oEPA
Washington. DC 20440
OSWER Directive Initiation Reauest
'-\ /^ Originator Information
Name of ComaeffWson /
Lead Office ^J" (f
D OERR [j
D OSW Q
] OUST
3 OWPff
J AA-OSWER
Mail Cod*
WH-527
Interim Directive Number
9836.1
Telephone Number
475-6770
Approved for Review *
Signeture of Office Director
n a. &^t
Date
J •* 'ZO'' 6**
TitJe
Comtunity Relations Activities at Superfund Enforcement Sites
Summary of Directive
This clarification memorandum supplements the Interim Guidance
on Community Relations during Enforcement by clarifying the role
of Potentially Responsible Parties in community relations,
by addressing the coordination between EPA and DOJ and by
clarifying public comment periods for Administrative Orders.
Key Words: conmunity relations, enforcement, PRPs
CERCLA, activities, sites, process
Vpe of Directive /Manual. Policy Directive, Announcement, etc >
t , r r- 1—1 i^f'i
Status
D Draft
(_3 Final
QN.~
a..,,
Does this Directive Supersede Previous Directive^)? | | Yes [\] No Does It Supplement Previous Directivetsi'
f Yes to Either Question. What Directive (number, title!
Review Plan
3 AA-OSWER
OH OERR
Q OSW
D
H
OUST
OWf€
l£J OECM
G3 OGC
D OPPE
Other (Spicifyt ~-H~i -
This Request Meets OSWER Directives System Formet
Signature of Lead Office Directives OWcer
Date
Signature of OSWER Directives Officer
Date
EPA Form 1315-17 (10-SS)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OP
SOLiO VSASTE AMO EMERGENCY RESPONSE
_
28 1985
MEMORANDUM
SUBJECT: Community Relations Activities at Superfund
Enforcement Sites
r-^-J/ A),
Enforceme
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
TO: Addressees
This memorandum clarifies certain policies and procedures
Included In the March 22, 1985, Interim Final Policy on
Community Relations Activities at Superfund Enforcement Sites.
Specifically, this memo discusses:
o Public comment on Administrative Orders (AOs) on Consent
for RI/FS work (page 4, last sentence, paragraph 2 of the
Chapter) ;
o Public review of workplans and other site-specific
documents ;
o Potentially Responsible Party (PRP) Involvement In
community relations activities, and;
o Obtaining Department of Justice (DOJ) concurrence,
when appropriate, on community relations activities.
It Is written In response to Regional staff questions raised
during Regional enforcement training on community relations.
Public Comment on AOs
In several places, the Enforcement Chapter discussed
requirements for public comment on Administrative Orders on
Consent for RI/FS work. There Is no mandatory requirement
for such comment. This provision is intended to allow public
comment If, In the Region's Judgment, It would benefit the
'clean-up effort, not unduly delay the RI/FS and not delay or
hinder unacceptably the enforcement process. For example,
Administrative Orders on Consent to Initiate RI/FS work and
Administrative Orders for emergency actions are actions for
which public review and comment on the Administrative Order
would not likely be provided. We do think that the public
should be Involved in or Informed of the decision to allow
PRPs to do the RI/FS.
-------
OSWER # 9836.1
-2-
PRP Preparation of Workplans, Public Review of Workplans,
Safety Plans and other documents related tc the RI/F5
The Enforcement Chapter does not specifically address
public review of workplans, safety plans, and other documents
related to the RI/FS that are generated by PRPs pursuant to
CERCLA enforcement and reviewed and approved by EPA staff.
These documents may be made available for public review in
accordance with guidance established in the community relations
handbook. The Enforcement Chapter provides guidance on
community relations for an enforcement RI/FS, so use that
guidance for ?RP RI/FS. (See Section D on page 7 of the
Enforcement Chapter.)
Potentially Responsible Party Involvement in Community Relations
Activities
Community Relations planning and Implementation activities
conducted at federal-lead enforcement sites are to be managed
by EPA staff. Since community relations activities serve as
the primary mechanism for communications between EPA and
the public during enforcement actions, we do not foresee
circumstances where it would be appropriate to allow PRPs to
manage these activities.
EPA must maintain the lead and accountability for the
development and implementation of community relations
activities. PRPs may participate in public meetings and
they may prepare fact sheets. However, these fact sheets
are to be reviewed and approved by EPA staff for accuracy
and to ensure adherence to our policies and procedures.
Agency personnel should avoid "negotiating" these documents
with PRPs. Agency personnel are accountable for the content
of the fact sheet and its distribution. The Region should
be selective in allowing PRPs to develop fact sheets. In
addition Regional personnel should acknowledge on the fact
sheet that it was .prepared by the PRP.
If the Region decides to provide a draft community
relations plan to the PRP and the public for review, the
document must be provided to all interested parties at the
same time. Comments may be incorporated when you believe
they are Justified.
DOJ Concurrence
The last Issue concerns DOJ or the Assistant U.S.
Attorney (AUSA) concurrence on fact siieets, press releases
and community relations plans when a site has been referred
or is likely to be referred for litigation. The Chapter
states that Regional Superfund Community Relations Coordinators
-------
-3-
wlll be responsible for coordination with the Department of
Justice on development of these documents.
We have discussed this concurrence process with DOJ.
EPA and DOJ agree that the Office of Regional Counsel staff
should be the contact point between the Superfund Community
Relations Coordinator and DOJ or the AUSA staff.
Community relations activities at EPA-lead enforcement
sites require close coordination between ORC, Technical
Superfund staff and the Community Relations Coordinators.
I appreciate your hard work in this area and will be
ensuring that our KQ staff provide you with necessary
guidance. Please call Ms. Pamela A.'Garrow of my staff
(475-8112) if you hav.e any questions.
Addressees
Director, Waste Management Division, Regions I, IV, V, VII, VIII
Director, Emergency And Remedial Response, Region II
Director, Hazardous Waste Management Division, Region III
Director, Air & Waste Management Division, Region VI
Director, Toxics & Waste Management Division, Region IX
Direcctor, Hazardous Waste Division, Region X
cc: Regional S-perfund Community Relations Coordinators, Regions I-X
Regional Counsel, Regions I-X
Bill Hedenan, Director, Office of Emergency and Remedial Response
Susan Bullard, OSWER Community Relations Coordinator
OWPE Supervisory Staff
Fred Stiehi, Office of Enforcement and Compliance Monitoring
Steve Leifcr, Office of Enforcement and Compliance Monitoring
Jerry Schwartz, Office of Enforcement and Compliance Monitoring
Nancy Firestone, Department of Justice
Daphne Geramlll,'Superfund Community Relations, OERR
Mat White, Office of Public Affairs
Removal and Remedial Branch Chiefs, Regions I-X
-------
Attachment XIV
Interim Guidance on Community
Relations Activities
3/22/85
-------
* -"- * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 2 1985
OP
SOLID WASTE AND EMERGENCY RE??CNSE
MEMORANDUM
SUBJECT: Community Relations Activities at Superfund
vEhforejemerft Sites — Interim-Guidance
FROM: Jack WC MTcGraw
Acting Assistant Administrator
TO: Regional Administrators
Attached is the interim guidance for conducting community
relations activities at Superfund enforcement sites. The
guidance is in the form of Chapter VI that will be added to the
September 1983 document entitled "Community Relations in Super-
fund: A Handbook," which contains Chapters I through V. The
Handbook is being revised to reflect experience with the
community relations program to date. Based .on experience to b'e
gained over the next several months, the enforcement chapter
will be revised as necessary and issued as final guidance early
in 1986 as part of the overall Handbook revisions.
The chapter has been developed in coordination with inter-
ested offices, within EPA and with the Department of Justice. It
represents a carefully constructed consensus as to how to enable
an extensive community relations" program in the course of enforce-
ment actions while at the same time preserving the integrity of
the enforcement process. Because of the complexity and differing
circumstances involved in enforcement actions, the chapter cannot
address every situation that will arise; it does, however, provide
a sound structure for determining the nature and scope of site-
specific community relations activities. A particularly important
emphasis is placed on consultation among Regional community rela-
tions, technical enforcement, and Regional Counsel staff, and
between these staff and Department of Justice personnel once a
case has been referred, or is likely to be referred, for litiga-
tion. This consultation is key to successful implementation of
the chapter.
-------
OSWER * 9836.0
-2-
The chapter is applicable to all Superfund enforcement
actions. However, it is not retroactively applicable; that is,
current enforcement actions should not be delayed in order to
implement community relations activities that would have been
appropriate at some earlier point in the enforcement process had
the chapter been in effect. The provisions of the chapter should
be applied as appropriate to ongoing enforcement actions from
the date of your receipt of the chapter.
A workshop to explain the chapter is being developed by a
Headquarters/Region/Department of Justice work group. The half-
day workshops will begin within approximately one month, and will
be offered in each Region. It will be important for all Regional
personnel involved in Superfund enforcement to attend. Conse-
quently, I ask that you make staff participation a priority. .We
will apprise you of the schedule once it has been developed.
Attachment 0
cc: Regional Counsels
Hazardous Waste Management Division Directors
Superfund Branch Chiefs
Superfund Enforcement Branch/Section Chiefs
Superfund Community Relations Coordinators
-------
CHAPTFP 6
COMMUNITY RELATIONS DUPING ENFORCEMENT ACTIONS
An effective community relations program is an essential part
of every Superfund enforcement action. This chapter^provides
guidelines for developing and administering community relations
programs during enforcement proceedings brought under the authori-
l/
ties of CERCLA.
The purposes of community relations activities related to
Superfund actions, described in the preceding chapters, essentially
are to ensure that:
(1) community concerns are considered to the Greatest extent
practicable in determining site remedies;'
(2) affected citizens have an opportunity to participate
in the remedy-selection process, principally through review and
comment; and
(3) communities are kept informed during Agency actions.
I/ CERCLA and the National Contingency Plan, including require-
ments regarding community relations, apply to actions carried out
by a State where CERCLA funds are used to support the State
activity. As of the date of issuance of this chapter, no CERCLA
funds have been used to underwrite State costs where the State
has assumed lead enforcement responsibility for a site. Conse-
quently, there has been no basis in the past for requiring States
to conduct community relations activity at State enforcement-lead
sites. However, OSWER is planning to begin funding remedial
investigations and feasibility studies (RI/FS) at selected State-
lead enforcement sites, and may in the future be able to provide
a broader range of assistance. Accordingly, the appropriate
provisions of this chapter will apply to that aspect of State
activity at a State-lead enforcement site that is funded in whole
or in part by CERCLA monies.
-------
6-2
It must be recognized, however, that the enforcement process
is by its nature adversarial, even where there is an apparent
interest on the part of potentially responsible parties to work
willingly with the Agency to arrive at appropriate site cleanup.
In order for the government to protect its enforcement position,
both in court and during negotiations, there are necessary limi-
tations on the release or discussion of certain information.
For example, there can be no discussion of enforcement strategy
and timing, nor can there be release of information that might
disclose the strengths and weaknesses of a case or that is other-
wise privileged and protected under the law. In addition, depend-
ing upon specific circumstances, there may be other limitations
on. the scope of community relations activities, particularly
where a case has been referred to the Department of Justice for
litiaation.
The objective of this chapter is to establish a structure
that will allow communication between the Government and the
affected community in the course of enforcement actions, while
at the same time accommodating precautions that are necessary to
preserve the ability of the Agency to prosecute those enforcement
actions on behalf of the public. Therefore, while community
relations activities for enforcement sites basically will be the
same as for Fund-lead sites, modifications probably will be
required at times to reflect the unigue aspects of the enforcement
process. Because enforcement circumstances will vary at each
-------
OSWER 4 9836.0
6-3
site, this chapter cannot address every situation that will
arise. Rather, the chapter provides a context within which
government staff, through sensitivity and careful judgment, can
strike a balance between the purposes of community relations
activities and the objectives of government enforcement actions.
The chapter beains with a summary of the Superfund enforce-
ment process (Section A). It then provides guidelines for con-
ducting community relations activities in the course of enforcement
actions. The preceding ch-apters of this handbook contain detailed
explanations of many of the activities described in this chapter.
The community relations activities in this chapter are des-
cribed within the context of various enforcement actions that may
or may not occur in the order of presentation. For example,
negotiations may be entered into with potentially responsible
parties regarding the desian and implementation of the RI/FS.
In this case, the provisions for community relations during
negotiations (Section F) a'lso would apply in addition to those
described for the period prior to the RI/FS (Section C). The
ordering in the chapter is for convenience of explanation. The
sections following the summary of the enforcement process are:
0 Development of the community relations plan (Section B);
0 Community relations prior to the remedial investigation
and feasibility study (RI/FS) (Section C);
-------
6-4
0 Community relations during and upon completion of the
RI/FS (Section D) ;
* Potential public participation in technical discussions
with potentially responsible parties and government
representatives to discuss aspects of site remedy
(Section E) ;
.° Community relations during and upon completion of negotia-
tions with potentially responsible parties (Section F);
0 Community relations during and upon completion of liti-
gation (Section G);
0 Community relations during responsible party cleanup
. (Section'H) ; and '
8 Community relations during removal actions (Section I).
A. THE ENFORCEMENT PROCESS
The enforcement process under CERCLA will vary with the
circumstances of each site. However, a description of the basic
approach is set forth here to help the reader follow the later
discussions in this chapter.
CERCLA section 104 authorizes the government to respond to
releases or threatened releases of hazardous substances, pollu-
tants, and contaminants, unless the Government determines that
the responsible parties will respond in a timely and proper
-------
S 3OJC.O
6-e
manner. EPA may seek to compel potentially responsible parties
through litiaation or administrative order to clean up hazardous
substances or to pay the costs of government response, or EPA
may negotiate and settle with potentially responsible parties
regarding cleanup and cleanup costs.
The enforcement process begins with a search for potentially
responsible parties associated with each site, including aenera-
tdrs, transporters, and facility owners and operators. When
potentially responsible oarties (PRPs) are identified, EPA eval-
uates their ability to undertake cleanup actions properly. Usually,
before the Agency begins its own response activities, EPA attempts
to send notice letters to the potentially responsible parties, in-
'forming t_hem of their potential liabilities, reauesting information
under section 104(e) of CERCLA and section 3007 of the Resource
Conservation and Recovery Act (RCRA), and providinc an opportunity
to meet with the Agency to discuss possible cleanup activities
that the PRPs might undertake. For example, PRPs may perform the
RI/FS if they aaree to follow the work plan for the RI/FS developed
by EPA. (See the memorandum entitled "Participation of Potentially
Responsible Parties in Development of Remedial Investigations
and Feasibility Studies Under CERCLA, signed March 20, 1984, by
Lee M. Thomas, Assistant Administrator for Solid Waste and Emer-
gency Response, and Courtney M. Price, Assistant Administrator
for Enforcement and Compliance Monitoring.) Or, EPA may conduct
the RI/FS, then seek to compel or negotiate with potentially
responsible parties to design and construct the remedy.
-------
6-6
At many sites, however, a Fund-financed removal action or
RI/FS will be conducted before the final decision is made whether
or not to pursue enforcement actions. When the removal action or
RI/FS is completed, EPA may seek to secure responsible party fund-
ing and management of any later stages of the response .through
issuance of an administrative order or filing of a lawsuit, both
of which may involve negotiations, or some combination of these
act ions.
Where there are to be neaotiations, a Government negotiating
team is formed. The leader of the negotiating team (or the team's
designee) serves as a liaison between the negotiating team and
the Regional Superfund Community Relations Coordinator. The
negotiating team leader is responsible .for keeping the Regional
Sunerfund Community Relations Coordinator apnrised of the neootia-
tion schedule. The Regional Superfund Community Relations Coordi-
nator is responsible for advising the negotiating team on Superfund
community relations policy and for managing community relations
activities approved by the team.
If the negotiations -- whether for the RI/FS or for site
cleanup -- result in an agreement by responsible parties to carry
out the appropriate actions, as a general rule their consent is
obtained in writing through a consent decree issued by a court,
or through a consent administrative order issued by EPA. The
-------
OSWEK if
6-7
execution of a proposed consent decree by responsible parties
and the government is followed by a public comment oeriod of at
least 30 days (see Sections F and G). The court may also hold a
hearinq during this time, either in response to public comments
or on its own accord. After a judge approves the consent decree
(which may have been modified on the basis of comments), the
consent decree is made final and the remedial plan is implemented.
Although no formal comment period for a proposed consent adminis-
trative order is required by law, it is required as a matter of
F,PA policy (see Section F).
Where negotiations end without an agreement between EPA and
the responsible parties, EPA may then choose among several courses
of action. The Agency may issue unilateral administrative orders
demanding that responsible parties take action, request that the
Department of Justice file a complaint in federal district court
against the responsible parties -- if one previously has not
been filed -- or clean up the site using Superfund Trust Fund
monies and thereafter attempt to recover the costs of the response'
from the responsible parties. In the latter instance, unless
responsible parties agree willingly to pay cost recovery claims,
EPA asks the Department of Justice to file a civil action against
the responsible parties pursuant to CERCLA section 107. Such
cost recovery efforts generally are conducted after a Fund-financed"
response is completed.
-------
OSWER * 9836.0
6-8
B. DEVELOPMENT OF THE COMMUNITY RELATIONS PLAN
It is important to the success of remedial enforcement actions
that the government know the concerns of the local community, and
that the community understand the enforcement process. By identi-
fying and communicating community concerns to enforcement and leaal
staff, the Regional Superfund Community Relations Coordinator can
assist the agency in developing responses acceptable to local
residents. Furthermore, contacts with the local community may
yield important information .about the site or potentially respon-
sible parties. Similarly, the enforcement effort can be enhanced
where the community understands the enforcement process and the
differences between it and Fund-financed actions. Consequently,
the Regional community relations staff must conduct discussions
with the affected community, in the locale of the site, as soon
as possible after the site has been included for enforcement
action in the Superfund Comprehensive Accomplishments Plan (SCAP).
Community relations 'staff must consult with enforcement
staff prior to conducting the community discussions to determine
what is already known about the site, any special cautions that
should be observed in the course of the discussions, and whether
site circumstances make it appropriate for enforcement staff to
-------
6-9
participate. Further, where discussions with the affected commu-
nity provide the Agency with information concerning site condi-
tions or potentially responsible parties, or other relevant
enforcement information, community relations staff must ensure
that this information is provided as soon as possible to enforce-
ment staff.
It also should be noted that circumstances at sites are con-
stantly changing, and the need for enforcement action may arise
suddenly in connection with a site where no enforcement action
had been foreseen. The enforcement staff should keep the commu-
nity relations staff advised of these changes.
Community, relations plans- for enforcement-lead remedial
action sites should be prepared as soon as possible following
the discussions with the affected community. The plan must make
provision for the following major activities, recognizing that
referral of the case to the Department of Justice for•litigation
may occur at any point in the enforcement process and may reouire
the plan to be revised:
(1) public meetings and information dissemination prior to
and during the remedial investigation/feasibility study stage
(see Sections C and D);
(2) public comment on the RI/FS (see Section D);
-------
6-10
(3) preparation of a summary of public comments on the
RI/FS to accompany the draft neaotiations decision document (see
Section D) ;
(4) potential public participation in technical discussions
with potentially responsible parties and government representa-
tives to discuss aspects of site remedy (see Section E);
(5) dissemination of information during negotiations (see
Section F);
(6) preparation of a responsiveness summary of public
comments on the RI/FS to accompany the Enforcement Decision Docu-
ment and the proposed administrative order on consent or proposed
consent decree (see Sections F and G); and '
(7) preparation of a summary of public comments on the
Enforcement Decision Document and the administrative order on
consent or consent decree (see Sections F and G).
In preparing the plan, community relations staff must consult
closely with Regional technical enforcement staff and the Office
of Regional Counsel. Consultation is necessary to ensure that the
scope and timing of community relations activities are consistent
with the likely thrust and schedule of enforcement actions. Before
the plan can be implemented, it must be approved by the chief
official in the Regional Office responsible for technical enforce-
ment and by the Office of Regional Counsel.
-------
6-11
As stated previously, litigation may occur at any point in the
enforcement process. Generally, a case is not referred to the
Department of Justice until after some administrative enforcement
effort has ^een made. Consequently, in most cases, the community
relations plan need not initially include specific provisions for
litiga"tion, except for informing the public of the possibility of
litigation and for describino the litigation process and its poten-
tial effects on the scope of community relations activities. If
the site subseauently is referred for litigation, the plan will
need to be modified accordingly. In those rare instances where
referral for litigation is the initial enforcement action (either
prior to the SCAP or in accordance with the SCAP), the community
relations plan initially must specify activities to be carried
out during the litigation.
Because constraints on what may be revealed publicly or dis-
cussed with the community often will be greater durinq litication
than during administrative enforcement proceedings, plans developed
after referral, and modifications to plans already approved, must
be approved by the Department of Justice. Community relations
staff should consult with the Department of Justice staff attorney
in developing these plans or modifications.
Further, the plan should include provisions for a routine
process through which meetings of community relations staff, the
-------
6-12
site project manager, and technical enforcement and-legal person-
nel are held to coordinate activities and review information to
be released. Because the scope of activity to be carried out
and the nature of information to be disclo-sed depend so greatly
upon particular circumstances, reqular consultation with the
negotiating team/litigation team is essential to avoid activity
or release of information that might be detrimental to the enforce-
ment process.
There will be occasions where disagreement arises as to the
nature and extent of community relations activities to be carried
out. These disagreements may arise within EPA or between EPA and
the Department of Justice. In such cases, effort should be made
to resolve the difficulties at the organizational level at wh'ich
they occur. If resolution cannot be obtained at that level, then
the issue may be raised to succeeding levels of authority. This
may in some cases involve Agency Assistant Administrators
and/or equivalent Department of Justice officials, althouah it
should not be considered desirable or appropriate to seek such
officials' involvement except in unusual circumstances.
-------
OSWER * 9836.0
In some instances it may be appropriate, at the sole
discretion of the Agency, for responsible parties to participate
in aspects of the community relations plan jointly with EPA.
For example, where the responsible party conducts the RI/FS, or
has reached agreement with the Agency for site cleanup, or both,
the responsible party may wish to participate in public meetings
or in the preparation of fact sheets. It may also be appropriate,
at the sole discretion of the Agency, for the responsible party
to participate in implementing the plan during negotiations
where the responsible party is willingly working with the Agency
to come to agreement on site cleanup, although these occasions
may be few. However, the responsibility for development and
implementation of the plan must remain with EPA.
In most instances, the decision regarding responsible party
participation in the community relations plan will be made after
the plan has been developed. As a result, the plan will need to
be modified to reflect the FPA and responsible party roles and
responsibilities. Any modifications must be approved by the
technical enforcement and Regional Counsel offices and, once a
case has been referred, by the Department of Justice.
C. COMMUNITY RELATIONS PRIOR TO THE RI/FS
At the time notice letters are sent, EPA Regional community
relations staff should contact local officials and citizens who
-------
6-14
have expressed concern about site issues to inform them that
enforcement efforts have begun. Staff also should announce the
community relations activities planned to take place with regard
to the site. These actions should serve primarily to provide
information on EPA's understanding of the nature of problems at
the site and on EPA's aeneral enforcement process. In discussina
the community relations activities planned for the site, community
relations staff should point out that some modification in planned
activities likely will be necessary if the site is referred for
litigation. The reasons should be explained to ensure public
understanding of the legitimate constraints that apply in such
ci rcumstances.
In all cases, community relations staff must coordinate- their
activities with technical enforcement and legal staff and the site
project manager to ensure that any releases of information are
reviewed and approved in advance.
D. -COMMUNITY RELATIONS DURING AND UPON COMPLETION OF THE RI/FS
In general, if the case has not been referred to the Depart-
ment of Justice for litiaation, community relations activities
during the remedial investigation and the development of the
feasibility study for enforcement sites should be basically the
same as for Fund-lead sites. Activities for most sites should
-------
6-15
include one or more public meetings and additional "informal meet-
ings with interested citizens to discuss site conditions and
alternative remedial actions under study, and to respond to
questions on these issues. These and other standard activities
conducted in connection with Fund-lead RI/FSs are appropriate
for most enforcement remedial action sites because responsible
party participation in the RI/FS, and in some instances actual
conduct of the RI/FS, are being encouraged as a matter of Aaency
policy. In other words, since the RI/FS process will not Gener-
ally be closed to potentially responsible parties, there generally
should be no bar to full public disclosure and participation.
However, consistent with the Administrator's memorandum of
October 4, 1984, regarding release of draft data and reports,
data from the RI/FS should not be discussed or'released until it
has been through guality assurance and Quality control processes.
Further, there must not be any discussion of Agency preference
toward a particular remedy, the Agency's likely enforcement
strategy, or responsible party attitudes or positions.
If the site has been referred to the Department of Justice
for litigation during the RI/FS, there likely will be constraints
on the scope of community relations activities (see Section G).
Further, if Regional technical enforcement and Regional Counsel
personnel believe that there is a strong possibility that the site
may be referred for litigation to obtain private party site cleanup,
-------
6-16
some limitations also may have to be observed. For example, '
under such circumstances public and informal meetings might he
restricted to providing only information on site conditions and
the status of the feasibility study, avoiding responding to tech-
nical questions or interpreting data. The purpose of this limi-
tation would be to prevent Agency officials or consultants from
being put on record in a way that might bind the Aaency in liti-
gation before all data and information have been gathered.
Once the enforcement PI/FS is completed, "it should be 'made
available for public review and comment in accordance with proce-
dures that apply to Fund-lead sites. The opportunity for review
and comment should include-at least one public meeting to discuss
the RI/FS and to respond to Questions. (See Section G for linuta
tions that may be imposed in those instances where the site has
y
been referred to the Department of Justice for litigation.)
Upon completion of the comment period, a summary of comments
must be prepared to accompany the draft Neaotiations Decision
Document (NDD). The NDD is a document that serves as the basis
2/ In certain cases, court-established deadlines may reguire some
adjustments in timing. For example, a court may require the
government to identify its selected remedy by a date certain, but
delays in the RI/FS may make it impossible to get community comments
before the deadline. If the deadline cannot be extended, then some
adjustment, such as shortening the comment period, will have to be
considered .
-------
6-17
for the Agency to determine the remedy to be sought" with respon-
sible parties. (For details reaarding the NDD and procedures for
its preparation and processing, see the policy memorandum entitled
"Preparation of Decision Documents for Approving Fund-financed
and Responsible Party Remedial Actions," signed February 27, 1985,
by the Acting Assistant Administrator for Solid Waste and Emergency
Response.) Since the Neaotiations Decision Document is enforcement
confidential, it is not subject to public review, and its contents
and recommendations may not be released without the approval of
the Assistant Administrator.
Community relations activities at this point should involve
advising the public that public comments are being taken into account
in the Agency's consideration of remedies/ and that upon completion
of negotiations or litiaation the public will have the additional
opportunity to comment on the proposed remedy (see Sections F and G
and the above-cited policy memorandum). Community relations staff
also should advise the community of the next anticipated steps in
the enforcement process and explain neaotiation or litigation pro-
cedures (as appropriate to the site) through small group briefings,
fact sheets, or brief informational materials deposited in a
local information repository. As with other activities, community
relations staff should consult with and obtain the approval of
appropriate technical enforcement and Regional Counsel personnel
to ensure that enforcement or negotiation positions are not jeopar-
dized. Where the case has been referred for litigation, approval
from the Department of Justice also is necessary.
-------
if 2OJO.U
6-18
E. PUBLIC PARTICIPATION IN TECHNICAL DISCUSSIONS WITH POTENTIALLY
RESPONSIBLE PARTIES AND GOVERNMENT REPRESENTATIVES REGARDING
ASPECTS OF SITE REMEDY
There may be occasions where affected citizens may make
valuable contributions to appropriate site remedy through partici-
pation in technical discussions with potentially responsible
parties and government representatives. These discussions, which
would deal with technical issues, and not Questions of liability
or other issues not relating to remedy, would be conducted separ-
ately from, but contemporaneously with, government/responsible
party remedy negotiations. The purpose would be not only to
facilitate public understanding of the technical issues, but also
to better enable the government and responsible parties to
arrive at a remedy that accommodates public.concerns.
In developing the community relations plan for an enforce-
ment site, consideration should be given to whether such dis-
cussions will be appropriate. In most instances, however, the
final decision cannot be made at this point because circumstances
that would make such discussions appropriate or inappropriate
will not be known. Therefore, the community relations plan should
address only the potential for such discussions, the conditions
under which they might take place, and the criteria for public
participation.
-------
- 30
6-19
The decision on public participation will be made by the
Regional Administrator upon the advice of the Regional Superfund
Community Relations Coordinator, the chief Regional Office
official responsible for technical enforcement, and the Reaional
Counsel. Where the case has been referred for litigation or there
is a likelihood of litigation, the concurrence of the Department
of Justice also must be obtained. (With regard to public partici-
pation in technical discussions for sites that are already in
litigation, see Section G.) The following criteria should be
considered in making the decision:
(1) Has the interested public, including local government
bodies, been able to agree on its representatives (gen-
erally no more than three or four) ;
(2) Does the interested public have technical representation
where the complexity of site issues reauires such repre-
sentation;
(3) Will public participation (a) facilitate understand i nc
of community concerns, and (b) contribute to timely
resolution of technical issues; and
(4) Are the potentially responsible parties willing to
participate in such technical discussions.
F. COMMUNITY RELATIONS DURING AND UPON COMPLETION OF NEGOTIATIONS
The confidentiality of statements made during the course of
negotiations is a well-established principle of our legal system.
Its purpose is to promote a thorough and frank discussion of the
issues between the parties to attempt to resolve differences. It
covers not only limitations on what may be revealed publicly, but
also the understanding that offers and counter-offers made in the
-------
6-20
course of negotiations may not and will not be used-by one party
against the other in any litigation that may follow. Responsible
parties may be unwilling to negotiate if they cannot openly dis-
cuss their differences because they fear public disclosure regard-
ing issues of liability and other sensitive issues which may
damage their potential litigation position or their standing with
the public. This expectation of confidentiality necessarily re-
stricts the type and amount of information that can be made public,
but it can frustrate citizens and community croups in their desire
to know that their interests are being represented and protected.
Some information may be provided to the public/ in many
instances; without causing harm. For example, the identities of
participants, dates of negotiation sessions, and other procedural
information generally may be made public. In addition, informa-
tion concerning technical issues and alternative remedies under
consideration also may be made public in many instances, so long
as the negotiation or litigation positions of the participants
are not. Other information should not be made public. For
example, the attitudes of the parties to the negotiations cannot
be revealed or discussed, nor can there be public speculation by
Agency representatives on the prospects for a successful outcome.
Community relations staff must consult with and obtain the approval
of appropriate technical enforcement and Regional Counsel personnel
before the release of any information regarding negotiations. If
the site is in litigation, or is likely to be referred for liti-
gation, approval of the Department of Justice also must be obtained.
-------
6-21
If a negotiated settlement is reached, it will be embodied
in either a proposed adminstrative order on consent -- to be
issued by EPA — or a proposed consent decree — to be issued by
a court -- that will be made available for a public comment period
of at least 30 days unless special circumstances reauire a shorter
period. (Note: administrative orders for removals are to be
handled differently. See Section I.) If a consent decree is to
be issued, community relations should be handled as described in
Section G of this chapter.
For administrative orders, the consent order will contain
a stipulation that public comments may lead to modifications in
the order. Community relations staff should announce the con-
clusion of .negotiations, the procedures for public comment, and
the availability of the consent order and the Enforcement Decision
Document that will have been prepared by the Peciion and that is
the mechanism for Agency approval of the cleanup. [NOTE: In
accordance with the policy memorandum of February 27, 19R5,
referenced earlier, a responsiveness summary of public comments
on the RI/FS is to be prepared to accompany the Enforcement Deci-
sion Document and will be made available for public review as
part of the EDO.] The announcement should consist of at least a
public notice, a news release to local media, and a notice in the
local repository. The announcement also should explain where
copies of the settlement Documents, order, EDO, and responsiveness
summary may be found (e.g., in the local repository), and where
-------
6-22
comments should be sent. In some cases, community-relations staff
may want to provide personal notification to concerned and directly
affected citizens. Any meetings or briefings planned regardinc
the order also should be announced. Communications to the public
should focus on the technical provisions of the settlement agree-
ment; details of the negotiations, such as the behavior, attitudes,
or legal positions of responsible parties, any compromises incor-
porated in the settlement agreement, and evidence or attorney
work product material developed durina negotiations, must remain
conf idential.
After the close of the comment period, a summary of comments
must be prepared and sent to the appropriate Re.aional official,
who will recommend to the signing official either .that the order
go into effect unchanged or that negotiations he reopened to
consider issues raised by the comments received. If agency
negotiators and resnonsible parties agree to make chances in the
order, the order may be modified. The order aoes into effect
once it is accepted unchanged or modified and subsequently ap-
proved, except that aspects of an order not affected by potential
modifications may be implemented without delay.
G. COMMUNITY RELATIONS DURING AND UPON COMPLETION OF LITIGATION
A case may be referred to the Department of Justice to initi-
ate litigation at any point in the enforcement process. When a
-------
6-23
case is referred, the needs for confidentiality and constraints
on the scope and nature of community relations activities become
greater. If litigation is initiated early in the enforcement
process, the community relations plan for the site may need to
be modified substantially. If it is initiated late in the process,
at the conclusion of unsuccessful negotiations for example, the
plan will require only an addition to accommodate the litigati-ve
process.
Where a case has ^been referred to the Department of Justice,
community relations staff and Aaency enforcement and leaal person-
nel must consult with the lead Department of Justice attorney to
determine the scope of community relations activities to be
carried out. While strona consideration should be qiven to imple-
menting the plan as developed and previously approved, the federal
litiaation process may require changes in the decree of public
disclosure. For example, the court of jurisdiction may have
rules regarding public disclosure. The court may or may not
allow public meetings in the course of developing an PI/FS for a
site in litigation, and similarly may limit public comment on the
completed feasibility study. A court also may place restrictions
on information releases during negotiations or any meetings with
the public to discuss potential site remedy. Moreover, the rules
of ethics governing attorney conduct will have to be satisfied
in all cases. For example, the canons of ethics discourage and
even forbid extra-judicial publicity in certain circumstances.
-------
OSWER s 9836.0'
Where litigation or settlement through administrative nego-
tiations results in a consent decree for si'te cleanup, the consent
decree generally will be made available by the Department of
Justice for a public comment period of at least 30 days (see 28
CFR 50.7(c)). In addition, the Enforcement Decision Document
also will be made available by DOJ for public comment. The
Department of Justice will provide notice of the decree and EDD
in the Federal Register and will receive all comments. However,
community relations staff also should provide notice to the public
of the conclusion of litigation and the procedures for commentina
on the consent decree and EDD. The notice and planned activities
should be the same as for administrative orders on consent, but
must be approved by the Department of Justice in advance. Finally,
responses to public comments are prepared .by DOJ., with assistance |
from Regional technical enforcement and P.eaional Counsel personnel,
and presented to the court for review before the decree becomes
final. Community relations staff should work with appropriate
Regional personnel in developing the responses.
If administrative negotiations do not result in a settlement
agreement and a Fund-financed cleanup is conducted, EPA may initi-
ate litigation to recover the costs of response. Since cost
recovery generally follows site cleanup, community interest in
the site usually will have lessened. Community relations staff,
or other appropriate Regional Office personnel, after coordination
with the Department of Justice, should take the lead in responding
-------
6-25
to inquiries regarding current site conditions. All inquiries
regarding litigation should be forwarded to the EPA cost-recovery
team, which will prepare a response in conjunction with and with
the approval of the Department of Justice.
H. COMMUNITY RELATIONS DURING A RESPONSIBLE PARTY CLEANUP
EPA must maintain responsibility for community relations
during a cleanup managed by responsible parties pursuant to an
administrative order or consent decree. The scope and nature of
community relations activities will be the same as for Fund-lead
cleanups. Where responsible parties have participated in community
relations activities at the site as discussed in Section C, EPA
and responsible party roles already will have been determined.
However, where a responsible party has not been involved in imple-
menting the plan, EPA should continue solely to conduct community
relations activities, unless the responsible party shows sufficient
interest, commitment, and capability to warrant some level of
participation.
I. COMMUNITY RELATIONS DURING REMOVAL ACTIONS
At any time EPA may issue a unilateral administrative order
to compel a responsible party to undertake an immediate removal
or other urgent action, or the Agency may arrive at an agreement
with the PRPs to do the work, which would be embodied in an
-------
6-26
administrative order on consent. In addition, under certain
circumstances, the Agency may refer the action to the Department
of Justice to seek a court order to secure the removal. By
their nature, the situations giving rise to an immediate removal
or other urgent action do not allow for the same level of public
comment. Adjustments to the community relations process must
be made to fit the time constraints. However, once issued, a
unilateral administrative order or administrative order on consent
becomes a public document which should be made available to the
affected community. In addition, community relations staff should
discuss the terms of the order with citizens, local officials,
and the media and describe the removal action. If, however, the
responsible party fails to respond to the order, any statements
or information releases regardinq the status of actions at the
site or prospective EPA actions must first be cleared with
appropriate Regional technical and legal enforcement personnel.
Consent orders for removals normally should be subject to
public review before becoming effective. However, if holding a
comment period for an immediate removal miaht delay implementation
of the order and endanger public health or the environment, this
procedure may be modified. In such instances, community relations
staff should discuss the order with citizens, local officials,
and the media and explain why the need for immediate measures
precludes establishing a formal comment period.
-------
JO . J
-27-
Community rela-tions activities during removals carried out
by responsible parties should be the same as for Fund-financed
removals. Responsible parties may participate^ subject to the
same considerations described above in Section H.
------- |