welfare, and the environment is the first
       priority, OSCs follow streamlined PRP search procedures. For example, in certain emer-
       gency situations such as train or truck wrecks, the PRPs are readily identifiable and are willing
       to handle the response. In these cases, a PRP search may not need to be conducted. In other
       emergency situations, the OSC may need to take expeditious actions to abate the immediate
       threat before conducting a PRP search. However, in many emergency situations, a prelimi-
       nary PRP search can be completed before taking actions to abate the immediate threat. A
       preliminary PRP search under emergency conditions should include making oral inquiries,
       reviewing site records, and searching for visual evidence to link PRPs to a site. Oral inquiries
       may include conversations with municipal officials, site owners and operators, and site
       personnel. A file examination consists of a review of on-site records pertinent to PRP
       identification, including bills of lading and other readily available owner/operator docu-
       ments. Visual documentation includes drum labels and other obvious evidence to link PRPs
       to a site. OSCs should work with enforcement personnel to collect and document potential
       evidence.

       Time-Critical Actions

       In time-critical  situations, where a period of up  to six months is available before cleanup
       activities must begin, OSCs can expand upon the preliminary PRP search activities discussed
       above for emergency  situations. Enforcement staff initiate title searches, off-site inter-
       views, and CERCLA section 104(e) information requests to obtain information on the site's
       history, identification of additional PRPs, and financial information used for determining
       whether or not to issue an Administrative Order  [11].

       Non-Time-Critical Actions

       In non-time-critical situations, where a period of six months or more is available before clean-
       up activities  must begin, OSCs and Regional  enforcement staff can conduct the same
       preliminary PRP search activities described above. This search results in a PRP baseline
       report. In addition, Regional technical enforcement personnel conduct a comprehensive PRP
       search, including the identification of generators and transporters. Enforcement personnel
       also decide what specialized tasks will be performed, such as an assessment of PRP financial
       capability to pay for a removal action.  Early involvement of ORC in the PRP search and
       financial assessment can help OSCs and enforcement staff organize search efforts and
      can result  in a better product from a contractor or civil investigator (if involved).  As for all

                                          14

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                                                     ENFORCEMENT PROCEDURES
       removal actions, OSCs or enforcement staff may request the assistance of NEIC or contractor
       support. This expanded process results in an interim final PRP search report.

PRP Notification

       Following identification of PRPs, Regional enforcement staff, in consultation with OSCs,
       initiate actions to obtain PRP response. When possible, the Regional program office should
       issue notice letters to identified PRPs concerning their potential liability and inform them of
       the intended response action prior to the initiation of a removal action [ 12]. Regional enforce-
       ment staff, in coordination with OSCs, develop notice letters, which are subsequently issued
       by the Regional Administrator or his designee. Three types of removal notice letters exist
       [12,16]:

              •      Notice of Potential Liability and EPA Conduct of Removal Action which is
                    a notice of potential liability for a removal action that EPA has undertaken or
                    intends to undertake as well as the opportunity for PRPs to conduct work
                    (this may be given orally followed by written confirmation in emergencies)

              •      Notice of Potential Liability and Offer to Negotiate for Removal Action which
                    is a special notice under CERCLA section 122(e), that formal negotiations
                    will be held and that a formal moratorium on a removal action exists2

              •      Notice of Potential Liability for Removal Action which is an explanation
                    under CERCLA section 122(a)ofwhy special notice procedures underCERCLA
                    section 122(e) were not followed.

       Model removal notice letters are available in Office of Solid Waste and Emergency Response
       (OSWER) Directive 9834.10-lb [13].

       Emergency Actions

       For emergency removal actions, OSCs may notify PRPs orally by telephone or in person.
       The Regional office then confirms the oral notification and any requests for response by
       sending the PRP a general notice letter which should be reviewed by ORC when time permits.
       While a written notice letter usually precedes an Administrative Order, this is not always
       possible in emergencies.
      Emergency and time-critical removal actions do not follow special notice procedures due to the urgency of these
      situations. Under CERCLA section 122(e)(5), removal actions may be carried out during the moratorium when
      a significant threat to public health or the environment exists during the moratorium [12].
                                          15

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ENFORCEMENT PROCEDURES
       Time-Critical Actions

       For time-critical removal actions, OSCs follow the same notification procedures for obtain-
       ing PRP response as in emergency actions.  However, Regional enforcement personnel
       should issue notice letters before the start of the removal action. Enforcement staff and the
       OSC should also always review preliminary PRP search activities to ensure that identified
       PRPs have been notified.

       Non-Time-Critical Actions

       For non-time-critical removal actions, special notice letters may be issued to invoke formal
       negotiations and a 60-120 day moratorium on EPA response actions. First, OSCs and en-
       forcement staff review the interim final PRP search report and decide if additional resources
       should be expended either to identify more PRPs or to further establish the liability of
       identified PRPs. The PRP search review and follow-up activities should include the use of
       section 104(e) information requests [11]. Prior to the issuance of special notice letters or the
       beginning of negotiations, ORC and other enforcement staff should be consulted. OSCs and
       Regional enforcement staff then should issue the special notice letters and schedule negotia-
       tions as soon as possible to secure an enforcement-lead removal action within the established
       time frame.

State Notification

       For a removal action, States should always be notified prior to negotiations for, or issuance
       of, an Administrative Order. The appropriate State department or agency should be notified
       by letter, except in an emergency when preliminary notification may be made by telephone.
       All telephone notifications must be followed by written confirmation.

Negotiations, Settlements, and Orders

       Where viable PRPs have been identified and site conditions allow, OSCs, in consultation with
       Regional enforcement staff and ORC, plan and conduct negotiations and develop AOCs [12].
       Prior to conducting negotiations, OSCs, with appropriate support from Regional enforce-
       ment staff and ORC, should:

             •      Draft and issue notice letters specifying the work to be done and establishing
                   a time frame to negotiate an AOC

             •      Draft and obtain a copy of the Action Memo/Enforcement (see p. 21) for use
                   in negotiating an AOC; although a completed copy is not required, the Action
                   Memo serves as a useful leverage tool
                                         16

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                                               ENFORCEMENT PROCEDURES
        •      Draft and send a proposed AOC to the PRPs with the notice letter or shortly
              thereafter.

 Preparing the above documents prior to negotiations ensures that EPA will enter negotiations
 with a well-defined plan for PRP or, if necessary, Agency response.

 While conducting negotiations, OSCs and Regional enforcement staff meet with PRPs;
 negotiate the language of the AOC including general overall schedule and technical concepts
 in the workplan; and complete either an AOC that the PRPs agree to and sign, or issue a UAO.
 While the preferred outcome of negotiations is an AOC, EPA has the authority under section
 106 to issue a UAO to compel non-complying PRPs or non-PRPs (e.g., adjacent landowners)
 to conduct or comply with the removal action [9,15,16]. In some emergency or time-critical
 removal actions, sufficient time to negotiate consent agreements with PRPs is not available;
 therefore, OS Cs and Regional enforcement staff may find it necessary to bypass negotiations
 for an AOC and immediately issue a UAO.

 For simple removal actions, the AOC may include a work plan as an attachment. For more
 complex removal actions, the AOC often details the scope of work and requires the PRP to
 draft adetailed workplan as afirstdeliverable. All AOCs should contain provisions requiring
 reimbursement of the government's past costs and oversight costs.
 EXHIBIT 5.  CHECKLIST OF CRITERIA TO ISSUE UAO
The following checklist has been developed to assist OSCs in determining if a UAO may be issued.
OSCs should determine that the following activities are conducted prior to issuing a UAO.

	  Appropriate parties have been identified

	  Evidence exists of release or threatened release of a hazardous substance

	  Evidence exists that the release or threatened release is from a facility
      Evidence exists of an imminent and substantial endangerment to the public health or welfare or
      the environment

      Notice has been given to the affected State

      Removal action is consistent with applicable law, CERCLA and the NCP.
                                     17

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ENFORCEMENT PROCEDURES
       If viable, recalcitrant PRPs do not respond to their notice letters and do not sign an AOC,
       OSCs and Regional enforcement staff develop and issue a UAO. Exhibit 5 provides a
       checklist to assist OSCs in ensuring that all criteria have been satisfied to issue a UAO.

       The provisions of a UAO are similar to an AOC, except that more detailed findings of fact
       may be stated. Also, UAOs usually contain a provision requiring that PRPs provide notice
       of intent to comply within a specified period and typically do not contain past costs, stipulated
       penalties, or dispute resolution clauses. OWPE is developing a directive containing a model
       UAO and a model AOC to assist OSCs in preparing these documents.

Oversight of Enforcement-Lead Removal Actions

       Administrative Orders detail the activities PRPs must undertake or the cleanup goals they
       must achieve along with the completion date for the entire removal action [16].  OSCs,
       through the oversight process, monitor and determine compliance with the AOC or UAO.
       OSCs remain on the  site, contact on-site personnel daily, or visit the site periodically to
       monitor compliance. Contractors may assist OSCs in overseeing field activities and review-
       ing work plans, data, and reports. If the enforcement-lead removal action is not conducted
       appropriately or in a timely manner, in accordance with the AOC or UAO, OS Cs and Regional
       enforcement personnel may seek penalties, initiate a CERCLA section 106 judicial action,
       or perform the removal action. In either case,  oversight activities should include, but are not
       limited to:

             •      An initial meeting of the primary clean-up contract official, PRP-designated
                    coordinator, and OSC to review the work to be conducted and establish meth-
                    ods of contact and procedures, in the event of a deficiency in PRP perform-
                    ance

             •       Periodic status meetings with, or reports submitted to, the OSC to monitor
                    PRP progress

             •       Site inspections at critical  points in the removal process.

       In addition, a site completion meeting should be arranged to verify that all work was per-
       formed as directed.

Documentation

       Site File

       OSCs are responsible for establishing and maintaining a site file for each removal action they
       manage [4]. The  site file is composed of all documentation related to a site, including


                                         18

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                                                   ENFORCEMENT PROCEDURES
   operational, legal, financial, public relations, and technical documents. Contractor support
   and other Regional personnel may assist the OSC in maintaining the site file.

   The site file contains several subsets of documentation, discussed below, that are important
   for removal enforcement activities.

   Administrative Record File

   Section 113(k) of CERCLA requires the establishment of an administrative record3 consist-
   ing of documents upon which the selection of a response action is based. The administrative
   record, which is a subset of the site file, has two primary purposes:

           •      It is the basis for judicial review of any issues concerning the selection of a
                 response action. Because a proposed removal action must be supported by the
                 administrative record, the OSC should ensure the adequacy of the adminis-
                 trative record in the event the decision is challenged, such as in a subsequent
                 cost recovery case.

           •      It provides  for public participation in Superfund decisions,  including the
                 opportunity, as appropriate, for comment on the response action selection.

   Because judicial review is limited to the administrative record for selection of the response,
   the administrative record must be sufficient to document EPA's response decisions. This
   means including in the administrative record file all documents relied upon by EPA in making
   its decision, and all public comments relevant to the decision, whether or not they support the
   Agency's response selection [10].

   Enforcement-specific documents are included in the administrative record file if they contain
   information relevant to the response selection or public participation in  the response
   selection, but do not pertain exclusively to PRP liability. Examples of appropriate documen-
   tation that should be in the administrative record file as described in section 300.810 of the
   NCP include:

           •      Factual information and data such as evidence of a release  or threat of a
                 release, preliminary site evaluations, sampling plans,  technical studies,
                 endangerment or risk assessments, and data submitted by the  public

           •      Policy and guidance pertinent to the selection of the response
3  The administrative record is the completed compilation of documents on which the Agency based its selection
   of a response action. The administrative record file refers to the ongoing collection of documents the Agency
   anticipates will include those constituting the administrative record when the final selection of the response is
   made [10].

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ENFORCEMENT PROCEDURES
             •      Public participation information such as public notices, public comments,
                    and responses to those comments

             •      Enforcement documents such as Administrative Orders

             •      The administrative record file index

             •      Documentation of State involvement

             •      Decision documents including original Action Memos, Action Memo/En-
                    forcement, and any subsequent Action Memos.

      OSCs, in conjunction with their Regional Administrative Record Coordinators, are respon-
      sible  for establishing the  record for a  site.  Generally,  the Administrative Record
      Coordinator is responsible for compiling and maintaining the record files, while the OSC, in
      consultation with ORC, selects the documents to be included. OSCs should follow the same
      procedures for establishing  an administrative record for all  removal actions,  including
      enforcement-lead actions. PRPs typically are required to maintain records to assist EPA in
      any future enforcement activities and to assess compliance with Administrative Orders, but
      cannot be responsible for decisions concerning which documents  are included in the
      administrative record.

      Administrative records need to include a confidential portion when privileged information
      is required to document Agency decisions, but must be withheld from the public. Confiden-
      tial information includes these privileges:

                   Trade secrets, commercial, or financial information
                   Personal privacy
                   Investigatory files relating to law enforcement
                   State secrets
                   Confidential informant
                   Information exempted by other statutes.

      In addition to enforcement-specific information, the site file and administrative  record
      contain other documents that are critical for the support of enforcement activities.  These
      documents are discussed further below.
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                                                   ENFORCEMENT PROCEDURES
  Decision Documentation

  Three kinds of removal action decision documents are important for effective enforcement
  activities:

         •      Action Memos, including exemption requests (these belong in both the
                administrative record and the site file)

         •      Documentation of decisions not to take complete enforcement action (this
                belongs in the site file)

         •      Removal Action Cost Recovery Close-out Memo (this belongs in the site
                file).

  While all of the above documents  include summaries of enforcement information and
  provide justification for the relevant decision, the signing of the Action Memo authorizes
  obligations from the Fund for implementing the selected response, and generally signifies the
  completion of the response selection decisionmaking. Documents relevant to the response,
  however, may be subsequently added to the administrative record file in certain situations as
  described in section 300.825 of the NCP [10].

  An Action Memo documents the approval of the selected removal response and is important
  in the enforcement process. It is the decision document included in the administrative record
  file for selection of the response, and provides an incentive for PRPs to settle if they believe
  EPA will proceed with an action with or without their participation.

  Enforcement information must be discussed in an addendum to all Action Memos, including
  exemption requests. This information, generally, should not be placed in the administrative
  record file:4

         •      Extent of search for, and identification of, PRPs

         •      Financial status of PRPs

         •      Issuance of notice letters (special or general)

                Previous negotiations that have been held with the PRPs and the results of
                those negotiations

         •      Additional enforcement history, strategy, discussion, and recommendations.
4  Exemption requests, ceiling increases, and requests for changes in the scope of work should refer to and attach
   theoriginal ActionMemotoavoidduplicatingunchanged enforcement details. Anynewenforcementinformation,
   however, must be included in each subsequent Action Memo.
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ENFORCEMENT PROCEDURES
      All of the above information must be placed on a separate addendum to the Action Memo
      and marked "Enforcement Sensitive."
      In addition to the Action Memo required to initiate a removal action, subsequent Action
      Memos are required to document a request for an exemption from the 12-month or $2
      million statutory limitations on removal actions, project ceiling increases, or changes in the
      scope of work. OSCs should ensure that all potential avenues of securing PRP cleanup or
      funding for cleanup have been pursued before submitting a request for statutory exemption
      to Headquarters. (In extreme emergencies, however, exemption requests can be submitted
      directly to Headquarters, with PRP searches and other enforcement activities conducted as
      time permits prior to initiating on-site action.)
      Action Memos must be prepared for both Fund-financed removal actions and removal
      actions to be conducted by PRPs. An Action Memo for an enforcement-lead removal action
      need not include estimated costs or authorization for  funding, but in all other respects
      it  should look the same as a Fund-lead Action Memo. Because of the difference between
      the two with regard to costs and funding, Regions may designate an enforcement-lead memo
      as "Action Memo/Enforcement."

      Regions may use a Fund-lead Action Memo they have already prepared as documentation
      for an enforcement-lead case. Some Regions have found a Fund-lead Action Memo, with
      estimated costs and authorization for funding, to be useful in negotiations to indicate EPA's
      resolve to go ahead if the PRP does not act. As with Fund-lead removal actions, the timing
      for preparing the Action Memo/Enforcement will depend on the urgency of the action.  In
      time-critical situations, it may be necessary for the PRP to initiate action prior to the
      preparation of an Action Memo or an enforcement order.

      Decisions not to take complete enforcement action also require documentation. Typical
      situations include when a decision is made that known PRPs are not viable, or that notice
      letters will  not be issued to known PRPs prior to starting a removal action, or  that an
      administrative order will not be issued to known PRPs. OSCs should ensure that any other
      significant enforcement decisions are appropriately documented.

      Removal Action Cost  Recovery Close-out Memos are required when, on the basis of
      enforcement information, EPA decides not to pursue cost recovery action for Fund monies
      used to finance a removal action [6], Documented decisions not to pursue cost recovery
      are important for satisfying EPA's internal accountability for cost recovery on a site-by-site
      basis [7]. In most Regions, Removal program personnel, in conjunction with ORC, prepare
                                         22

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                                              ENFORCEMENT PROCEDURES
Removal Action Cost Recovery Close-out Memos. These memos are confidential and are
not placed in the administrative record for response selection (if the memo is the only source
for important response selection information, a separate memo containing the response
selection information should be prepared and placed in the administrative record file).

Cost Recovery Documentation

Costs associated with the oversight of enforcement-lead removal actions and with Fund-lead
removal actions are fully recoverable (see pp. 26-27 for more information  on the cost
recovery process).   Because of  the possibility of a cost recovery action or other case
involving the use of CERCLA (e.g., a challenge to the selection of a response action; a claim
for  reimbursement under CERCLA section  106), OSCs must observe, document, and
preserve critical facts about the response and its costs.  Cost documentation refers to the
specific set of procedures that OSCs use to maintain a record of all on-site activities and
associated costs [5]. The documentation process must ensure that physical evidence essential
for litigation is collected and preserved in a manner that will withstand judicial scrutiny, and
that the government has maintained sufficient evidence of total costs and substantiation of
the need to incur those costs.

The essential elements of a cost recovery action and the nature of the evidence required to
sustain cost recovery are:

       •     Evidence of a release or threatened release of a hazardous substance

       •     Evidence of the liability of the defendant(s) for the hazardous substance
             release or threatened release under section 107(a) of CERCLA

       •     Substantiation that response actions for which CERCLA funds were
             expended were not inconsistent with the NCP

       •     Proof of incurred costs and their payment

       •     Substantiation of the completion date of the removal action to demonstrate
             that the statute of limitations was not exceeded (see p. 27).

Cost documentation should, therefore, be an ongoing activity throughout the removal process
to facilitate issuance of demand letters, timely referrals to the Department of Justice (DOT),
and reimbursement to the Fund. All AOCs should include a provision requiring reimburse-
ment of oversight costs and past costs. OSCs or Regional enforcement staff should also
demand oversight costs in UAOs prior to filing for cost recovery.
                                   23

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ENFORCEMENT PROCEDURES
       The method of cost documentation should be consistent from day to day at a specific
       response action.  The documentation method an OSC selects  should  ensure thorough
       recordkeeping of the following seven categories of information:

              •     Chronology of events and decisions

              •     Site conditions

              •     Movement of personnel and equipment (e.g., site entry and exit)

              •     Contractor planned and authorized work compared to actual
                    accomplishments

              •     Contractor costs (e.g., commercial cleanup contracts)

              •     Oversight costs

              •     Other costs (e.g.,  National Contract Laboratory  Program services, TAT,
                    Environmental Response Team, Regional laboratory services, Interagency
                    Agreements, direct Headquarters and Regional intramural obligations5/ site
                    access/acquisition) [18].

       The specific cost items to be documented vary depending upon the purpose of the documen-
       tation.  Tracking response costs against the project ceiling and $2  million statutory limit
       (without an exemption); for example, does not include costs associated with CERCLA
       section 104(b) investigations, which are tracked in order to support cost recovery actions.

Public Participation

       EPA's public participation activities in the Superfund program, as a whole, consist of all those
       public outreach activities conducted throughout the planning and implementation of Superfund
       responses.  Sections 300.415 and  300.820 of the NCP specify two  forms of public
       participation for all removal actions:

             •      Community relations activities - designed to integrate the specific informa-
                    tion needs of the community into the design of the communications approach
                    or community relations plan for the site [14].
      The term intramural obligations refers to CERCLA funds expended for costs internal to EPA, including direct
      costs such as salaries, travel and per diem of on-site EPA personnel, supplies, direct equipment rental, and
      maintenance, and indirect costs, including EPA Headquarters and Regional administrative and management
      costs.
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                                               ENFORCEMENT PROCEDURES
       •       Administrative record activities - designed to serve as the basis for the
              response selection and as a vehicle for public participation in the selection of
              a response action [10].

The application of these requirements is site-specific, and they have been designed to ensure
an appropriate level of public involvement without causing unnecessary delay. For instance,
the timing and type of community relations activities required for a removal action depend
on the duration of on-site activity, while the timing of administrative record requirements is,
in part, based on the length of the planning period available prior to the initiation of on-site
activities.

EPA is the lead agency for developing and implementing public participation activities at
enforcement-lead sites. As the Agency's lead technical representative and director of public
participation activities at  a  site, the OSC is responsible for conducting or delegating
responsibility for these activities. APRPmay assist in the implementation of these activities,
with EPA oversight, at the discretion of the Regional office. While the public participation
activities required for an enforcement-lead response do not differ from the activities required
for a Fund-lead response, the nature of an enforcement-lead response necessitates a sensitive
approach in communicating information to the public. In general, OSCs should coordinate
closely with ORC and other public participation staff when PRPs are active in the planning
and design of the removal action.

Negotiations

Negotiations between EPA and PRPs are generally conducted in confidential sessions [12].
Planning  and  communication efforts must  be sensitive to  the potential release  of
information that may be detrimental to the settlement and/or litigation process.  The OSC is
responsible for approving the release of any information regarding the negotiations to the site
community. The OSC should work with the Community Relations Coordinator to identify
what precautions should be taken while conducting community relations at the site, such as
restricting discussions with the press or public regarding pending litigation.  If the site has
been referred to DOJ, is in litigation, or is the subject of negotiations, the OSC should obtain
ORC approval to release information about the status of litigation to the public.

Following the conclusion of negotiations, information concerning the requirements of the
AOC or UAO should be made available to the community in the administrative record.
Community relations staff should discuss the terms of the AOC and UAO with, and describe
the removal action to, citizens, local officials, and the media. If the PRP subsequently fails
to respond appropriately to an administrative order, any public statements or information
releases regarding the status of the actions at the site or prospective EPA actions must be
cleared by the  OSC (and ORC if enforcement or  cost recovery litigation is considered
possible).
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ENFORCEMENT PROCEDURES
       Community Relations Implementation

       As part of preparing for community interviews to develop the community relations plan
       (CRP)6, community relations staff should discuss the site with other Regional staff in order
       to identify what special precautions, if any, should be taken in the course of conducting the
       interviews [14]. The interviews should not be considered part of the PRP investigation for
       the site; if such information is volunteered, the information should be relayed to enforcement
       staff for additional follow up. To incorporate the full range of views, lead agency staff may
       consider interviewing PRPs in the community. The OSC, in conjunction with enforcement
       personnel and the Community Relations Coordinator, decides which community members
       will be interviewed.

       The CRP should  incorporate input from all Agency personnel directly  affected by the
       schedule and conduct of activities presented in the document.  In an enforcement-lead action
       where the PRP shows sufficient interest, commitment, and capability to warrant some level
       of participation in implementing the CRP, the EPA and PRProles should be explicitly defined
       in the CRP. If the PRP is involved in the conduct of community relations activities, the OSC
       should let the community know the level of participation and responsibilities to be assumed
       by  the PRP under the direction of the  OSC.  The following activities are  necessary
       to finalize the CRP when PRPs are involved in community relations implementation:

             •     The ORC and PRP attorneys must review the accuracy of any legal informa-
                   tion contained in the CRP

             •     The OS C must make a copy of the final CRP available to all interested parties,
                   including the attorney for the PRP

             •      The OSC must apprise other response personnel of any situations or enforce-
                   ment activities that may affect the implementation of the CRP.

       Administrative Record Activities

       Publicly available documents concerning response selection must be made available to all
       interested parties at the same time [14].

       The text of all comments, criticisms, and new information submitted by the public, including
       PRPs, during the public comment period must be included in the administrative record [10].
       After the close of the public comment period, EPA must develop a written response to
       significant comments that reflects the Agency's consideration of these comments for inclu-
       sion in the record file.
      A formal CRP is required for removal actions where on-site action is expected to extend beyond 120 days from
      the initiation of on-site removal activity.

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                             COST RECOVERY
CERCLA contains a strict liability scheme. Further, Federal courts have found PRPs to be jointly
and severally liable when the harm is not divisible.  CERCLA also authorizes EPA to seek
reimbursement from PRPs for all costs incurred by the Agency, not inconsistent with the NCP,
for response actions taken pursuant to CERCLA [6,8]. If the site involved a Fund-financed removal
action, then the PRPs are liable for all the response costs not inconsistent with the NCP.  Prior to
referral of a cost recovery case to DOJ, OSCs help to document costs and draft demand letters to be
sent to PRPs. They may also be involved in negotiating with PRPs and compiling referral packages.
Exhibit 6 illustrates the cost recovery process.

As response activities are documented by the OSC, a demand for payment of all past response costs
is sent to the PRPs [1].  Demand letters are issued in all cases to the extent appropriate and
practicable where costs have been incurred under CERCLA and PRPs have been identified,
regardless of whether or not a decision has been made to pursue cost recovery. The written demand
letter triggers the accrual of pre-judgement interest on response costs sought, and is a prerequisite
for enforcement [16,17]. OSCs should consider issuing demand letters accompanied by CERCLA
section 104(e) information requests to gather additional evidence and identify additional PRPs for
cost recovery purposes.
   EXHIBIT 6.  COST RECOVERY PROCESS
                                                              ORCand
                                                          Enforcement Program
                                                            Staff determine
                                                           whether to pursue
                                                             cost recovery
Complete
Removal
 Action
         Issue Demand
          Letters and
       Information Requests
Complete
 Action
 Memo
                 Undertake
                  Removal
                   Action
                                                                     Cost Recovery
                                                                       Close-out
                                                                     Memorandum
                       Reach Settlement or
                       Pursue Cost Recovery
Finalize Cost
Documentation
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COST RECOVERY
Following the issuance of demand letters, ORC gives the PRPs a period of time in which to initiate
negotiations concerning the Agency's claim. OSCs may be involved in PRP settlement negotiations.
If the PRPs do not settle, enforcement program staff and ORC decide whether or not to pursue cost
recovery.  The statute of limitations for cost recovery is three years from the completion7 of the
removal action, unless a "consistency" exemption to the statutory limits under CERCLA section
104(c)(l)(C)has been approved (in these circumstances, the statute of limitations is six years
from the date of the exemption) [3]8. A decision not to pursue cost recovery must be documented
in a Removal Action Cost Recovery  Close-out Memorandum prepared by Removal program
personnel in consultation with ORC (see p. 21)[7]. For those removal actions selected for referral
to DOJ, OSCs may be involved in developing the referral package. All removal actions involving
PRPs that may be liable for removal costs and where total  response costs that exceed $200,000
should be referred to DOJ no later than 12 months after the  completion of the removal action.
          The completion of the removal action generally is defined as the day the scope of work identified in
          the original or modified Action Memo is completed [3]. The Final Pollution Report submitted by the
          OSC normally contains this information.

          If remedial action is initiated within three years after the completion of the removal action, the reme-
          dial action statute of limitations applies, section 113(g)(2)(B).

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                          APPENDIX A. REFERENCES9

Guidance

[1]     "Draft Guidance on Use and Issuance of Written Demand for Recovery of Costs
          Under CERCLA"10

[2]     "Function and General Operating Procedures for the Criminal Enforcement Program,"
          Memorandum from Courtney M. Price (January 7,1985)

[3]     "Removal Completions and Statute of Limitations," Memorandum from Timothy Fields, Jr.
          and Lloyd Guerci to Addressees (August 1,1989)11

[4]     OSWER Dir. 9360.2-01, "Model Program for Removal Site File Management" (July 1988)

[5]     OSWER Dir. 9832.0-1A, "Procedures for Documenting Costs for CERCLA Section 107
          Actions" (January 30,1985)

[6]     OSWER Dir. 9832.1, "Cost Recovery Actions under the Comprehensive Environmental
          Response, Compensation, and Liability Act of 1980" (August 26,1983)

[7]     OSWER Dir. 9832.11, "Guidance on Documenting Decisions Not to Take Cost Recovery
          Actions" (June 7,1988)

[8]     OSWER Dir. 9832.13, "Superfund Cost Recovery Strategy" (July 29,1988)

[9]     OSWER Dir. 9833.1, "Issuance of Administrative Orders for Immediate Removal Actions,"
          Memorandum from Lee Thomas to Addressees (February 21,1984)

[ 10]   OSWER Dir. 9833.3A-1, "Final Guidance on Administrative Records for the Selection of
          CERCLA Response Actions" (December 3, 1990)

[11]   OSWER Dir. 9834.4A, "Guidance on Use and Enforcement of CERCLA Information Re-
          quests and Administrative Subpoenas" (August 25,1988)

[12]   OSWER Dir. 9834.10, "Interim Guidance on Notice Letters, Negotiations, and Information
          Exchange" (October 19,1987)
   9  Bracketed numbers appear throughout the text and correspond to the references listed in this appendix.
      These references may be consulted for additional information on enforcement topics.
   10  Draft document.
   11  Draft document.
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[13]   OSWER Dir. 9834.10-lb, Appendix C, "Model Notice Letters" (February 7,1989)

[14]   OSWER Dir. 9836.0-1 A, "Community Relations During Enforcement Activities and Devel-
         opment of the Administrative Record" (November 3,1988)

[15]   "Use and Issuance of Administrative Orders under Section 106(a) of CERCLA," Memoran-
         dum from Lee Thomas and Courtney Price to Addressees (September 8,1983)

Manuals

[16]   OSWER Dir. 9837.2A, Enforcement Project Management Handbook (January 1991)

[17]   OSWER Dir. 9834.3-1A, PRP Search Manual (August 27,1987)

[18]   OSWER Dir. 9360.0-02B, Removal Cost Management Manual (April 1988)

Statutes and Regulations

The Comprehensive Environmental Response, Compensation, andLiability Act of 1980, as amended,
      42 U.S.C. sections 9601-9675

The National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR Part 300
      (March 8,1990)
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                 APPENDIX B.  KEY WORDS INDEX

Action Memo	3,20,21,22

Action Memo/Enforcement	16,20,22

Administrative Orders
      Administrative Order on Consent	2,4,12,16,17,18
      Unilateral Administrative Order	2,4,12,17,18

Administrative record	3,12,19,20,21,26

Administrative Record Coordinator	9,10,11

Community Relations
      Community Relations Plan	8,9,24,26
      Community Relations Coordinator	•.	9,25,26

Contract Resources
      TAT	10
      TES	10
      ARCS	10

Cost Recovery
      Close-out Memo	21,22,27,28
      Procedures	3,12,27,28

Criminal investigations	10

Demand letters	23,27,28

Department of Justice	23,25, 27,28

Enforcement-Lead Removal Actions	18

Information requests (CERCLA section 104(e))	13,14,16,27

Liability	,	,	«	4,15,23,27

National Enforcement Investigations Center	10,12,14

Negotiations	12,16,17,25,28

Notice Letters	15,16,17,21
                                  31

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Notification	12,15,16

Office of Regional Counsel	2, 8,9,11,28

On-Scene Coordinator	7,8

PRP
       Definition of	1
       Notification	11
       Searches	9,11,12,13,14

Public participation	8,9,19,24,25

Regional technical enforcement staff	8,9

Removal Actions
       Emergency	1,13,14,15
       Non-time-critical	2,13,14,16
       Time-critical	2,13,14,16

Settlement	12,16,28

Site File	18,19,21

State notification	16
                                                  * U.S. G.P.O.:1992-311-893:60318

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