CERCLA ENFORCEMENT POLICY COMPENDIUM UPDATE
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United States Office of Solid Waste
Environmental Protection and Emergency Response
Agency Office of Waste Programs (OS-510)
v>EPA CERCLA Enforcement
Policy Compendium
Volume
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
JAN 13
MEMORANDUM
SUBJECT: Revised CERCLA Policy Compendi
FROM: Bruce M. Diamond, Director^
Office of Waste Programs Enforcement
Glenn L. Unterberger^Zg^ ^ U~3J*~*~
Associate Enforcement Counsel for -tfaste
Office of Enforcement and Compliance Monitoring
TO: Addressees
Attached is the revised CERCLA Enforcement Policy
Compendium. This docuaent was originally circulated
in February 1984 and revised in May 1985 and August 1986. It
has now been revised to include additional significant policies
published since that date. Also attached is a list of
Procedures, Manuals, Federal Register publications and other
items that are of interest for CERCLA Enforcement. These are
not included in the current Compendium, in order to keep it
down to manageable size.
Because the Compendium will be updated periodically, we
welcome comments on it or on policy issues that might be
addressed in the future. Questions or comments on the contents
of this compendium may be addressed to Carrie Capuco, Office of
Waste Programs Enforcement at FTS-382-7739 (OS-S10).
Attachment
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Addressees:
Directors, Waste Management Division,
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI
Director, Toxic and Waste Management Division,
Region IX
Director, Hazardous Waste Division,
Region X
Regional Counsels, Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
| ^iTZ » WASHINGTON, D.C. 20460
"t>.
MAR 2 4 1989 :« :=
SOLO .'.iS'E AND =•.'•
MEMORANDUM
SUBJECT: Updates for the Enforcement Policy Compendium
FROM: John cross, Chief
Guidance and Oversight Branch
Office of Waste Programs Enforcement
TO: Addressees
Please find enclosed the most recent updated material for
the Enforcement Policy Compendium.
Title Date QSWER Dir. No.
Guidance on CERCLA Section 106 2/24/89 9835.7
Judical Actions
(Reich/Porter)
Interim Guidance on Administrative 3/1/89 9833.3A
Records for Selection of CERCLA
Reponse Actions (Porter)
If you have any questions contact Gloria Bobo on my staff at
(FTS) 475-6770.
Addressees:
Regional Counsels, Regions I-X
CERCLA Enforcement Branch Chiefs, Regions I-X
CERCLA Enforcement Section Chiefs, Regions I-X
Director, Waste Management Division,
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III, VI
Director, Toxic and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
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CERCIA ENFORCEMENT POLICY COMPENDIUM
CHRONOLOGICAL LIST
Policy Date
1. Cost Recovery Referrals 8/3/83
(Sniff)
2. Cost Recovery Actions Under CERCIA 8/26/83
(Price/Thomas)
3. Coordination of EPA and State 8/29/83
Actions in Cost Recovery Negotiations
and Litigation (Prioe/lhaias)
4. Guidance on the Use and Issuance 9/8/83
of Administrative Orders Under
Section 106 [being updated]
(Price/Thomas)
5. Releasing Identities of Potentially 1/26/84
Responsible Parties in Response
Of POIA Requests (Luoero/Snif f)
6. Issuance of Administrative Orders 2/21/84
for Immediate Removal Actions
(Thomas)
7. Guidance Regarding CERCIA 5/24/84
Enforcement Against Bankrupt Parties
(Price)
8. Liability of Corporate Shareholders and 6/13/84
Successor Corporations for Abandoned Sites
under CERCIA (Price)
9. EPA - State Relationship in
Enforcement Actions for Sites
on the NPL (Thorns)
10. Interim CERCIA Settlement Policy
(ThCDas/Price/Habicht} 50 FR 5034
February 5, 1985
11. Guidance on Drafting Consent
Decrees in Hazardous Waste
Cases (Price/McGraw)
10/2/84
12/5/84
5/V85
OSWER Dir. No.
9832.0
9832.1
9832.2
9833.0
9834.0
9833.1
9832.7
9832.10
9831.3
9835.0
9835.2
-------
Policy
12. Snail Cost Recovery Referrals
(Stiehl/Inopro)
13. Preparation of Hazardous Waste
Referrals (Stiehl)
14. Timely Initiation of Responsible
Party Searches, Issuance of
Notice Letters, and Release of
Information (Lucero)
15. Procedural Guidance on Treatment
of Insurers under CERCLA (Price)
16. Endangerment Assessment Guidance
(Porter)
17. Policy for Enforcement Actions
Against Transporters Under CERCLA
(Lucero/Stiehl)
18. Reporting and Exchange of
Information on State Enf or
Actions at National Priorities Sites
(Porter)
19. Revised Hazardous Waste Bankruptcy
Guidance (Mays)
20. Policy on Recovering Indirect Costs
in CERCLA Section 107 Cost Recovery
Actions (Stiehl/Stanton)
21. Interim Guidance: Streamlining
the CERCLA Settlement Decision
Process (Porter/Adams)
22. Interim Guidelines on Preparing
Nonbinding Preliminary
Allocations of Responsibility
(Thomas) 52 FR 19919 May 28, 1987
23. Administrative Records for
Decisions on Selection of CERCLA
Response Actions (Lucero/Longest)
Date
7/12/85
7/30/85
10/9/85
3/14/86
5/23/86
2/12/87
5/16/87
5/29/87
QSWERDir. No.
9832.6
9837.1
9834.2
11/21/85 9834.5
11/22/85 9850.0-1
12/23/85 9829.0
9831.2
9832.8
6/27/86 9832.5
9835.4
9839.1
9833.3
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Policy
24. Entry and Continued Access Under
CERdA (Adams)
25. Cost Recovery Actions/Statute
of Limitations (Lucero)
26. Consent Orders and the Reimburse-
ment Provision Under Section 106(b)
of CERdA (Lucero/Leifer)
27. Interim Guidance on Settlements
with Qs fllini^i? Waste Contributors
(Adams/Porter) 52 FR 24333
June 30, 1987
28. Covenants Not to Sue Under SARA
(Adams/Porter/Habicht) 52 FR
28038 July 27, 1987
29. Interim Guidance on Use of
Administrative Penalty Provisions
Under Sections 109 and 325 (Adams)
30. Scope of the CERdA Petroleum
Exclusion Under Sections 101(14)
and 104(a)(2) (Blake)
31. Guidance on the Use of Stipulated
Penalties in Hazardous Waste Consent
Decrees (Adams)
32. Guidance on Federal Superfund
Liens (Adams)
33. EPA Interim Guidance on Indemni-
fication of Super'gut id Response Action
Contractors (Porter/Kinghorn)
34. Interim Model CERdA Sec. 122 (g) (4)
Waste Contributor
Consent Decree and Administrative
Order Guidance (Reich/Lucero)
52 FR 43393 November 12, 1987
35. Interim Guidance on Notice Letters
Negotiations, and Information
Exchange (Porter) 53 FR 5298
February 23, 1988
Date
6/5/87
6/12/87
6/12/87
6/19/87
7/10/87
7/16/87
7/31/87
9/21/87
9/22/87
10/6/87
10/19/87
05WER Dir. No.
9829.2
9832.9
9833.2
9834.7
9834.8
9841.1
9838.1
9835.2b
9832.12
9835.5
9834.7-1A
10/19/87
9834.10
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Policy
36. Evaluating Mixed Funding Settle-
ments (Porter/Adans) 53 FR 8279
March 14, 1988
37.,Revised Procedures for Inpleraenting
Off-site Response Actions
(Porter)
38. Expansion of Direct Referral of
Casf*s to the Department of
Justice (Adams)
39. Interim Final Guidance Package
on Funding CEHCLA State Enforcement
Actions at NPL Sites (Porter)
40. Interim Guidance on Potentially
Responsible Parties Participation
in Remedial Investigations and
Feasibility Studies (Porter) [Revised]
41. Interin Policy on Mixed Funding
Settlements Involving the Pre Autho-
rization of States or Political
Subdivisions. (Porter/Adams)
42. Supporting State Attorneys General
CERCLA Remedial and Enforcement
Response Activities at NPL Sites
(Longest/Cannon)
43. Guidance on Documenting Decisions not
to Take Cost Recovery Actions (Cannon)
44. Reporting Exemptions for Federally
Permitted Releases of Hazardous
Substances (Ihonas) 53 FR 27268
July 19, 1988
45. Super fund Cost Recovery Strategy
(Portar)
46. Catalog of Superfund Program
Directives — Interim Edition
Date OSWER Dir. No.
10/20/87 9834.9
47. Guidance on Use and Enf or
of CERCIA Information Requests
and Administrative Subpoenas
(Adams)
11/13/87
1/14/88
4/7/88
5/16/88
5/27/88
6/21/88
6/7/88
7/11/88
7/29/88
7/88
8/25/88
9834.11
9891.5A
9831.6a-6d
9835.la
9834.9a
9831.7
9832.11
exesapt
9832.13
9200.7-01
9834.4-A
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Policy
Date
QSWER Dir. No.
48. Waiver of Headquarters Approval
for Issuance of RD/RA Special
Notice Letters at the Time of
ROD Signature (Longest and Diamond)
49. Counting State-lead Enforcement
NPL Sites Toward the CERCLA
Section 116 (e) RffnpriiaH Action
Start Mandate (Porter)
50. Community Relations during
Enforcement Activities and
Development of the Administrative
Record (Porter)
51. Guidance on Premium Payments in
CERCLA Settlements (Adams and Porter)
52. Initiation of FRP-finanosd Remedial
Design in Advance of Consent
Decree Entry (Adams and Porter)
9/26/88
9834.10-la
10/21/88 9831.8
53. Interim Strategy for Enforcement
of Title III and CEROA §103
Notification Requirements
54. CERCLA Enforcement Delegations
11/3/88
11/17 /88
11/18/88
12/14/88
9836. 0-1A
9835.6
9835. 4-2A
9841.0
Executive Order 12316: Responses to
Environmental Damage (46 FR 42237)
Guidelines for Using the Imminent
Hazard. Enforcement and Eoergency
Response Authorities of Super fund
and Other Environmental Statutes
(47 TO 20664)
Request for Public Cccnent on
Interim CERCLA Settlement Policy
(50 TO 5034)
Notification Requirements; Reportable
Quantities Adjustments (50 re 13456)
National oil and Hazardous Substance
Pollution Contingency Plan: Final Rule
(40 ere Part 300)
8/14/81
5/13/82
2/5/85
4/4/85
11/20/85
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Manual
Procedures for Identifying 2/82
Responsible Parties: Uncontrolled
Hazardous Waste Sites - Superfund
(National Enforcement Investigation Center)
RCRft/CERCLA Case Management Handbook 8/84
Procedures for Documenting Cost for 1/35
CERCLA Section 107 Actions
(OWPE)
9834.3
9837.0
9832.4
ted QJdano?
Interim Guidance on Conpliance
with Applicable or Relevant and
Appropriate Requirements
Rl/'FS Improvement
Additional Interim Guidance for
FY 87' Records of Decision
Final Guidance on Use of Alternative
Dispute- Resolution Techniques
in Enforcement Actions
PPP Search Manual,
OSWER Strategy for Management
Oversight of the CERCLA Remedial
Action Start Mandate
DATE
7/9/87
7/23/87
7/24/87
8/14/87
8/27/87
12/28/87
OSWER DIR.No.
9234.0-05
9355.0-20
9355.0-21
9834.12
9834.3-1A
9355.0-24
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CERCLA ENFORCEMENT POLICY COMPENDIUM
TOPICAL LIST
Policy
Date
OSWER Dir. No.
I. PRP Search
A. Timing and procedures
Interim Guidance: Streamlining
the CERCLA Sett-lament Decision
Process (Porter/Adams)
Potentially Responsible
Party Search Manual (Lucero)
B. PEP Search Management
Releasing Identities of Potentially
Responsible Parties in Response
Of FOIA Requests (Lucero/Sniff)
Timely Initiation of Responsible
Party Searches, Issuance of
Notice Letters, and Release of
Information (Luoero)
C. Information Requests
Guidance on Use and Enf 01
nt
of CERCLA Information Requests
and Administrative Subpoenas
(Adams)
II. Negotiations, Settlements, and Oversight
A. General and Special Notice
Interim Guidance on Notice Letters
Negotiations, and Information
Exchange (Porter-) 53 FR 5298
February 23, 1988
Waiver of Headquarters Approval
for Issuance of PD/RA Special
Notice Letters at the Tine of
ROD Signature (Longest and Diamond)
2/12/87
8/27/87
1/26/84
10/9/85
8/25/88
10/19/87
9/26/88
9835.4
9834.3-1A
9834.0
9834.2
9834.4-A
9834.10
9834.10-la
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Policy
Date
OSWER Dir. No.
B. RI/FS Issues
Interim Guidance on Potentially
Responsible Parties Participation
in Remedial Investigations and
Feasibility Studies (Porter) [Revised]
C. Settlement Policy
Interim CERCLA Settlement Policy
(Thonas/Price/Habicht) 50 FR 5034
February 5, 1985
Guidance on Premium Payments in
CERCLA Settlements (Adams and Porter)
Initiation of PRF-financed Remedial
Design in Admance of Consent
Decree Entry (Adams and Porter)
D. Liability
Liability of Corporate Shareholders and
Successor Corporations for Abandoned Sites
Under CERCLA (Price)
Policy for Enforcement Actions
Against Transporters Under CERCLA
(Lucero/Stiehl)
Scope of the CERCLA Petroleum
Exclusion Under Sections 101(14)
and 104(a)(2) (Blake)
E. Consent
Procedures
Guidance on Drafting Consent
in H*y*"nry«>Q waste
(Price/MoGraw)
Guidance on the Use of Stipulated
Penalties in Hazardous Waste Consent
Decrees (Adams)
Covenants Not to Sue Under SARA
(Adams/Porter/Habicht) 52 FR
28038 July 27, 1987
5/16/88
12/5/84
11/17/88
11/18/88
6/13/84
12/23/85
7/31/87
5/V85
9/21/87
7/10/87
9835.la
9835.0
9835.6
9835.4-2A
9832.10
9829.0
9838.1
9835.2
9835.2b
9834.8
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Policy
F. Mixed Funding
Evaluating Mixed Funding Settle-
ments (Porter/Adams) 53 FR 8279
March 14, 1988
Interim Policy on Mixed Funding
Settlements Involving the Pre Autho-
rization of States or Political
Subdivisions. (Porter/Adams)
G.
Interim Guidance on Settlements
with Dj minimis Waste Contributors
(Adams/Porter) 52 FR 24333
June 30, 1987
Interim Model CERCLA Sec. 122 (g) (4)
De-Minimis Waste Contributor
Consent Decree and Administrative
Order Guidance (Reich/Lucero)
52 FR 43393 November 12, 1987
H. Guidelines on Preparing NBARs
Interim Guidelines on Preparing
Nonbinding Preliminary
Allocations of Responsibility
(Thomas) 52 FR 19919 May 28, 1987
Date
QSWER Dir. No.
10/20/87 9834.9
5/27/88
6/19/87
9834.9a
9834.7
10/19/87 9834.7-1A
5/16/87 9839.1
III. Section 106
A. Administrative Orders
Guidance on the Use and Issuance
of Administrative Orders Under
Section 106 [being updated]
(Price/Thomas)
Issuance of Administrative Orders
for Immediate Removal Actions
(Thomas)
6*
Endangerment Assessment Guidance
(Porter)
9/8/83
2/21/84
9833.0
9833.1
11/22/85 9850.0-1
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Bslicy
C. 106(b) Reimbursement
Consent Orders and the Reimburse-
ment Provision Under Section 106(b)
of CZRCLA (Lucero/Leifer)
IV. Cost Recovery
A. Cost Recovery Guidance
Cost Recovery Actions under CERCLA
(Price/Thomas)
B. Procedures for Documenting Cost
Preparation of Hazardous Waste
Referrals (Stiehl)
C. Cost Recovery Strategy
Superfund Cost Recovery Strategy
(Porter)
D. General Cost Recovery
Cost Recovery Referrals
(Sniff)
Expansion of Direct Referral of
Cases to the Department of
Justice (Adams)
Coordination of EPA and State
Actions in Cost Recovery Negotiations
and Litigation (Price/Thomas)
Guidance Regarding CTOCIA
Enforcement Against Bankrupt Parties
(Price)
Small Cost Recovery Referrals
(Stiehl/Iucero)
Revised Hazardous Waste Bankruptcy
Guidance (Mays)
Policy on Recovering Indirect Costs
in CERCLA Section 107 Cost Recovery
Actions (Stiehl/Stanton)
Date
6/12/87
OSWER Dir. No.
9833.2
8/26/83
7/30/85
7/29/88
8/3/83
1/14/88
8/29/83
5/24/84
7/12/85
9832.1
9837.1
9832.13
9832.0
9891.5A
9832.2
9832.7
9832.6
5/23/86 9832.8
6/27/86 9832.5
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V.
Policy
Cost Recovery Actions/Statute
of Limitations (Lucero)
Guidance on Documenting Decisions not
to Take Cost Recovery Actions (Cannon)
State Issues
A. Funding State Enforcement Actions
Interim Final Guidance Package
on Funding CERCLA State Enforcement
Actions at NFL Sites (Porter)
B. Counting State-lead Enforcement
Counting State-lead Enforcement
NFL Sites Toward the CERCLA
Section 116(e) Rpmprlial Action
Start Mandate (Porter)
C. General State Guidance
EPA - State Relationship in
Enforcement Actions for Sites
on the NFL (Thomas)
Reporting and Exchange of
Information on State Enforceme
art1
Actions at National Priorities Sites
(Porter)
Supporting State Attorneys General
CERCLA Rniy Hnl and Enforcement
Response Activities at NFL Sites
(LongesVCannon)
vi. Other Guidance
A. Administrative Record
Administrative Records for
Decisions on Selection of CERCLA
Response Actions (Lucero/Longest)
Date OSWER Dir. No.
6/12/87 9832.9
6/7/88
4/7/88
10/2/84
3/14/86
6/21/88
5/29/87
9832.11
9831.6a-6d
10/21/88 9831.8
9831.3
9831.2
9831.7
9833.3
B. Contaonity Relations
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Policy
Interim Guidance on Onrnimity
Relations in Enforceroent
(MaGraw) [being updated]
Qamunity Relations during
Enforcement Activities and
Development of the Administrative
Record (Porter)
C. Entry and Access
Entry and Continued Access Under
CERCLA (Adams)
D. Insurance and Indemnification
Procedural Guidance on Treatment
of Insurers under CERCLA (Price)
EPA Interim Guidance on Indemni-
fication of Super fur xl Response Action
Contractors (Porter/Kinghorn)
£. -Federal Liens
Guidance on Federal Superfund
Liens (Adams)
F. Off-Site Policy
Revised Procedures for Implementing
Off-site Response Actions
(Porter)
G. P
Guidances
Catalog of Superfund. Program
Directives — Interim Edition
Interim Guidance on Use of
Administrative Penalty Provisions
Under Sections 109 and 325 (Adams)
H. Title III
Interim Strategy for Enforce
of Title III and CERCLA §103
Notification Requirements
Date OSWER Dir. No.
3/22/85 9836.0
11/3/88
6/5/87
10/6/87
9/22/87
11/13/87
7/88
7/16/87
12/14/88
9836.0-1A
9829.2
11/21/85 9834.5
9835.5
9832.12
9834.11
9200.7-01
9841.1
9841.0
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Policy
I. Releases
Reporting Exemptions for Federally
Permitted Tteia*«M»g of Hazardous
Substances (Thomas) 53 FR 27268
July 19, 1988
J. Delegations
CERCIA Enforcement Delegations
Date
7/11/88
OSWER Dir. No.
exempt
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« 9832.0
« UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. DC !»*»»
3AL/G 1S83
SUBJECT: Coat Recovery Referral*
FROM: Kirk F. Sniff ^U+b* i*^ .<<
Acting Associate Enforcement Counsel f
TO: Regional Counsels,
Regions 1-X
Recently, you provided ay office with projection! of
hazardous vasce civil referrals to Headquarteri through the
recainder of Ti 1983. Included in the projected total of 27
referrals were 19 cost recovery referrals. Nearly all of
these actions would involve recover? of coiti associated
with immediate removals.
On July 27, 1983, we met with the Department of Justice to
discuss the most appropriate means for managing these expected
referrals. In light of our continuing difficulties with cost
documentation for existing referrals and actions, we agreed to
two basic rules for handling the anticipated $107
referrals:
1. OEC-Waste will only accept referrals which include
appropriate cost documentation. If documentation is
inadequate, the referrals will be returned to the
Regions for further development. To assist you in
Assessing the adequacy of your referral, 1 refer you
to the draft guidance, "Cost Recovery Actions Under
C£RGU," which was distributed to Che Regional Division
Directors at their national meeting on May 11 and 12,
1983, and to the attached document entitled "Partial
List of Docvsant* Keeded to Support Coat Recovery." I
atrongly recommend that you include copies of the sup-
porting docunents ia Che referral package. If for
•oa* reason this is not possible, the referral package
should clearly identify Che specific documents which
support your claims. Ultimately, this documentation
vill have to be provided to DOJ. If you have questions
regarding documentation in your specific eases, pl*»s«
contact the appropriate Regional coordinator in my
office.
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I
5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. DC 10440
SUBJECT: Cost Recovery Referrals
/*
FROM: KirV F. 0-Sr.iff
Act.Lna,vffs"scciate Enforcement Counsel for Waste
On August 2, 1553, I issued a memorandum staring several
general policies regarding the processing oj: referrals under
51 07 of CZSCLA. Since that ciae, a nunber of y.au have raised
questions regarding 37 menorandua. This is -intended to provide
further clarif icaricr.'.
1. The oeaorancus stares chat if, for some reason,
the Regions have -not included copies of supporting docusentaticr.
in the referral pac^.-.^e, che -referral should clearly identify
che specific donaencs which support che claims . This
idencif icacion should be in che fora of a specific inventory
of che supporting docuoencs, indicacing che identity , Iccaticr.
and custodian of che docuaencs. A general averment' chat
docjiaencaricn is "available" will noc -suffice.
2. The aeaorandua staces chac DCJ will only file
chose cose recovery claias for which che re— is adequate docu-
mentation. However, there may be cases where those claiss
which can be prosecuced immediately are noc substantial vhen
compared with che cocal pocencial accion. For example, if che
Region refers a case seeking recovery of $200,000 but can only
document $8,000, che Headcuarters attorney should seriously
consider declining the referral until further documentation
is provided. This decision is case-specific. However, as a
general guide, you should consider whether the documented case
is sufficient to stand on its own. Of course, in caking your
recommendation you should also consider other important factors
such as the Statute of Limitations, or the need to make a
Tocf if <•
I hope this answers some of your questions. If you have
ocher questions please feel free co raise then.
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OSNER » 9832.C
PARTIAL LIST OF DOCUMENTS NESDE3 TO SUPPORT COS? RECDVt*Y
1. Total Payroll expenditures for attorneys, with supporting
tin* cards and tine sheets
2. Total payroll expenditures for technical personnel,
with supporting time cards and tine sheets
3. Total expenditures for travel for attorneys, with
supporting authorizations and vouchers.
4. Total expenditures for travel ,for technical personnel,
with supporting authorizations and vouchers.
5. For FIT contract expenditures: affidavit by contractor
describing work done, hours spent, hourly cost, overhead
calculations -and total cost; vouchers from contractor to
EPA requesting payment; Agency records showing authorization
for Treasury to pay contractor
6. For National Lab Contract expenditures: contractor
summary of samples taken at site and distributed to laos
for analysis, individual and total cost of sample analyses,
contractor overhead costs, name of lab conducting analyses,
sample numbers, invoice numbers, total costs, copies of
all invoices (types I and II), copies of bills from lab
to contractor and froa contractor to EPA if "SA5" samples;
affidavit frore EPA official verifying contents of contractor
summary; copy of Agency's authorization for Treasury to
pay contractor; vouchers from contractor to Agency
requesting payment.
"7. For expenditures by Regional Lab or ORO (e.g., aerial
photography): affidavit showing nature of work and total
cost* invoices, record of payment.
I. For immediate removals: contractor invoices certified
by OSCj record of authorization for Treasury to pay
contractor; daily contractor cost reports (rough and final};
daily verification of work and costs by OSC.
9. Documentation of expenditures by TAT and any other
contractors used, expenditures by other agencies,
expenditures by State under Superfund contract or
cooperative agreement.
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OSWER * 9832.1
COST RECOVERY ACTIONS
UNDER TEE
COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT OF 1980
(TERCLA)
-------
OSWER * 9832.1
COST RECOVERY ACTIONS WCSR CERCLA
TABLE Of CONTENTS
1. Introduction 1
II. Assembling A Cost Recovery Action 3
III. Elements of • Cost Recovery Action 4
A. Evidence of Release or Substantial Thrtat
of Release of a Hazardous Substance 6
1. Evidence of Responsibility of Defendants) ... 9
C. Evidence that Reaoval or Remedial Action
Taken by U.S. or State it; Mot Inconsistent
With the National Contingency Plan 11
D. Proof of Costs of Removal or Remedial
Action by the O.S. or a State 13
IV. Procedural Issues ...... 16
A. Timing of the Cost Recovery Action 16
B. Statute of Limitations 17
C. Extent of Liability of Responsible Action ... 18
0. The Demand Letter 20
E. Procedure in Event of Response
To Demand Letter ...... 22
1. Negotiating Teams and Procedures 23
2. Form of Settlement Agreement . 26
F. Procedure In Event of
No Response to Demand Letter 27
G. Maintenance and Coordination cf
Evidence In Event of Referral 29
V. Note on Purposes and Oat of This Memorandum 31
Appendix A (Costa Recoverable Under CERCLA)
Appendix B (Model Demand Letter)
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Appendix C (List of Documents)
Appendix D (Model Cost Recovery Plan)
Appendix E (Regional Super-fund File Structure)
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"ei*'v, OSWER * 9832.1
i. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON OC 204*0
AUG 261983
MEMORANDUM
SUBJECT: Guidance on Pursuing Cost Recovery
Actions Under CERCLA
FROM: Courtney M. Price _
fsbeeialCounsel for Enforcement
,ee H. Thomas
Assistant Administrator for
Solid Waste and Emergency Response
TO: Enforcement Counsel
Regional Administrators
Regional Counsels
Associate Enforcement Counsel-Waste Division
Regional Superfund Coordinators
Air and Hazardous Substance Division Directors.
Environmental Services Directors
I. INTRODUCTION
Section 107 of the Comprehensive Environmental Response.
Compensation and Liability Act (CERCLA) provides generally that
past and present owners and operators of a site, and generators
and transporters who contributed hazardous substances to a Rite,
shall be liable (with certain limitations to be discussed herein)
for all costs of removal or remedial action undertaken by the U.S.
government, a State, or any other person* and for damages to or
loss of natural resources.
While it is highly desirable to obtain removal and remedial
action in the first instance by responsible parties; rather
than by the Environmental Protection Agency (EPA) or a State,
there are and will continue to be many eases in which the Agency
will authorize the use of CFRCLA funds from the Hazardous Substance
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OSWER * 9832.1'
-2-
Response Trust Fund (the Fund) established by CERCLA for these
actions, and thereafter attempt to recover those costs from the
party or parties who are liable under Section 107 of the Act and
other authorities.
Due to thn possibility of cost recovery efforts in any case
in which CERCLA funds are expended, the observation, documentation
and preservation of critical facts and response costs is important
to assure that:
• potential evidence concerning the site ,!/ and responsible
parties is noted and documented before response activity
or the passage of time obscures or eliminates it;
* physical evidence essential at trial is collected and
preserved appropriately: and
* sufficient evidence of total costs and claims paid from the
Fund has been maintained and is available to support recovery
by the government.
This memorandum describes essential elements which the
government will probably be called upon to prove in a cost
recovery action; the assembly and maintenance of a file: some
examples of appropriate documentation for each element of the
cause of action; procedures for processing and negotiating cost
recovery claims; and the mechanics of repayment of any recovery to
the Fund. This guidance must be observed by EPA employees, con-
tractors, and, where appropriate* employees of State agencies
working on a site on which CERCLA funds are expended under an
T7?he word 'lite1 as used herein applies to any location where a
release or spill has occurred, and maybe used interchangeably with
•facility' as defined in CF.RCLA $101(9).
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"3" OSWEB ) 9832.1
EPA-State cooperative agreement, in every situation in which CERCLA
funds art expended for site clean up, since each of these sites
the subject cf a potential cost recovery action. The Office of
Waste Programs Enforcement is preparing an additional cost docu-
awntation guidance; please contact Liboy Scopino (382-4482) for
assistance.
II. ASSEMBLING A COST RECOVERY ACTION
The assembly of evidence for a cost recovery action begins
with the first response action taken under Section 104 of CERCLA.
The filing of a cost recovery action should be presumed; accordingly
the collection of relevant documentation is important. Generally,
the government will pursue a cost recovery action when there is a
solvent responsible party'.2/ Where other government action against
the responsible party is contemplated-or pending, such as a judi-
cial action under Section 7003 of RCRA or Section 106 of CERCLA tc
compel remedial measures at a site, a cost recovery count under
Section 107 of CERCLA for removal or remedial costs can be added
to the ongoing litigation.
The Regional Program office has the responsibility of
collecting and maintaining the documents used as evidence in
cost recovery actionsi In Batter* which require legal opinions
(such as the legal right of the Agency to enter a facility) or the
preparation of legal documents, the- program office should consult
with and obtain the assistance of the Regional attorney or the
appropriate Headquarters attorney.
2/ For a discussion of the factors to be considered in determining
whether to file a cost recovery action, see Part IV.F.
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OSWER I 9832.1
-4-
III. ELEMENTS OF A COS? RECOVERY ACTION
Under Stction 104 of CERCLA, the U.S. or its authorized
representative may take removal or remedial action at a site
when, inter a1ia, any hazardous substance is released or there
is a substantial threat of such a release into the environment,
unless EPA determines that such action will be done properly
by the owner or operator or by any other responsible party.
The government may pursue an action under 5107(a) for (1)
costs of removal or remedial action incurred by the U.S. not
inconsistent with the National Contingency Plan (NCF), or
(2) claims paid by the Fund for costs of response incurred
by a state not inconsistent with the NCP, or by other parties
not inconsistent with the MCP.2/ Section 104(b) also authorizes
the recovery of costs- of sampling, analysis, monitoring and
surveying programs, and certain other costs, including those
3/ There may also be a claim Bade by trustees under Section
T07(a)(4)(e) of CERCLA for damage to or lots of natural resources.
However, until regulations for assessment of natural resource
damages or destruction arc promulgated pursuant to Section 3CKO
of the Act, claims for such damages will be assessed on a case-by-case
basis. The best records available on those damages should be
maintained until specific guidance is developed on that subject.
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-S- OSHER I 9832.1
for planning, legal and engineering services.4/
Therefore, to successfully pursue * cost recovery action, EPA
should be prepared to introduce evidence demonstrating:
1. release of a hazardous substance or the substantial threat
of such a release; and
2. the responsibility of the defendants); and
3(a), removal or remedial actions taken by the U.S. or the
State which were not inconsistent with the NCP 5/; and/or
4. the costs of action taken by the U.S.. a State, or
any other person.
The financial condition of a -responsible party is not an
essential element of proof of the cause of action.<6/ Even so, the
financial condition of the responsible parties nay be considered
in determining the feasibility of a cost'recovery action.
4/ roc a'list of costs which art recoverable under CERCLA, see
Xppendix A.
5/ Although Agency policy is to-maintain evidence that its
response activities are not inconsistent with the NCP, the Agency takes
the position that the defendant has the burden of proof on this issue.
€/ While we do not believe that it is necessary to introduce
evidence that removal and remedial action would not have been
done properly by the owner or operator of a facility or by any
other responsible party, it would be prudent to have available
•videnec of efforts by the Agency to obtain private party response
action at the sit*. The notice letters forwarded by the Agency
to potentially rtsponsiblt parties and their responses arc
exanples of such evidence.
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-6- QSWER * 9832.1
The chief elements of • cost recovery action and the
nature of evidence required to sustain then are discussed below.
A. Evidence of Release or Substantial Threat of Release
of a' Hazardous Substance
A release of a hazardous substance or the substantial threat
of such release from a facility Bust be shown. The tern 'hazardous
substance* includes inter alia, any material designated as hazardous
or toxic under the Clean Water Act, Toxic Substance Control Act,
or the Clean Air Act or designated as a hazardous waste under RCRA
(see 40 CFR 302). The definition should be consulted since it
does not include every pollutant or contaminant."]_/
Appropriate documentation of evidence of a release or sub-
stantial threat of release includes field notes, photographs of
the scene, statements from witnesses, statements from owners or
operators, follow-up -narrative reports or memoranda describing the
scene or observations first hand, samples of air, soil, water or
leachate discharge and laboratory analyses of the samples. Evidence
7/ Section 104(a) of the Act authorizes the President (or his
d"esigne<»l to take response action whenever there is a release or
threat thereof of a hazardous substance, or whenever there is a
release or substantial threat of a release of 'any pollutant or
contaminant which Bay present an imminent and substantial endanger-
•ent to the public health or welfare...". However, Section 107
refers only to liability of owners, operators, transporters and
generators for costs incurred in responding to releases or threats
of releases of "hazardous substances'. Zt is not clear whether
those persons nay also be liable under 1107 for costs incurred in
responding to releases or threats of releases of any pollutant or
contaminant which is not a defined hazardous substance, but which
may present an imminent anrf substantial endangerment. The government
intends to hold such persons liable for those costs under both section
107 of CERCLA and the common law theory of restitution.
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-7- OSWER * 9832.1
collected must be sufficient to demonstrate this aspect of the
case.
There are three important considerations her*.
First, samples, records of the owner/operator, or other
evidence sufficient to establish the identity of hazardous sub-
stances involved should be collected.
Procedures similar or identical to those used by the National
Enforcement Investigations Center (NEIC) £/ should be followed, as
should the requirements of Section 104(e) (1)(B), which provides
for furnishing a receipt to the owner/operater for any samples
taken rand a split sample, if requested). Observance of chain-of-
custody procedures is necessary to demonstrate at trial that
samples analyzed as hazardous substances did. in fact, -originate
at the site.
Collecting more data and documentation about, sites than is
reasonably necessary may increase total response costs to an
unduly high level and delay clean-up activities and cost recovery.
The number of samples collected is primarily a matter within the
judgment of the Regional and Headquarters Superfund Offices, anrf
will necessarily depend to a great extent on the site and the
affected areas of the environment. These Offices should consult
with the Regional Counsel prior to collecting samples. However,
the Agency should generally collect only enough samples to determine
(1) that a hazardous substance is present on the site; (2) that a
8/ NEXC Policies and Procedures Manual, May, 1978 (rev., Dec.
1981), EPA Document No. 330-9-78-001-R.
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-8-
OSWR I 9832.1
release of the hazardous substance is substantially thrtattn«d or
has occurred: and (3} what response is appropriate. Only unusual
circumstances (e.g. , to satisfy doubts over validity >f previous
samples, to determine whether concentrations of hazardous substances
are increasing, etc.) would justify incurring significant additional
costs for any additional sampling and analysis.
Samples should b« tahen in accordance with EPA-approved
protocols and procedures developed by NEIC and contained in its
Policies and Procedures Manual referred to above or similar
procedures.
Second, collection of this evidence should begin immediately
upon the start of any investigation into whether some response
activity (including sampling and surveying) may be needed at the
site in response to a release or threat of release. Passage of
time or deliberate interference by other parties may literally
destroy the evidence. Similarly, a long delay between the initial
observation and the trial, or the initial observation and the .
recordation of that observation/ will m*Xe testimony by witnesses
about the site more difficult. Photographs of the scene before,
during and after the response action are frequently helpful in
preparing witnesses to testify, and in providing a visual record
to the Court of conditions that prompted the response activity.
Field notebooks and the results of laboratory analysis are
critical in showing the conditions that existed at the site and
establishing a potential link to the defendant. Sampling and
analysis should be conducted with particular concern for accuracy,
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_9_ OSHER 19832.1
detail, completeness and quality, since these documents are likely
to be subject to close scrutiny by responsible parties and the
court. The NEIC has developed inspection and analysis procedures
to assure high quality evidence and documentation for trial.
Observance of NEIC procedures assures a consistently high quality
of evidence, and should be followed by EPA employees, other federal
agencies, contractors, and State agencies which have entered into
an EPA cooperative agreement for response using CEXCLA funds.
Third, for ease of assembling the ease and presenting it for
trial, the following people should be identified by name, relevant
qualifications or connection to the case, and information about
how to contact them in the future: 1) persons who participated
in the site inspection, sampling, analysis or photography; 2)
persons who may have historic or current information from personal
observation, 3) people who gave or refused to give, statements.
B. Evidence of Responsibility of Defendant(s)
Zn most cases, the liability of defendants will be demonstrated
by establishing the elements in subsections (i)-(4) of <107(a).
EPA personnel have a variety of techniques to gather evidence
connecting the hazardous substance vith the potentially responsible
party or parties. For example, a deed or lease evidences the
responsibility of owner or operator of the site. Less formal
evidence can also be helpful in tracing responsiblity. The operator's
presence at the site ever a period of time will usually be noted
by'employees, neighbors, law enforcement officers, competitors or
others close to or interested in such activities. Those observations
should be recorded in signed statements or affidavits. Zn addition,
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-10- OSSER t 9832.1
the activities of operators of * site may require a license or
permit under State or local laws and regulations. The appropriate
agencies should be consulted to determine whether they ha>/e any
record of activities by an operator of the site.
The problem of linking a transporter or generator of a hazardous
substance to a site is frequently a acre difficult undertaking.
The following detection sources may prove fruitful. Often, operators,
generators, and transporters have records of business transactions.
Drums located on-site may bear labels or markings with the name of
a generator; -these drums or labels should be preserved, if possible.
or photographed, and the photographs laSeled for identification
and future use as possible evidence. Under certain circumstances
the case development team may decide to perform a che.mical analysis
of the waste to assist in establishing the similarity between.the
wastes and a particular company's process.9/ (Information regarding
parties and sites may also be obtained by use of letters issued
un-der authority of RCRA Section 3007 and CERCLA Section 104U)).
Again, local residents, law enforcement officials or compe-
titors nay be sources of information on transporters of material
to the site or in the general vicinity. Employees or former
employees of a generator or transporter nay he willing to discuss
the disposal practices of their employers, and if so, signed
statements or affidavits, if possible* should be obtained from,
them.
9/ Information on the composition of waste streams associated
with various industrial processes may be obtained from the Hazardous
and Industrial Waste Division (WH-565), Office of Solid Waste, U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington* D.C.
20460.
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"11" OSCR f 9832.1
C. Evidence That Removal or Remedial Action Taken By the D,S or
State Is Net Inconsistent With The National Contingency Plan
Pursuant to Section 104 of CERCLA, after information is
gathered that a release has occurred or is threatened, a variety
of actions may be taken by EPA or a State. Among those actions
are:
(i) Investigations, monitoring, surveys, testing and other
information gathering as may be necessary and appropriate to identify
the existence and extent of the release or threat thereof, the
amount, source and nature of the hazardous substances, and the
extent of danger to public health, welfare or the environment. In
addition, such planning, legal, fiscal, economic, engineering.
architectural and other studies or investigations may be undertaken
as necessary and appropriate to plan and direct response action;
(ii) 'Removal actions", as the term is defined in Section
101(23) of CERCLA, and which'includes, without limitation, security.
fencing, provision of alternative temporary water supplies, ant4
temporary evacuation and housing of threatened individuals. In
addition, EPA may take such other action as say be necessary
to prevent, minimize or mitigate damage to public health, welfare
or the environment, such as removal of materraIs, temporary diking
and other easily accomplished actions; and
(iii) 'Remedial actions'* as the term is defined in Section
101(24) of CIRCLA, including installation of * clay cover, dredging
or excavations, collection of leaehatt and runoff, on-site storage,
treatment or incineration, provision of alternative water supply
and clean-up of released hazardous substances. Subject to some
restrictions, it may also include permanent relocation of residents
and business and community facilities, and off-site transportation,
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OSKER « 9832.1
Storage• treatment or disposal of hazardous substances.
In a cost recovery action, two factors art important in the
development and preservation of evidence regarding the appropriate-
ness of the action taken by EPA or the state. These factors are:
A. The action was not outside what CERCLA allows.
B. The action taken must be "not inconsistent* with the NCP.
Therefore, the NCP should be referred to and all persons involved in
the decision-making process should be faoiliar with its requirements
and limitations before decisions regarding actions are Bade ID/.
Those decisions should be documented by notes, memoranda, letters
and other written records maintained in the appropriate files.
Under the NCP, remedial actions must also be shown to provide
a cost-effective response. A cost-effective remedy is one which,
among the alternatives examined, is least costly but technologically
feasible, reliable and adequately protects public health anc* the
environment. Zn addition, under the Section 104 (c)(4) balancing
test, the Agency should document remedial actions to refute any
claims that the remedy was not cost-effective. Measures of cost-
effectiveness includes the protection afforded public health,
welfare and the environment by the remedy. Zn 'immediate removal'
actions it will be especially important to document the circumstances
which justify the netd for immediate action. As provided in. section
300.65 of the National Contingency Plan, an immediate removal is
appropriate when the lead Agency determines tftat the initiation
of immediate removal action will prevent or mitigate 'immediate
risk of harm to human life or health.
10/ The National Contingency Plan is published in 40 CFR Part 300,
47 Fed. Reg. 31180 (July 16, 1962).
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-13-
OSWER 19832.1
Immediate removals arc appropriate in such situations ««-. D
human, animal, or food chain exposure to acutely toxic substances
2) contamination of a drinXing water supply; 3) fire ancVor
explosion; or 4) similarly acute situations.
Evidence of the cost-effectiveness of a particular remedial
action may be demonstrated by tr.~ .ollowing evidence which is
contained in summary form in the record of decision:
• studies showing the'technical feasibility and probable
cost of alternative remedial actions on the particular
site;
• information that shows the degree of risk to public health,
welfare and environment presented by the particular site
(i.e., population threatened, media affected, toxicity of
the hazardous substance involved* etc.);
• other documentation generated in consideration of the
various factors required by Section 300.68 of the NCP.
All such evidence should be documented by written studies,
reports, letters, memoranda, notes/ minutes of meetings and any
other record of the relevant bases for talcing a particular remedial
action.
D. Proof of Costs of Removal or Remedial Action by the D.s.
or a State
Collecting evidence of costs of removal or remedial action
taken on a site is likely to be a time consuming task. Documents
must be obtained from a variety of participants in the cleanup
activity: agencies, contractors, and others. The success of
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'14' OSWER | 9832.1
government cost recovtry actions depends upon the use of good
bookkeeping and record collection techniques.
Certain costs expended on removal and remedial action are not
recoverable. For example, no recovery under CERCLA is permitted
where response costs resulted from application of a FIFRA-registered
product (see Section 107(i)). or from a Federally-permitted release
(see Section 107 (j)K In borderline cases, it should be assumed
that removal and remedial action costs are recoverable and records
developed and maintained with this expectation.
A variety of mechanisms are available tot tracking costs.
While EPA prefers the uniformity of a single accounting system,
the particular method of accounting Day vary if it ensures accurate
record keeping and preservation of all costs attributable to a
particular site. To further this objective, cooperative agree-"
ments between EPA and a State, or contracts between. EPA and. a
contractor for performance of response activity on a site, should
specifically require that accounting procedures used by the State
or contractor be approved by EPA.
An accounting and expense-tracking system is already in
place at EPA, and should be followed closely by all EPA personnel,
contractors and State agency personnel working on CERCLA-funded
sites. This system generally involves the .assignment of a unique
accounting number to each specific site, and the charging of time.
material and other expenditures to that account number. The site
number is assigned by Headquarters based on a request from the
Regional Office and confirmation of an approved Federal response.
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"15~ OSER t 9832.1
In addition, activity codes have been devised under which different
activities and phases of site clean-up and remedial action may be
described. Questions regarding the specifics of these accounting
procedures should be directed to the Financial Management Center
in the Offick of Emergency and Remedial Response (FTS 382-2208).
Evidence of the cleanup costs should be preserved and avail-
able for introduction into evidence. This could include such
documentation as receipts for money paid for goods or services;
cancelled checks; contracts and any amendments thereof; purchase
orders; invoices; records of time spent, where the claim includes
the value of such time; travel records and vouchers; and records
of all correspondence or other communication regarding the actual
costs, as well as progress reports on the work performed. The
names, addresses and telephone numbers of all persons maintaining
the regular business records of contractors, agencies or persons
outside EPA should also be maintained for ready reference, ll/
U/ The Emergency Response Division of the Office of Solid Waste
and Emergency Response of EPA is developing a field manual entitled
•Cost Control Management for Superfund Removal" for immediate and •
planned removal action*. This manual presents a management system
for On-Scene Coordinators for controlling, verifying, and documenting
all costs incurred in a removal action.
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0»ER « 9832.1
IV. PROCEDCaAL ISSUES
A. Timing of the Cost Recovery Proceeding
While the Office of Waste Programs Enforcement will work with
the Regional Program Office in setting priorities for cost recovery,
the following basic timing guidelines are offered. Cost recovery
actions for expenses incurred in immediate or planned removals
will normally not be initiated until after such response activity
has been completed, since the time required for those activities
is relatively short. However., a cost recovery action need not be
delayed where the Agency establishes a multiphase response action
(e.g., surface clean up, groundwater clean up). A cost recovery
action can begin before completion of the last phase of response
activity for costs expended to date and also for calculable future
cos ts.
Where one stage of cleanup follows another in fairly rapid suc-
cession, cost recovery actions should be initiated after the cleanup
is fully completed. Zn situations where there are substantial delays
between phases, however, the Agency may decide to commence a recovery
action at an intermediate stage. Zn these instances, negotiations
regarding recovery of expenditures may be combined with discussions
with responsibile parties over prospective cleanup activities.
Generally, an action will not be filed for recovery of a remedial
investigation/feasibility study or the cost of design prior to the
filing of an action for recovery of construction costs.
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"17~ 9832.1
B. Statute cf Limitation!
CERCLA does net contain a time limitation provision within
which a cost recovery action must be brought. In the absence of
a specific statutory provision, the federal statute of limitation
would apply. There is some doubt at this time as to precisely
which limitation period will be applied to a cost recovery action.
Limitations for actions brought by the Onited States for money
damages are contained in 28 DSC Section 2415, which distinguishes
between actions based in tort or in contract. Because cost
recovery actions are essentially quasi-contractual .actions in
the nature of restitution, a six yeafc statute of limitations if
any, should apply. However, since it is possible that a court
may see CERCLA actions arising'out of the tortious conduct of
others, cost recovery actions should be brought within three
years after the right of action accrues.
The date the cause of action accrues is also subject
to debate. In United States v. The Barge Shamrock et'al, 635
F.2d 1108, 1110 (4th dr., 1980), 'cert, den. 102 S.Ct. 125 (1981),
the Fourth Circuit held th*t a cost recovery action under the
Federal Water Pollution Control Act arising out of an oil spill
first accrued when the government completed the cleanup operation.
On the other hand, * defendant-Bight veil be expected to argue
•
that the cause of action' accrues at the time funds are first
expended on the sit*. Zn order to avoid argument on this point,
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03*31 f 9832.1
-18-
and to eliminate a potential bar to recovery, tht Agency should
attempt to commence all cost recovery 'action within three years of
the date dollars are first expended.
C. Extent of Liability of Responsible Parties
While CERCLA Section 107(a) identifies parties who are
responsible for the costs of response actions at a site* the
statute does not expressly set forth the the nature of that
liability. Language which imposed 'strict, joint and several*
liability on the responsible parties was dropped from earlier
drafts in the final, compromise bill* and replaced with a definition.
in Section 101 of "liable* or "liability" which refers to the standard
of liability which obtains under Section 311 of the Federal Water
Rollution Control Act. Section 34-1 is a strict liability statute.
City of Philadelphia v. Stepan Chem. Co., 5*4 F. Supp. 1135, 1140.
n.4 (E.D. Pa. 1982). Moreover, section 311 imposes joint anrf
several liability, U.S. v. H/V Big Sam. 681 F.2d 432,439 (5th Cir.J,
on pet. for reh. , 693 F.2d 451 (5th Cir. 1982).
The position of EPA is that in appropriate circumstances, joint
and several liability is applicable under MRCLA. This position is;
supported by reference to section 311, by the legislative history of
CERCLA 12/t and by Section 107(e)(2) of CERCLA, which provides that
nothing in CERCLA "shall bar a cause of action that an owner or
operator or any other person subject to liability under this section...
has or would have by reason of subrogation or otherwise against any
person."
TIT 126 Cong. Rec., S.19964 (daily ee1. ov. 24, 1980);
T56 Cong. Rec., H.11707 (daily ed. Dec. 3, 1980).
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-19- OSWER | 9832.1
The Department of Justice has interpreted this section is confirm
ing • defendant's right of contribution against other responsible
parties*- which is only of value to a defendant who has been
held jointly and severally liable 13/.
Joint and several liability is traditionally imposed when
the actions of two or more defendants cause a single* indivisible
result, (Prosser, Law of Torts, (4th ed. 1971), Sec. 52.) That
determination may involve factual issues. Therefore, where
two or more parties in the categories of responsible parties listed
in Section 107{a) contribute hazardous substances to a facility
which are being.released, threaten to be released, or are contributing
.to the release or threat, the Agency may argue that those parties
are jointly and' severally liable for the costs of responding to
that release or threat.
This of course does not foreclose the Agency from entering
into consent decrees or other .appropriate agreements with multiple
responsible parties in which they agree tp allocate the Agency's
response costs among themselves. The Agency is primarily con-
cerned with achieving cleanup of hazardous sites, preferably by
private action, and there are many reasons why responsible parties
may wish to share the costs. However, this is primarily a matter
for the responsible parties, and if they cannot agree among
themselves on an appropriate allocation of responsibility, EPA
should proceed with legal action on a theory of joint and several
liability.
l3/ Letter datecr'"Ee"cember 1, 1980, from Alan A. Farfcer,
Attorney General, Office of Legislative Affairs, to Bon.
James J. Florio, 126 Cong. Rec. H11788 (daily ed. Dec. 3, 1980).
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OSWER I 9832.1
-20-
D. The Demand Letter
The first formal step in the commencement of a cost recovery
proceeding will be the issuance of • letter of demand from EPA to
the potentially responsible party or parties for payment of
costs expended on the site. A demand letter should be sent to
all parties in a case who have b*en identified as potentially
responsible (i.e., past and present owners/operators of a site
and generators and transporters who contributed hazardous sub-
stances to a site), and should be issued after all-response
activity has been completed, or at the completion of one ohase
of a multi-phase response where the entire process will reauire
an extended period of time.
Before a demand letter is sent, the potential case should
be analyzed for the elements in part 111 above, including ident-
ification of all potentially responsible parties (including
responsible individuals in corporations where appropriate) and
assembly of cost information. At the time the demand letter is
sent, the Agency should be able to answer reasonable questions
posed by a recipient of the, letter. Regional personnel should
have referred the case to Headquarters (or recommended against
an action) and Headquarters staff should have resolved their
position on a referral so that the Government is prepared to
file a complaint if the response to the demand letter is unsat-
isfactory.
The letter should be issued where response costs have been
incurred under CERCLA, regardless of whether a decision has been
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-21- OSHER » 9832.1
made to initiate a judicial proceeding for cost recovery.
The demand letter should contain the following points:
• reference to EPA's authority to administer CERCLA and
the Fund established thereunder (or reference to
authority to recover costs where the response activities
for which reimbursement is sought occurred prior to
CERC1A);
* the location of the site;
• the presence of a hazardous substance which was re-
leased or threatened to be released;
' in general terras, the dates and types of response activity
undertaken by EPA at the site;
* any notice given to the recipient prior to or during the
response activity, allowing the recipient the opportunity
to undertake the work or pay the expense be response;
• the total cost of the response activity 14/ broken down into
general categories;
,147 The amount stated in the demand letter should be the total
'obligated by .the Agency to be expended on the site, rather than
the amount shown by Agency records to have been expended on the
site at the time the letter is prepared. This is to avoid proMems
caused by delays in payment of response costs after a demand letter
has been forwarded to the responsible party. Even so, available
records should be assembled as soon as possible. Where it
is expected that future costs will be paid (e.g., in the
next phase of response activity), the letter should also
clearly state that in addition to the SUBS already obligated
and spent, the Agency expects to expend additional sums on >
the site for which claim will be made against the responsible
party. Of course, in a judicial proceeding in the cost
recovery action, the Agency will be required to prove the
actual amounts spent from the Fund.
-------
-22- OSCR I 9832.1
• * general statement that tht Agency believes that the
recipient is a responsible party and-liible for the sum
set forth;
• a demand for payment;
• a statement that the recipient of the letter should contact
EPA within a specified period (normally thirty days) to
discuss the account and the recipient's liability therefor;
• a warning that if recipient fails to contact the Agency
within the specified time, a suit may be filed in the
appropriate U.S. District Court for recovery of the
claim; and
• the name, address and telephone number of a representative
of the Agency who the recipient should contact. A sample
•demand letter is attached to this memorandum as Appendix B.
The primary responsibility for preparation of the demand
letter will be in the Regional Program Office. The Regional
Program Office .should consult with the representatives from
OHPC, Regional Counsel, and Office of Enforcement Counsel-Waste.
The demand letter will-be sent through the Office of Waste Programs
>*
Enforcement for tht signature of the Director of OWPE unless
that requirement is specifically waived. If a case is referred
to DOJ, tht DOJ esst attorney should sign tht demand Ittter.
£. Procedure In Event of Response From Potential Defendant
Zn many cases, tht recipients of demand letters will contact
the-Agency and express inttrtst in discussing-their status as a
responsible party, The Agency encourages such negotiations.
-------
-23-
OSWER | 9832.1
CERCLA money is limittd; Agency cleanup Activities deplete the
fund and money must be recovered from the parties responsible
for the release or threat of release. Therefore cost recovery
through negotiation or litigation is necessary to clean up the
greatest number of sites. Cost recovery should involve the
coordinated efforts of knowledgeable legal and technical personnel
at both the Regional and Headquarters offices as explained below.
1. Negotiating Teams and Procedures
Upon receipt of a response to the demand letter from a
potentially responsible party, the contact person named in the
demand letter will notify the Associate Enforcement Counsel for
w«$te, the Regional Counsel, the Director of OWPE and the Regional
Superfund office. Each of those offices will, upon notification,
identify the person who will represent it on the negotiating
team. (The Department of Justice may. participate in .cases which
are likely to result in consent decrees or litigation.)
The formulation of the Agency's position results from the
collaboration of the Team. Zn some policy decisions the entire
Team has relevant background to participate in the decision making
process. However the specialised legal or technical talent on
the Team should be efficiently used.
The Team has the responsibility for developing a proposed
negotiating schedule. The proposed schedule should have the
concurrence of the Associate Enforcement Counsel for Waste and
the Director, OWPE in cases of national significance.
-------
* 9832.1
Some factors which should b« considered in the development
of this schedule are the nuaber of potentially responsible parties
who will take part in the negotiations; the nature of the potential
defenses; the amount of available data linking particular parties
to the site; the amount of the claim, and other related natters.
Sufficient time should be allowed for the negotiation process to
take place, but it is important that a deadline be established as
a goal for achieving a settlement, and beyond which the negotia-
tions will not continue, absent clear indications that a settlement
is imminent. A reasonable period of time for most negotiations is
60-90 days; negotiations should not be extended without Headquarters
approval. A referral should be submitted by the Region and approved
by Headquarters, and a complaint should be prepared and approved
bv the Department of Justice, prior to the conclusion of negotiations
so that an.action may be filed if negotiations are not resolved by
the deadline.
a. Case Team Leader. Contemporaneous with the formation of
t)*e Negotiating Team, Regional and Headquarters program managers,
in consultation with OLCC, will select a program official to serve
as the Case Team Leader. The Case Team Leader's function will be
tot
• focus efforts to develop, in advance of negotiations, the
Agency's negotiating strategy and position on issues that
suy arise during the course of the ease)
• ensure the coordination of legal and technical .staff par-
ticipation on the team by scheduling and chairing regular
ease review sessions; and
• define the Agency's objectives in accordance with applicable
Agency guidances and policies.
-------
-25- QSWER * 9832.1
On occasion, the Team m*y b« unable to develop a consensus
on a cost recovery issue. When this occurs, the Case Team Leader
will prepare a written explanation of the issue for resolution
by the appropriate supervisory staff.
b. Lead Negotiator. Regional Counsel and Headquarters Enforce-
ment Counsel managers, in consultation with the Director of OWPE,
will select the lead Agency attorney for the case.
%.
Although a Regional Counsel attorney will usually be designated
as the lead Agency attorney, in cases of national significance or
which nay be precedent-setting an attorney from OEC-Waste may be
selected. The extent of Headquarters involvement will be decided
on a case-by-case basis by the Assistant Administrator for Enforce-.
Rent, (or the Special Counsel for Enforcement until the Assistant
•
Administrator position is established).1 The Department of Justice
should also be consulted and invited to participate in negotiations.
of cases which are likely to result in a consent decree or litigat
particularly in multiparty and complex cases.
The Team's lead attorney will be responsible for conducting
cost recovery negotiations. Although the attorney is primarily
responsible for explaining and defending the Team's position during
negotiations, he or she may request other Team members assistance
in articulating the Team's position to opposing parties.
At the initial negotiation session, the lead attorney should
inform opposing.parties that while the Teas has authority to negotiate,
any agreements are subject to the approval of Enforcement Counsel and
OSWER. The opposing parties should also be advised that the Agency
has established a deadline for settlement. The deadline should be
disclosed tc trie responsible parties. After the deadline, the
Agency will take judicial action.
-------
"2fi" OSWER * 9832.1
2 . form of Settlement
CERCLA allows the Agency several ways the Agency could
settle a cost recovery action:
• a consent decree
• an administrative order
• a memorandum of agreement.
However, as a natter of policy, the Agency has decided that a
consent decree is required in most cases. A forthcoming policy
will set out the requirements for using consent decrees and another
one will address administrative orders.
Again, it should be pointed out that the negotiating Team
is not authorized to enter into a binding agreement of any type
with the responsible parties in the absence of specific authori-
zation from the Enforcement Counsel and OSWER. Consent decrees
must also be approved by the Department of Justice and the reviewing
court (after a thirty day public comment period) « A draft of any
•
document which is to be the subject of negotiation should, of
course, be reviewed before commencement of negotiations by appropriate
supervisors of the negotiating Team at the Region and Headquarters,
and any document which the negotiating Team and their supervisors
believe to be acceptable for settlement should be forwarded to the,
Assistant Administrator for Enforcement, the Director of OWPE and
the Department of Justice at the earliest possible time to allow for
adequate review. '
The Agency nay allow some settlements in which the responsible
party agrtes to pay the claim in periodic payments where the party
is unable to pay in a lump sum, or where there is other legitimate
reason for delayed payment. Before considering installment payments,
-------
-27-
OSER * 9832.1
ho«cv«r, the Economic Analysis Division of the Office of Policy
and Resource Management (F7S 382-2764) and tht Financial Management
Division of the Office of Administration (FTS 382-5135) should be
consulted in order to obtain a review of the financial condition
of the responsible P«rty and to determine any applicable interest
charges.
Payment of cost recovery claims should be made payable to the
U. S. Environmental Protection Agency and should be mailed to:
U.S. Environmental Protection Agency
Accounting Operations Office
P.O. Box 2971
Washington, D.C. 20013
Attn: Collection Officer for Superfund
The check or other fora of payment should specify the name of
the site at which the activity took place. The lead attorney is
responsible for furnishing copies of judgments, decrees or agreements
for payment of cost recovery claims as early as possible to Financial
Reports and Analysis, Room 3617M, U.S..EPA, 401 H Street, Washin
D.C. 20460, for establishment of a proper account.
F. Procedure in Event of No Response to Demand Letter
If no response is received to the demand letter, a final
determination .BUSt be- Bade of whether the facts of the case justify
the Agency taking further steps to pursue the cost recovery claim.
A decision whether the case should be referred to DOJ should be
made by the Region as well as staff at Headquarters at the time
»
the demand letter is drafted. This decision will initially be
made by the Regional Administrator* based on the recommendation of
the Regional Superfund Office and the Regional Counsel.
-------
OSWER * 9832.1
-28-
Reievant factors to consider includt:
(a) the strength of evidence connecting the potential defen-
dant (s ) ;
(b) the ava ilablility and aerit of any defense. Possible
defenses* under Section 107 of CERCLA are generally that
the r*JL«ase and consequent response action was the result
of:
(1) an act of God;
(2) an act of war; or
(3) an act or omission by an unrelated third party as
to whom the owner/operator had no contractual relations
and did not fail to exercise appropriate care against
the foreseeable acts and omissions of that third party.
(c) the quality of release, remedy and expenditure documentation
by the Agency, a state or third party;
(d) the financial ability of the potential defendant(s) to
satisfy a judgment for the amount of the claim or to pay
a substantial portion of the claim in settlement; and
(e) the statute of limitations.
In considering the ability of the potentially responsible
party or parties to pay, the Regional Offices should make use of
the -Financial Assessment System, developed by the Economic Analysis
Division of the Office of Policy and Resource Management and
managed by NEIC, to assess the financial condition of most
potentially responsible parties.
The determination of the Regional Administrator to initiate
• cost recovery aetion shall be forwarded by a memorandum from
the Regional Administrator to the Assistant Administrator for
Enforcement for concurrence in the same manner as the referral of
ether matters for litigation. A decision not to initiate a cost
recovery action must be reflected in a memorandum to OWPE. An
-------
"29~ OSWER * 9832.1
affirmative decision must b« made by tht Regional Administrator
each ease in which CERCLA funds are expended, whether that decisio
be to proceed or not to proceed. This is necessary because of the
Agency's accountability for management of the Fund.
After OEC concurs on pursuing the cost recovery action/
DEC refers the case to the Department of Justice, together with
the names of the appropriate Headquarters and Regional personnel
who will be involved in the case. If the Department of Justice
fails to concur, the originating Regional office is advised of such
non-concurrence, together with the reasons therefor, and recommend-
ations as to whether additional information should be provided for
DOJ's reconsideration. Even though a Region may recomaend against
pursuing a cost recovery action, the Assistant Administrator for
OSWER may decide on his own initiative that such an action is
warranted. This recommendation would then be sent to OEC for
consideration.
C. Maintenance and Coordination of Evidence in Event of Referral
There will inevitably be logistical difficulties in maintaining
and coordinating the production of the mass of data, contracts,
cost records, and other evidence generated in a response activity.
It is very important to provide for an orderly method of expeditiously
providing that information during the course of a cost recovery
action for use during ease development, discovery, and trial.
-------
.30- OSCR 4 9832.1
Each Agency, office, contractor or other person participating
in a CEFCLA response activity should maintain documents related to
the activity for a period of not less than six (6) years after
all response activities are finished (consult Appendix C for a
list of these necessary documents ).,!£/
The Age-ncy's Financial Management Division will maintain
and periodically update the cost expenditure tracking system for
each site referred to above, so that an itemization of all costs
attributable to a particular site can be quickly obtained. When
a determination is made that a case should be referred to the
Department of '-sties for filing (or, if necessary, during the
time that the demand letter is being prepared or the case is being
considered for referral), a request can be made of the persons.
firms or agencies involved in a response activity for copies of
its records. At that tine, a complete file of all records involved
in the particular case can be compiled and delivered.to DOJ, with
copies of the complete file aadc available to appropriate Regional
and Headquarters legal and technical personnel.
157 The period of six years is necessary because of the pos-
sTtility that the claim may not accrue upon the first expenditure,
Additionally the litigation may be protracted; documents must
be kept for the term of the litigation.
-------
OSWER t 9822.1
-31-
V. Note en Purposes and Use of This Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted puriuant hereto, are intended solely
for the guidance of attorneys and other employees of the O.S.
Environmental Protection Agency. They are not intended to nor
do they constitute rule-making by the Agency, and may not be
relied upon to create a right or benefit, substantive or pro-
cedural, enforceable at law or in equity, by any person. The
Agency may take any action at variance with the policies or
procedures contained in this memorandum, or which are not in
compliance with internal office procedures that nay be adopted
pursuant to these materials.
We trust that this memorandum generally covers -the subject
of procedures to be involved in cost recovery actions under
CERCLA, but if you have any questions or problems involving this
subject matter, please call Russell B. Selman, Office of Legal
and Enforcement Policy, at ITS 426-7503.
-------
OSTCR I 9832.1
Appendix A
Costs Recoverable Under CERCLA
In order to identify"'records which must be developed and
maintained for a cost recovery action, it is essential to know
those costs which say be recovered from 4 responsible party.
Various sections of CCRCLA provide for recovery of certain elements
of costs expended for site clean-up. We have attempted below to
compile a list of those costs which are recoverable, and the
sections of CERCLA which authorize recovery of those costs.
This list is very general and not exclusive.
The listed costs a're in general categories, using language
directly from CERCLA, and a determination will necessarily have
to be made in each case whether a particular expenditure is
within the categories of recoverable costs. In this regard, EPA's
position is that the intent of Congress was to authorize recovery
of all costs directly related to clean-up of a site, and therefore
the costs should be broadly construed to fall within these cate-
gories.
Cost ' CERCLA Section
1. Investigations, monitoring, surveys, $$104(b), 10?(a)(1)(4)(A)
testing, and other information-gathering (providing for recovery
necessary or appropriate to identify the of costs for removal
existence'and extent of the release or actions, which, as
threat thereof, the source and nature defined in f101(23)
of the hazardous substances, pollutants include actions taken
or contaminants involved, and the extent under 5104(b)).
of danger to the public health, welfare
or the environment.
2. Planning, legal, fiscal, economic Same
engineering, architectural, and
other studies or investigations
-------
Appendix A
QSWER » 9832.1
-ii-
necessary or appropriate to plan
and direct response actions.
3. Planning, legal* fiscal* economic, sane
engineering, architectural and
other services necessary to recover
the cost of response actions.
4. Planning, legal, fiscal, economic, same
engineering, architectural and
other services necessary to enforce
the provisions of the Act (CERCLA).
(This could include costs incurred
in prosecuting an immiment endanger-
nent action under 5106).
5. All costs of (A) removal and (B) 5107(•)(4)(A)
remedial action 'incurred by the U.S.
Government or a State not inconsis-
tent with the NCP. Actions for which
such costs may be incurred are
(A) Removal Actions ($101(23)):
(1) the clean-up or removal of
released hazardous substances
from the environment;
(2) such actions as may be
necessary taken in the event
of the threat of release of
hazardous substances-into the
environment;
(3) such actions as'may be necessary
to monitor, assess or evaluate
the release or threat of release;
(4) the disposal of removed material;
(5) such other actions as may be
necessary to prevent* minimize or
mitigate damage to public .health,
welfare or the environment which
may otherwise result from a
release;
(6) any monitoring to assure actions performed
by other parties adquately protect public
health, welfare and the environment, and
meet EPA criteria;
n
-------
Appendix A OSWER * 9832.1
-iii-
(7) specific examples contained in
.(101(23) (without limitation):
a. security fencing or other
measures to limit access;
b. provision of alternative
water supplies;
c. temporary evacuation and housing
of threatened individuals
d. action taken under Sl04(b) of
CERCLA;
e. any emergency assistance provided
under the Disaster Relief Act of
1974.
(B) Remedial Actions ($101(24)):
(1) actions consistent with permanent
remedy taken instead of or in
addition to removal actions, to
prevent or minimize the release
of hazardous substances into the
environment so that they do not
migrate to cause substantial danger
to present or future public health,
welfare or the environment.
(2) Specific examples contained in «101(24) (without
limitation):
(a) storage;
(b) confinement
•(c) perimeter protection using
dikes, trenches or ditches;
(d) clay cover;
(•) neutralization;
(f) cleanup, of released hazardous
substances or contaminated
materials; .
(g) recycling or reuser
-------
9832.1
Appendix A
-iv-
(h) diversion;
(i) destruction;
(j) segregation of reactive wastes
(k) dredging or excavation;
(1) repair or replacement of
leaking containers;
(m) collection of leachate and runoff;
(n) on-site treatment or incineration;
(o) provision of alternative water
supplies;
(p) any monitoring reasonably required
to assure that such actions protect
public health, welfare and the
environment;
(q) costs of permanent relocation of
residents, businesses and community
facilities (where relocation, alone
or in combination with other factors,
is more cost-effective than and'
environmentally preferably to trans-
portation, storage, treatment or
disposal off-site of the hazardous
substances).
(3) Remedial actions do net include:
(a) off-site transportation of hazardous
substances)
(b) off-site storage, treatment or
disposal of hazardous substances;
unless it is determined that such actions are
(A) sort cost-effective than other remedial
actions; (B) will create new capacity to manage
(in compliance with Subtitle C of RCRA) hazardous
substances in addition to those at the affected
site; or (C) are necessary to protect public
health, welfare or the environment frrom a prevent
or potential'risk which may be created by further
exposure to the continued presence of the
hazardous substances.
-------
Appendix A OSWER * 9832.1
-v-
6. Any other necessary costs of response $107 (a ) (4 ) (B }
incurred by any other person consis-
tent with the NCP. "Response" actions
include both "removal" and "remedial"
actions (<101(25>. /Se-'liet of
removal and remedial actions Above.)
7. Damages for injury to, destruction of, 5107 (a)(4)(C)
or loss of natural resources, including
the reasonable cost of assessing such
injury destruction or loss. (See note,
below)
•Natural resources" include ($101(16)):
(a) land;
(b) fish;
(c) wildlife;
(d) biota;
(«) air;
(ti water;
(g) groundwater;
(h) drinking water supplies;
(i) other such resources belonging
to, managed by, held in trust
by, appertaining to, or otherwise
controlled by the United States,
any state or local government, or
any foreign government (includes
resources of the Fishery Conser-
vation and Management Act of 1976).
NOTE: CERCLA 5301(c) provides for the promulgation of regulations
not later than two years after enactment of the Act for the
assessment of damages for injury to destruction of or loss of
natural resources resulting fron a r«l«ase of a hazardous
substance. See footnote 3 in the Memorandum for further
explanation on recovery of these damages.
-------
I 9832.1
Appendix B
(Modtl Demand Letter)
XY2 Corp.
Someplace, Start 00000
Re: Name,, location of site
Dear Sir or Madam:
On or about , 198_, there were
releases and threatened releases into the environment of
hazardous substances (and pollutants and contaminants) from
th* —._——. **cility located at or about ..
(In addition, there were releases and threatened releases of
pollutants and contaminants that nay present an imminent and
substantial danger to the public health or welfare.]
[On or about . 19_» EPA ?av« [oral] notice
to you (wnich w«s confirmed) by letter of
, 19 , advising you regarding.the referenced
facility and that you are a party who may be liable for voney
expended by the government to take corrective action at the
facility. CPA offered you the opportunity to discuss with EPA
your voluntarily taking action necessary to abate any releases
or threats of'releases of'.hazardous substances [and polluants
and contaminants) from the facility.~~You did not.undertake
the necessary actions.]
Zn accordance wici the Comprehensive Environmental
Response, Compensation and Liability Act (CE8CLA), 42 U.S.C.
$9601 et seq., (and other-authorities (insert where pr« CEftCLA
or non CERCLA expenditures>J the (State of . pursuant
to an agreement with and funding by the (insert if State lead)}
United States Environmental Protection Agency (EPA undertook
response action using funds provided for such actions. The
action began on or about '. .. and continued to on
or about EPA*s response action entailed
the (describe generally what was done).
The cost of the response action [performed] (caused
to be performed by EPA at the facility] (was] [is currently!
approximately S . (Insert the amount obligated
by the Agency to be expended on the site, not-the amount
actually expended according, to Agency records.) [The Agency
anticipates expending additional funds in the future under
authority of CERCLA for additional response activity which the
Agency deems appropriate to be performed at the site.] Enclosed
is a statement summarizing the expenditures to date.
-------
f 9832.1
Information available to EPA indicates anon; nth»r
things that you (chosse on* or more, of the bracketed clau«*«
as appropriate:) fare/were at the time of the response
action the owner/operator of the facility] [were the owner/
operator of the facility at the time of disposal o* hazar-ous
substance* at the facility] (did, by contract, agreement or
otherwise, arrange for disposal or treatment, or arranged for
transport for disposal or treatment of hazardous substances
[and pollutants and contaminantsJat the facility (accepted
hazardous substances [and pollutants and contaminants] for
transport to the facility which was selected by you). Pursuan-
to the provisions of Section 107(a) of CERCLA [and other autho--
ities (insert where pollutants or contaminants involved and
where other Jaw involved)), we belitve that you are liable for
the payment of all costs expended on the site to thw Hazardous
Substance Response Trust Fund established pursuant to Section
221 of CERCLA, which is administered by EPA.
We hereby request that you [or a group of parties
potentially responsible for the site} make restitution by pay-
ment of the herein stated amount plus interest [together with
any sums hereafter expe-nded by the Agency on the site pursuant
to authority of CERCLAJ. (The names of ether potentially
responsible parties receiving this request for payment are
enclosed with this letter to facilitate organization among
the identified parties concerning payment.] If you [or an
organized group of potentially responsible parties] desire to
discuss your liability with E£A,-please contact the person
named below in writing not later than thirty' (30) days after
the date of this letter. We will otherwise assume that you
have declined to reimburse the Fund for the site expenditures
and will subsequently pursue civil litigation against you.
Sincerely,
Contact Person:
(Name]
(Title]
[Address]
cc:: Enforcement Counsel
Regional Counsel
Seat* Agency
-------
OSWER | 9832.1
Appendix C
The following pages constitute a search guide that nay be used by the
>«gional-enforcement program in gathering documentation to support a cost
-recovery action. The March guide feowt t» a chart with four columns, headed
as follow*: •DDOJsent*, •Originator*, *EPA Contact' and 'Regional rile
Location'.• All of the documents listed will probably not be available in aU
cases, nor will each one necessarily enhance the body of evidence in every cast.
Zt sust be decided on a cast by^ase basis exactly which pieces of documentation
should be used as supporting evidence. The search guide was neant to be an
exhaustive list of documents that should be considered. Zt is suggested that
the persons conducting the file search for supporting docintntation pull out
each document on the list if it is available. Zt can be decided at a later tiae
which of the documents are useful as evidence given the facts of the particular
case.
Please note that the search guide covers only documents that would be
useful in supporting the first three elements of proof discussed in this
guidance: proof of the release, link between the party and the site and
consistency with the HO>. Cost documentation will be the subject of another
guidance document that is currently under development.
• The fourth column, *Hegional file Location', has neaning only if the Region
uses the filing system described in Appendix E<
-------
I. Evidence of • Rel
of th» Ttneat of a4- Releat
• Notification Recotd
putsuant to sec.
1031 a) of COCLA
• Notification Reootd
putauant to Sec. lOlfc)
of CERCLA
• Recotd of notification
of epA-HD-Beatgency
Response Division,
EPA Regional
MmlnUttator or
other EPA official
• Compliant*
Investigation
Repott putauant to
section 104llanoe Agency
• NCH (aee page 21, II.
liullet 11}
• ntiiitdlal Baaponaet
Diaoovmy/Hazatd
Ranking Flle/Reglona/
HO
• MIC
* EPA-HO-Owioancy Response
Division Removal Response
Pile
' tUaudlal Reaponeei
Dl scovety/Hatard
Ranking Pile
• Remedial Responset
Dl scovet y/Hazatd
Ranking Pile
•Uhless otheiwlse noted, this assumes the docmgnts ate located In the Regional files
and assunes the Regions are using the file ettuctute outlined In Append I« K.
-------
I. Evidence of •
or the Ihteat of a tolease (continued)
DoctMent
Originator
EM contact
Probable Pile toot ton
Motes ftoja gjhuna
calls* correspondenoa,
photogtaphs, or other
fotia of randaa or
Incidental observation
Signed witness stats-
(Rents (desctlblng the
conditions leading
up to the tvleass
and the t«lease)
• Oov*t. Officials
(local. State,
Pifcllc
• Ouner/Dpetstor
Facility
• Bnployeea or
ODntiactois assoc.
w/ facility
• nderal/Stats
Invest loatot a
• locml Officials
• Frtltc
• EPA-Reglon, Enf./
OoMpllanoe frojact
Hanngef
• State Dlf./
OoMpllanoa Agency
• Nimlclpal Oowetfment
OCfeoe (e.g., p%M>llc
Health or police Dept.)
• EPA-Region, Haste Mgt.
Division PtoJ. Managet
• State Agency
Iteaadlal iteaponsat
Dlacovety/ Hacaid
Ranking Pile
Henedlal Responset
iMscoweiy/ ftaxatd
Ranking Pile
-------
•"",
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, SC 104*0
AUG 29 1983
MEMORANDUM
SUBJECT: Coordination of EPA and State Actions in CERCLA
Cost Recovery Negotiations and Litigation
FROM: Courtney Price ^-C.*X
Special Counsel forBpfA'C*
Lee Tnoma s %^ ^
Assistant Administrator for"
Solid Waste and Emergency Response
TO: Regional Administrators, Regions 1-X
Regional Counsels, Regions l-K
Director, Office of Intergovernmental Liaison
The clean-up of hazardous waste disposal sites under the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) involves payment of monies from the Hazardous Substance
Response Fund (the Fund) created by Section 211 of CERCLA to
individual States or to contractors to finance clean-up activities.
In many cases, the State in which the site is located will also
contribute its own funds to the site clean-up _!_/. EPA and the State
may thereafter negotiate with -or take judicial action for recovery
of the amounts expended by them against the party or parties who
I/ Under CERCLA $104(c)(3), the State must pay or assure payment
of 10 percent of the cost of remedial action and operations and
maintenance at a site and at least 50 per cent of the cost of
all response actions at a facility which was owned by-the State
or a subdivision at the time of disposal of hazardous substances.
Current Agency policy allows CERCLA funding of remedial
investigation, feasibility study, and remedial design at privately
owned sites without a State cost-share. Accordingly, any cost-
share previously paid by the State (allowable State services,
statutory credit or cash) for remedial investigations, feasibility
studies, and remedial de'sign at privately owned sites will b«»
applied toward the State's share of the cost for remedial constructi
at the site, see Kay 13, 1983 Memorandum from Lee M. Thomas.
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-2-
are legally responsible 2/. In those cases, the question arises
whether the separate negotiations or judicial actions of EPA or
the State to recover their respective funds might, in some way,
prejudice the other's right to recoup its monies, and if so,
what actions might be taken to avoid such prejudicial effect.
It may initially appear unreasonable to conceive that eithej
EPA or a State could take action which would interfere with the
other's right to recover monies expended for site clean-up.
However, the following points should be considered:
c State as Agent - EPA will frequently transfer its share
of clean-up funds to the State which will, in turn, spend
it on the site under the cooperative agreement with EPA.
The cooperative agreement contains numerous protocols,
procedures, and other standards with which the State must
comply to assure the quality of the site investigation and
clean-up. Because of EPA's control over these matters,
adverse parties may argue that the State is EPA's agent or
representative for the expenditure of the funds. This
misunderstanding.might be asserted as a defense to recovery
of remedial costs by a potentially responsible party.
2/ Further guidance on cost recovery procedures and responsible
parties is contained in a forthcoming policy entitled, "Cost
Recovery Actions under CERCLA."
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OSWER * 9832.
-3-
* Collateral Estoppel - An adverse judgment by a court in an
action by either EPA or a State on the issue of recovery of
funds expended on the site might be held to collaterally
estop the other governmental agency from successfully bringing
a subsequent action against that same party 3/«
* Insolvency of Responsible Partyfs) - A settlement or
judgment by EPA or the State might exhaust the available.
resources of the responsible party(s), leaving the other
governmental agency without possibility of a recovery.
Regardless of the merits of arguments which may be made on
the foregoing considerations, in the interest of promoting
Federal-State relations, there are certain rights and obligations
which should be clearly defined at the outset of the relationship.
The Regions, in cooperation with OERR, have recognized the benefits
of identifying these interests by reflecting them in the cooperative
agreements. Accordingly, this memorandum does not require the
Regions to adopt any new procedures or change any existing coopera-
tive agreements. Instead this document .presents the rationale
for drafting cooperative agreements in the manner prescribed by
OERR.
3/ See United States v. I.T.T. Rayonier, Inc., 627 F.2d 996,
T9th Cir., 1980).
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-4-
THE COOPERATIVE AGREEMENT
1. Negation of Agency in Cooperative Agreement
The cooperative agreement should negate the principle that
the State is an agent for EPA. This is important for both govern-
mental agencies for a number of reasons. In the cooperative
agreement, EPA will necessarily require that the State observe
certain standards, procedures and protocols, such as in the
taking of samples, their chain-of-custody, analysis protocols,
and perhaps accounting procedures. The need to specify sucn
procedures could be argued to constitute a right to control the
actions of the State, an indicia of a.n agency relationship.
Neither EPA nor the State should wish to encourage such an
argument because of the potential exposure to tort liability
as well as the possibility 'of complicating a cost-recovery effort.
Therefore, the imputation of an agency relationship between EPA
and the State should be negated by appropriate language in the
cooperative agreement. Suggested language for such a provision
appears in the Appendix to this memorandum.
2. Requirement for Notice of Settlement or Action
The cooperative agreement between EPA and the State should
contain a provision that neither will initiate a cost recovery
proceeding or enter into .a settlement with the responsible party
except after ample written .notice in advance of the execution of
a settlement agreement or the filing of a suit. The provision
prevents rushing by EPA and the State to obtain a judgment against
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OSWER * 9832
-5-
or settlement with the responsible party, thereby gaining
a position of preference with respect to the assets of the
responsible party.
Inclusion of such a provision in the cooperative agreement
is fair to both EPA and the State, in that neither may gain an
unexpected advantage to the assets of the responsible party by
separate negotiations of which the other may be unaware.
Such a provision also provides a means whereby each party to
the cooperative agreement may take separate independent action
to protect its interests, after having given the necessary notice,
if there are reasons to not engage in joint EPA-State negotiations
or file suits in coordination with each other against the
responsible parties. Suggested language for such a provision
appears in the Appendix to this memorandum, and provides for
written notice not less than 30 days in advance of settlement or
initiation of a cost recovery action.
3. Requirement for Cooperation and Coordination of
Cost Recovery Efforts
The cooperative agreement should also provide that EPA and
the State will cooperate with each other in efforts to recover
their respective shares of the costs of response activities at the
facility/ and will coordinate their respective activities and
resources in such efforts* including the filing and coordination
of litigation for the recovery of costs and the use of evidence
and witnesses in such suits. This provision is desirable because
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-6-
cost recovery suits will involve considerable data, documents
and witnesses from both EPA, the State and their contractors,
and close coordination between EPA and the State will be very
important to the efficient and effective resolution of those
suits. Model language for this provision also appears in the
Appendix.
4. Requirement That Judicial Action Be Taken
in U.S. District Court _
The cooperative agreement should also provide that any suit
filed by either party to the agreement against any third party for
recovery of response costs to which it may be entitled, shall be
brought in the U.S. District Court for the judicial district in
wh:ch the release or damages occurred, or in which the defendant
resides, may be fouod, or has his principal office (S113(b)).
The purpose of this provision is to avoid fragmenting the efforts
of EPA and the State between Federal court (in which EPA would
bring a suit), and State court (in which the State could bring a
cost recovery suit under any applicable State law. See the
discussion of this point in the section entitled "Pending Cases",
infra). Model language for this provision also appears in the
.Appendix.
NON-JUDICIAL SETTLEMENT
In the absence of an agency relationship between EPA and the
State, there is little possibility that the State could enter into
a separate agreement with the responsible party (as distinguished
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_7_ OSWER * 9832.
from a Decree or Judgment) which could affect EPA's rights againsj
the responsible party, other than to drain off that party's
assets which might be available for payment of a cos_t-recovery
claim. In the case of a responsible party with substantial assets,
a separate settlement by the State or EPA may not present a
serious problem to the other party. However, assuming EPA becomes
aware of an impending settlement between the State and the
responsible party(s) £/, the Agency should, before the settlement
is finalized, determine the probable extent of the responsible
party's financial ability to satisfy EPA's claim in addition to
payment of the settlement with the State _5/.
In most cases, the responsible party will probably wish
to simultaneously settle its liability with both the State and EPA.
Collective negotiation and settlement procedures involving the
4/ EPA should become aware of any impending settlement by the
S~tate with a responsible party assuming there is a provision in
the cooperative agreement which requires the State to notify
EPA in writing thirty days in advance of any proposed settlement,
and the State complies with that agreement.
_5/ A determination of the financial ability of a potentially
responsible party can be made by the Financial Management Division
of the Agency, or by use of a Financial Assessment System which
has been developed by the Economic Analysis Division of the
Office of Policy Analysis of EPA. This system will provide case-
by-case, inexpensive and defensible estimates of ability-to-pay
which will b« useful for settlement consideration. This system
requires * minimum of financial .:,-•, ta which will usually be available
from ft Dun and Bradstreet report, a Moody's listing, or an audited
financial statement. When that information is not available, the
system will enable enforcement personnel to focus data requests
to that information necessary to perform a minimum financial assess-
ment. Any questions about this system and its uses should be
directed to Kathy Summerlee, FTS 382-3077, or David Erickson,
FTS 382-2764.
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OSWER * 9832.
-8-
-State, EPA, and the responsible parties should be encouraged
to avoid misunderstandings and to resolve all issues at the
same time. However, there will undoubtedly be circumstances
under which the responsible party may believe that it would
be advantageous to settle with one claimant (either EPA or
the State) and not the other. It is those cases where the
assets pf the potentially responsible party would be sub-
stantially depleted by the. settlement which could present
significant problems for each claimant.
It should be recognized at the outset that, absent the
proposed notice and coordination agreements discussed above,
there is nothing to prevent the State or EPA from settling
its claim in the absence and without the concurrence cf the
other. Where such a settlement would place either the State
or EPA in a more advantageous position with regard to the
assers of the responsible party, problems could arise which
could affect intergovernmental relations. In those cases,
the following options are available to EPA:
1. Should EPA determine that the State has independently
entered into settlement negotiations with the responsible
party, EPA should contact the appropriate State agency in an
effort to establish a joint settlement effort and strategy.
Simultaneously, EPA should notify the responsible party by
letter (if that has not already been done as part of the Agency's
cost recovery procedure), advising it of the Agency's claim, and
that no other person or entity is authorized to-negotiate for or
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OSWER * 9832.
-9-
otherwise represent the Agency in respect to that claim.
At the same time, the Agency should initiate an investigation
into the financial resources of the responsible party to
determine whether there will be sufficient assets remaining
after the proposed State settlement to satisfy EPA's claim.
That investigation can be carried out in the manner described
in footnote 5.
2. If it is determined that the assets of the responsible
party will likely be deplete- or substantially impaired by a
separate settlement with the State without provision being
made for EPA's claim, and if efforts to establish a joint
settlement effort with the State are not successful, then
cor.s iderat ion should be given to EPA's applying to the appro-
priate U..S. District Court for the appointment of a receiver
to operate or manage the assets of the. responsible party for
the benefi't of all creditors of that party. This action, if
taken in a timely manner, would prevent the responsible
party from distributing its assets in a preferential manner.
However, the decision to attempt to forestall a State
settlement with a responsible party should be made only after
serious consideration of all factors involved, including:
• the amount of EPA's claim which might be prejudiced;
• the past relations between EPA and the State agency
involved in the negotiations;
' the circumstances under which the State and the
responsible party entered into the negotiations
without the presence of EPA;
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OSNER * 9832.
-10-
0 the existence of any agreement between EPA and
the State prohibiting such negotiations;
0 and any other factors which might bear upon the
decision.
While this action should be taken only as a last resort,
the Agency's responsibility to preserve and restore the Fund may
require such action. As in other such actions, a decision to
seek the appointment of a receiver for the assets of a responsible
party will require the concurrence of the Special Counsel to the
Administrator for Enforcement.
PENDING CASES
There are a number of cases in which States have already
initiated a suit against responsible parties, and'EPA has
contributed or intends to contribute a portion of the clean-up
costs. In such cases, what is the proper forum and the best
method in which to proceed?
In the absence of an agreement with EPA to the contrary,
a State may, of course, proceed with an action in State court for
cost recovery claim's bas.ed upon any applicable State law 6/.
6/ CERCLA S107(i) provides: "Nothing in this paragraph shall
affect or modify in any way-the obligations or liability of any
person under any provision of State or Federal law, including
common law, for damages, injury or loss resulting from a release
of any hazardous substance or for removal or remedial action or
the costs of removal or remedial action of such hazardous
substance."
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OSWER I 9832.:
-11-
States are also authorized to make claims under CERCLA for
the cost of response activities which they incurred at a site.
Section 107(a) of CERCLA, for example, provides for the liability
of past and present owners and operators of a facility, generators,
transporters and others for "all costs of removal or remedial
action incurred by the United States o_r a_ State not inconsistent
with the National Contingency Plan." Many other sections of
CERCLA refer to the right of the States to recover for their own
cos ts.
However, §113(b) of CERCLA provides:
"... the United States district courts shall have exclusive
original jurisdiction over all controversies arising under
.this Act, without regard to the citizenship of the parties
or the amount in controversy. Venue shall lie in any district
in which the release or carnages occurred, or in which the
defendant resides, may "Se foun.d, or-has his principal offi
We interpret this provision to mean that any claim made
by EPA, the State or any other person for recovery of response
costs, which is based upon the-, provisions of CERCLA, must be
brought In the appropriate U.S. District Court, and may not
be asserted on behalf of EPA by a .State in a State court
action 7/. Obviously, any claim asserted by EPA will be based
upon CERCLA and will be in U.S. District Court. Likewise, if
7/ In addition to the restriction of 5113(b), there are additional
"reasons why the State could not attempt collection of the Federal
share of response costs.. Under CERCLA SH2(c)(3) and 28 USC $516,
the U.S. Attorney General is required to represent EPA in these
proceedings. This may not be delegated to the States, and therefore
it is not possible to authorize the States to attempt collection
of the Federal share of response costs in a State court proceeding,
even should it be otherwise appropriate.
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-12-
the State's claim against a third person for its share of the
costs relies in whole or in part upon CERCLA, then it too must
be brought in U.S. District Court. A State may, therefore,
attempt recovery of its share of response costs in State
court only under some law or theory other than CERCLA.
We also believe it highly important that EPA and the State
attempt to coordinate their respective claims because:
0 such actions will involve a substantial amount of technical
data, documents and witnesses from both EPA and the State,
and each party could derive the benefit of the other's
evidence and witnesses;
8 coordination would avoid the necessity of maintaining two
separate proceedings which would duplicate much of the sa~e
effort and resources'-; and
8 coordination of the claims would avoid the issue of collateral
estoppel discussed earlier in this memorandum.
We believe the States will be receptive to joint or cooperative
cost recovery actions with EPA for these reasons, and for the
additional reason that the legal authority for the States to
recover is probably much clearer under CERCLA than it may be
under the laws of most States.
The following options, or some variance thereof, should
therefore be followed in those cases where EPA provides CERCLA
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QSWER t 9832.
-13-
funds under a cooperative agreement to a State which has a suii
pending in State court against the responsible party:
Option I: EPA should require, as a condition of'payment cf
the CERCLA funds to the State, that the State will, within a
certain period of time (i.e., 30 days) after receipt of the
funds, dismiss without prejudice all claims for recovery or
reimbursement of any response costs at the site 8/ from any
action then pending in State court. The provisions recommended
earlier in this Memorandum for inclusion in all cooperative
agreements should also be used 9/.
It is not necessary to require that a single suit for cost
recovery be filed jointly by EPA and the State. It may be a
more simple procedure, and avoid potential logistical problems,
for each party to file its own suit separately,•and then regues-—^
_§/ Note that this does not necessarily require a complete
dismissal of the pending State court action. This recognizes
that there may be other claims of the State involved in the
case, with which the State'may wish to continue in the State
court proceedings, and that the existence of counterclaims, by
the defendant on other issues may prevent the State from
effecting a complete dismissal of the case. The important
point is to eliminate all cost recovery claims from the
State court proceedings. Of course, if those are the only
claims involved in the State case, a complete dismissal of
the case would'be the desired result.
_9/ The Attorney General of the State should agree to or
concur in this provision of the cooperative agreement, since
it affects pending litigation in which the Attorney General
is representing the State. Such agreement or concurrence may
be limited to the particular provision requiring dismissal of
the case, and may be evidenced by an endorsement to the
cooperative agreement or by separate letter signed by the
Attorney General or .his representative.
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OSWER * 9832.:
-14-
the U.S. District Court before which they are pending to consoli-
date proceedings on the suits pursuant to Rule 42 of the Federal
Rules of Civil Procedure.
Note also that this option does not affirmatively require
that the State refile its claim in Federal court, but only
that if the claim is refiled, it will be in Federal court. The
requirement for cooperation and coordination between EPA and
the State will also apply to and encourage joint negotiations
with the responsible parties before filing of a. suit in Federal
court, as well as to subsequent litigation in Federal court.
Option II; It is conceivable that a State may wish to continue
to pursue its cost recovery claim in State court, or may not
wish to coordinate its efforts with EPA. In such event, EPA
should not, even if it could, attempt to require it to do other-
wise. However, because collateral estoppel could be raised
against EPA by the responsible party(s) in event of an unfavorable
result in State court proceedings/ EPA should, as a condition
of payment of the CERCLA funds, require that the State,
within a specified time, dismiss without prejudice or omit
from any action then pending or which it may subsequently
file in State court any claim for recovery of response costs
which in the opinion of EPA, are or may be based upon CERCLA,
or any law, regulation or authority other than that which
may exist under the laws of that State 1QA
10/ See comment at footnote 9.
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OSWER # 9832.
-15-
EPA should strongly urge the States with which it enters
into cooperate agreements to accept Option I, since it win
result in much greater effectiveness and cost-efficiency in
recovery actions. Option II should be adopted only after
all efforts to persuade the j ia-.a have failed.
Note on Purpose and Use of this Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of attorneys and other employees of the U.S.
Environmental Protection Agency. They are not intended to nor
do they constitute rule-making by the Agency, and may not be
relied upon to create a right or benefit, substantive or pro-
cedural, enforceable at law or in equity, by any person. The
Agency -may take any action at varience with the policies or
procedures contained in this memorandum, or which are not in
compliance with internal office procedures that may be adopted
pursuant to these materials.
We recognize that this memorandum contains subject
matter which relates to sensitive areas of the Federal-State
relationship. Nothing contained herein is intended to imply
bad faith or improper motive on the part of any State or
agency thereof, and no such interpretation or construction of
any provision herein should be made. This memorandum attempts to
recognize that in the normal course of EPA-State relations,
occasions arise in which the interests of EPA and the State may
not be identical, and it is our intent to anticipate and
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-16-
prepare for such occasions so that they can be approached in
a rational, planned manner to minimize further potential
impact on the relationship.
If you have any questions or problems concerning any matter
contained herein, please call Russell B. Selnan at FTS 426-7503.
Attachment
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OSTCR t 9832.2
APPENDIX
Under CERCLA, both EPA and affected States can institute
enforcement actions against and/or negotiations with parties
responsible for priority waste sites. When'this occurs, a
settlement or legal action by either party could potentially
impede or even negate *he c la ins of the other for rscc"«ry -•?
funds expended at the site. Obligations, rights, and pro-
cedures for litigation must be defined as early as possible
in the working relationship between EPA and the State to avoid
this eventuality. Therefore, provisions concerning cost recovery
should be in the Cooperative Agreement application. Specific
provisions that address different enforcement conditions are
presented below. These provisions should be reviewed, discussed
with the RSPO, and included in the application, as appropriate.
Please refer to the text of the Memorandum for guidance on
the use of these provisions.
1. Disclaimer of Agency Relationship
Nothing contained in this Agreement shall be construed to
create, either expressly or by implicaation, the relationship
of agency between EPA and the State. Any standards, procedures
or protocols prescribed in this Agreement to be followed by
the State during the performance of its obligations under this
Agreement are for. assurance of the quality of the final product
of'the actions contemplated by this Agreement, and do not
constitute a right to control the actions of the State. EPA
(including its employees and contractors) is not authorized to
represent or act on behalf of the State in any matter relating
to the subject matter of this Agreement, and the State (including
its employees and contractors) Is not authorized to represent or
act on behalf of EPA in any matter related to the subject matter
of this Agreement. Neither EPA nor the State shall be liable
for the contracts, acts, errors or omissions of the agents,
employees or contractors of the other party entered into,
committed or performed with respect to or in the performance
of this Agreement.
2. Notice of Intent to Settle or Initiate Proceedings
EPA and the State agree that, with respect to the claims
that each may be entitled to assert against any third person
(herein referred to as the "responsible party", whether one or
more) for reimbursement of any services, materials, monies or
other thing of value expended by EPA or the State for response
activity at sit* described herein, neither EPA nor the State
will enter into a settlement with or initiate a judicial or
administrative proceeding against a responsible party for the
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OSWER * 9832.2
Appendix
ii
recovery of such sums except after having given notice in
writing to the other party to this Agreement not less thai
thirty (30) days in advance of the date of the proposed
settlement or commencement of the proposed judicial or
administrative proceedings. Neither party to this Agreement
shall attempt to negotiate for nor collect reimbursement of
any response costs on behalf of the other party, and
authority to do so is hereby expressly negated and denied.
3. Cooperation and Coordination in Cost Recovery Efforts
EPA and the State agree that they will cooperate and
coordinate in efforts to recover their respective costs of
response actions taken at the site described herein, including
the negotiation of settlement and the filing and management
of any judicial actions agair.st potent ial .third parties. This
shall include coordination in the use of evidence and witnesses
available to each in the preparation and presentation of any
cost recovery action, excepting any documents or information
which may be confidential under the provisions of any applicable
State or Federal law or regulation.
4. Judicial Action in U.S. District Court
EPA and the-State agree 'that judicial action taken by
either party'against a potentially responsible party pursuant
to CERCLA for recovery of any sums expended in response
actions at the site described herein shall be filed in the
United States District Court for the judicial district in
which the site described in this Agreement is located, or in
such other judicial district of the United States District
Courts as may be authorized by section 113 of CERCLA, and
agreed to in writing by the parties of this Agreement.
5. Litigation Under CERCLA Sections106 and 107
The award of this Agreement does .not constitute a waiver
of EPA's right to bring an action against any person or persons
for liability under sections 106 or 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
or any other statutory provision or .common law.
6. Sharing Recovered Funds with EPA
Any' recovery achieved by the State pursuant to settlement,
judgment or consent decree or any action against any of the
responsible parties will be shared with EPA in proportion to EPA's
contribution to the site cleanup under CERCLA.
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QSWER * 9832.1
APPENLIX
iii
01
7. Dismissal By State of Pending Cost Recovery Action - Opti
The State does hereby agree that it will, not later than
thirty (30) days after the date of this Agreement,~cause to De
dismissed, without prejudice to any subsequent refiling, any
and all claims of the State (or any Agency thereof) in the
case of "(State or Agency) v. (defendant), now pending in the
(Circuit, Chancery> etc. ) Court of ,
Docket No. • for recovery of any services, materials,
monies or other thing of v?ije expended or to be expended on
the site described in this Agreement. Any subsequent refiling
of said claims by the State or any agency thereof will be in
accordance with the provisions of this Agreement.
(See comment at footnote 9 of Memorandum regarding State
Attorney General concurrence with this provision.)
8. Dismissal By State of Pending Cost Recovery Action - Option II
The State does hereby agree that it will, not later than
thirty (30) days after the date of this Agreement, cause to be
dismissed, without prejudice to any subsequent refiling, any and
all claims of the State (or any Agency thereof) in the case of
"(State or Agency) v. (defendant), now pending in the Docket No.
, for recovery of any services, materials, monies or'
other thing of value expended or to be expended on the site
described in'this Agreement which are based or rely, in whole
or in part, upon the provisions of the Comprehensive Environments".
Response, Compensation, and Liability Act of 1980. Any subsequent
refiling of said claims by the State will be in accordance with
the provisions of this Agreement.
(See comment at footnote 9 of Memorandum regarding State
Attorney General concurrence with this provision.)
9. Emergency Response Action
It may in the course of conducting the remedial activities
covered by the Cooperative Agreement* become necessary to
initiate emergency response actions at the site. The Cooperative
Agreement application should contain a provision acknowledging
this eventuality and dealing with the effect any such emergency
actions will have upon the remedial project. The provision
below, or its equivalent, may be used in the application for this
purpose:
Any emergency response activities conducted
pursuant to the National Contingency Plan,
40 CFR section 300.65, shall not be restricted
by the terms of this Agreement. EPA and the
State may jointly suspend or modify the remedial
activities in the SOW of this Agreement during
and subsequent to necessary emergency response
actions.
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OSWER * 9833.0
' S S : •
-------
II. Requirements for Issuance and Scope
c: Sl^&i'a" .-.--ir. istrst: v« Orders 4
;.. i-icCsS.-ity for "determination" 5
5. Necessity for Actual cr T.ure3ie-«"2
Release o* -Hazardous Substance 6
C. Necessity'that Release or Threat
of Release be Frcrr. a Facility 7
r. Necessity for Exister.ee of li-jri ner.t
a.-.: Sues tar.t :a_ Enhancement^ s
£. Notice tc Affrctec States :....'}
III. Persons to Whc:-i an Order Jay Ee Issued 1C
IV. Cr:ter:s for Issuance of $106 Orders 11
A. Responsible Parties' Financial Status 12
E. Nur.rer of Responsible Parties Subject to
the Order 13
C. Specificity of the Necessary Response Action. . 14
D. Acency's Readiness to Litigate the Merits
of tr.e Order 16
E. Competing Considerations. ...'.. ' . 16
V. Orders Relating to Removals and Remedial Actions. . 17
A. Immediate Removals I"7
B. Planned Removals and Remedial Actions 19
VI. Procedures for Issuance of $106 Orders 20
A. Planned Removals and .Remedial Actions 21
B. Immediate Removals 21
VII. Opportunity to Confer 22
A. Planned Ren-.ovfils and Remedial Actions 22
S. Emergency Situations. 23
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C. Icr.fererce rrccecjres ............. 22
........... . ....... 24
VIII. Proced.-re if Order Not Obeyed ..." ........ 25
IX. Note en Purpose ani Use of This Memorandum ..... 26
Appendix A: N'rt if icat ior. Letter
Ap;:*--:* =: S=-.;le §::£. = ' Air.:.-.:stra;ive Orc=r
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I.
WASHINGTON! OCJO««0
S'JfaJECT:
Guidance Mer.crc-~.-ur on Vse ar.d Issuance of
Administrative Grd
-------
e-ii-jermer.t tc the public health or welfare cr the er.virc-.T.srt
CeCduad of an actual cr threatened re.ease of a hazardous
substance from a facility." A fir.? net exceeding 55,000 per
day may be imposed for willful violation, failure or refusal
to comply with a S106(a) Order (Order)/ and punitive damages
of up to three times the cost of clean-up of the site may be
imposed under $107{c)(3) for failure/ without sufficient cause,
to properly provide removal or remedial action pursuant to such
an Order. In view of the magnitude of these penalties, the
Agency expects that the regulated community will conply with
administrative Orders. At the same time, the Agency's obliga-
tion is tc ensure that Orders are properly issued.
It is the current policy of EPA that, whenever possible,
parties who have caused or contributed to a release or a threat
of a release of hazardous substances at & site should.
rectify the problems at the site. This action is necessary
to ensure that the Agency efficiently manages the limited funds
available under CERCLA and to ensure that the maximum number of
sites are addressed.
Accordingly, after the Agency discovers a site and in advance
of completing a Remedial Investigation and Feasibility Study (RI/FS),
(and has conducted an endangerment assessment, or their, equiva-
lent), responsible parties normally will be sent a notice letter
requesting them to clean up the site. Following completion of the
feasibility study/ the Agency normally engages in discussions with
-------
responsible parties in ar. attempt to octein promptly the sTre*-
rer.t cf such parties tc vclur.tarily undertake the necessa-v
respcr.se acticr.s. If tr.e discussions are successful, the ter=is
of tne agreement will be embodied in a judicial consent decree
or a $106 administrative consent Order.
In circurr.star.ces where tne Agency wishes tc cc-ntpei a responsible
party tc undertake the response actions, including instances where
no settlement can be reached, the Agency will consider issuing a
unilateral S1C5 Order in accordance with this guidance.
The ad.T.i.-.istrative erfcrcerent authority .is an ir.pcrt?r.t
cer.pcr.ent of t.-.e Agency's enforcement program authorized ur.der
CERCLA. This guidance is being issued to assist the regional
offices ir. developing and maintaining an effective CrRCLA adr.ir.i-
strstive enf:rcement program. The effectiveness of the prcgr'an
will be enhanced as site remedies are implemented by Respondents
in compliance with administrative orders, end as enforcement of
Orders with whicn Respondents are not in compliance is success-
fully and expeditiously pursued by EPA. The Agency will
aggressively defend judicial challenges to Orders and enforce
instances of non-compliance to validate the CERCLA "administrative
enforcement program. Regional offices should issue Orders consistent
with the criteria and procedures contained in this guidance to ensure
the legal sufficiency of the program.
VThe $106 administrative order authority provides strong incen-
tives for Respondents to undertake expediticusly response actions
deemed necessary by E?A to ensure protection of public health or
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-4-
weifare or the environment. Therefore, Regional offices are -jrr^
to ccnsidsr the use or ur.ilitsril CERCLA sctr.ir.istTstivs crie~s
ir. every case where compelling er.for:e.7.€nt authority is n&ces-
»ary. Criteria are provided herein tc assist regional offices
in determining whether Orders are appropriate in any case. It
is essential that a balanced CERCLA enforcement program is
implemented by EPA, combining administrative and judicial enforce-
ment authorites, to ensure protection of health and the ervirrr-
ment from tre hazards of releases or threats of releases cf
hazardous subst.5T.res.
II. Rec:uirercent.s_ for Issuance ar.d Scope of Sectisr. 106 CEPCLA
Orders
A comparison of S106(a) and S~OC3 of.the Resource Conser-
vation and Recovery Act (RCRA) reveals similarities in the r-'o
sections/ and therefore many of the criteria for issuance cf e
ST003 Qrier also apply to §106 Orders.Ji/ In many situations,
either Order would be appropriate. Where the hazardous sub-
stances are also "hazardous waste" under RCRA, the Order should
cite the authority of both sections.
Section 106(a) of CERCLA provides as follows:
In addition to any-other action taken by a State
or local government, when the President determines
that there nay be an imminent and substantial
endangerment to the public health or welfare or
the environment because of an actual or threatened
ITGuidance on the use of RCRA 57003 administrative orders
may be found in a memorandum entitled, "Issuance of Admini-
strative Orders under Section 7003 of the Resource.Conser-
vation and Recovery Act" dated September.il, 1981.
-------
release cf a r.azsrcc'js susstar.ce fror a facility,
he r?yrec-ire the Attorney General cf the United
C * » » • e * *•* ee^i<^o * V T*1* ^o 1 ^ • «• » c t*i»if Ka V^AS* *c e m ^«,
to ar>et« sue.-, cancer cr threat... The President
r.ay also, after not ire to the affected State, take
s-crj scticr. i.r.c«r tr.ii scciic." inCiwC_rvj / iut net
limited tor iss'Jir.s such crcers as r.ay bt ::-^c
-------
of s -3Z2T-:•. = ?..---»r;-•' frc- » facility. A "-ac«-ric'jE
susstanc,?" is defined in Section 101 (]4) of CERCLA, ar.ri is
generallv any substance, waste or pollutant designated pur-
Ac-, Sect'.ni 3--Jl cf RC*-., Seer icn 112 of the Clean Air Ac:
Sect:or, ~ :: TSCA. cr S-r-.-tio- 122 of CE'CLA. (Cr-j.-ie oil,
are exe-oteri frcr ststjtcry c
i>'ne trier a reies.se fro-n a facility is ''actua; " or " tr.re-£:
-------
wnicr. is ebcut to overflew because cf heavy rsinfall, rrese-.t
ctvicus threats c.f a release. A. thi-eai" is el*o presented cv
ccrrcii"; cr leaking drvr.s ccr.t5ir.inc ir.cc.r.petitle wastes r.ir.-rle?
ir. a ccr-Tor. area. Accordinglyr the deterr.inaticr. of whether a
"threat" cf a release warrants issuance cf an Order is a j'Jrtrr-er.t
decision to be made on a case-by-case basis.
The nature cf both the hazardous substances present at the
site ar.c the release cr threat cf release should be set forth as
findings in the crcer, together with the bsses for such findings.
C. Necsssitv Th£t Helease or Threat cf Release ic
Frcr. a Tacil ity
The release cr threat of release jnust.be frcn a "facility,"
which is defir.ec ir. CIP.C1A §101(9) as:
(A) any building, structure, installation, equiprrent,
pipe cr pipeline (including any pipe into a sewer cr
publically owned -treatment works), well, pit, pond,
lagoon, inpoundnvent, cJit-ch, landfill, storage container,
motor vehicle, rolling stock, or aircraft, or (B) any
site or area where a hazardous substance has r>een
deposited, stored, disposed of or placed, or otherwise
come to be located; but does not include any consumer
product in consumer use or any vessel (a watercraft or
other contrivance used, cr capable of being used, as a
means of transportation on water).
This definition of "facility" includes on-shore or off-shore
sites, including land transportation facilities, frcm which
releases or threats might originate. The Order roust specify
the physical location that is the source of the release.
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OSWER f 9833.C
-8-
D. Necessity for Exlstqrce cf Irr'ir.'gr.t sr.d Subs tar : ial
iviier.ce presented to 5-p?crt the issuance of a SlCoial
order must snow "that th»re w.ey be an imminent and substantial
endangemer.t" to ?-oiic heaitn or welfare cr the environment.
The words ".-nay be" indicate tr.at Congress established a
standard of proof th&t does not require a certainty. The evidence
need net der.onstrste that an irrjniner.t and substantial endanc.er:r.er.t
to public health or the environment definitely exists. Iristesd,
an Order may be issued if there is sound reason to believe that
such an endar.gerrient nay exist.
Evidence cf actual hara is r.ct rscuirad. As the Court, stated
in Ethyl Cert:, v. JT?A, construing an endansennent provision in t'r.e
Clean A.i'r Act:-
The meaning of "endanger" is not disputed. . Ca.se
law and dictionary definition agree that endarrger
means something less than actual har^i. When one
is endangered, harm is threatened; no actual injury
need over occur. (541 F.2d i at 13, footnotes omittec,
original emphasis, D.C. Cir. , cert. den. 426 U.S. 941
(1976). )
It should also, be noted while the risk of harm must be
imminent in order for the Agency to act under 5106, the harm
itself need not be. (See the legislative history to the
"imminent and substantial endangerment" provision of 51431 of the
Safe Drinking Water Act, H. Rpt. 93-1185 at 35-36.) For example,
EPA could act if there exists a likelihood that contaminants
might be introduced into a water supply which could cause
damage after a period of latency. One must judge the risk or
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OSWER « 9833.0
li-.elihcc: ~r t.-.e r.srr by sx2-i.-.:r.= the factual c:rcurstar.c = s,
irciuiinc, Dut r.rt j;rr;:ted to: I) nature and ar.ou-,t cf the
•••^•^•-^••c e-j *r-•»-.»£ , »* -^^ • -_-t — . 2 > tr\ ^ **^*"— ^i".?1 for e v"* ^^'_' r s ^c
hur,3~s or the envircr.rer.t tc the substance, ar.d 2j the known
cr s.spectc-c effect c: the s-.-.stance cr. hur.ans or that part
of the envircr.r.er.t subject to exposure to the substance.
Legal analyses cf the concept cf irr.T.iner.t ancJ suh-stsntial
er.ia-.^err.trr.t c;r. alsc be- fc-.r.i ir. Peserve '•'.:-.:-; Co. v. E?A,
51n F.2d 4?: (eth C.r. I?"); V.S. v. Vertac Cher.icel Cc. et al,
485 r.£u-p. e~: ,'-.'. Arr.. 19ED;; U.S. v. Sclve-.ts Recovery
Service, 496 F. Supp. 112? (D. Conn. 19£2); U.S. v. Midwest
Sclver.t Pe:cverv,
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OSWER # 9833.0
-10-
aay arise, however, where rapid response at a site is necessary.
I- s-.-c.". cssss, ior-Ji.-.ca of -r. Crd=r -.ay fillcv ar, abbreviate
notice period or even a telephone call race by EPA to the
Director of the agency responsible for environmental protecticr:
in the affected state. Written cor.firmaticr. must fallow svch
telephone notice.
As indicated above, the notification should be directed tc
the Director ef the stats igency havinc j-jrisiicticr. ever
hazardous waste r.atters. A s'-g-ested fcrr. for a notification
letter is attached to this r.ercrancur. as Appendix A. This
fern also prsvides the format for or?l notice.
An "affected state" is interpreted to be the state -herr
the facility is located frorr which the discharge is btir.g
released cr threatens to be re lea-sec, and in whicr. the response
activity required by -the prcposec* artfer will be taken. In aar-
cases, this may involve more than one state, such as where the
facility is located near the border of a state and the
hazardous substances have migrated from the facility located
in one state into ar.jther state (s). In those cases, all of
the states in which the hazardous substances are found and in
which response activity may be performed pursuant to the order
should be notified.
III. ^Persons To Whom an Order May Be Issued
Section 106 does not specify any person or persons to whom
an Order may be issued, but permits the issuance of "such orders
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OSWER « 9633.0
a. J.
'.'••• £;"ic~ 104,'iiJ, hcwev2r, 72f2rs to the
"cvrer or operator" cr 'other responsible party" as the persons
t*j whom tr:« Agency coclJ look to oewc™.ine whether c-lco"i-up of
a site will be dor.e properly before expending CERC1A funds.
Section 107;a), designating those who shall be liable for
response costs, spec'iiier. present owners anc operators cf a
facility, persons who were owners and operators at the time
of disposal of a hazardous substance, and generators and certain
transpor-: rr •-•.-,:, tccorcir.c to available evidence, contributes
hazardous substances to the facility. It follows that those
sar.e persons could be recipients of an Order issued under
Section 105(a), !s«e U.S. v. Dutboarc Marine Corp., 556 F. Sup?.
54, 57 iS.D. III. 19S2). In addition, in appropriate cases,
it may be possiole to issue orders to parties other than
those listed in Section 107
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OSWER * 9833.0
-12-
1ns tne.-ne condor, to tnese factors is tnst Orders s
se iss.ec :r. ti-.rsr sit'jatirr.s :r •-•-.::.-. rcrzliar.cs vith :.'-.;
terrs cf the Order is fsisirie, i.s., '..-hsre t.w.s Bespcr.ie-rs
ar& i.r. a p^siiicn co perf-rr. trie oroer*;1 response actions
w-ithir. spscifiei ti.r.e p»rir>cs. r/.:s cses no-: r«jr £.".-. nus-.
r.ake a pre-issua.-.re ceisrr.ir.-ricn t.'ia* Respcncerts will con-
ply with an Order, but rather that compliance is practicaaie.
If the A;er.cy does not anticipate compliance with an Order it
is considerir,; issuir.;, the use cf the Order r.ay serve or.ly to
delay direct injunct:ve action under 5106 or the initiation cf
Fur.:-:" ir.ance-J response. On the other hand, the Agency nay wisr.
to issue an Order ir. any situation where the needed response a;t:-7r.
and the liability t.nerefcr are clear and straight-forward, so
that re*us*I to conply with the terr.s-cf 'the Order would r,?»., irr
all probability, be with **u.fficient cause" (CERCLA SlC7(c)(3)).
Such refusal would render cfr* Respondent liable for civil penalties
or punitive damages in the event of federal cleanup.
A. Responsible Parties' Financial Status
Before an administrative order requiring remedial work
is issued, the Agency should assess, to the extent possible,
whether the responsible party, has sufficient financial resources
to comply with the Order. Financial information is available
from' several sources:
• Agency files -contain financial information
collected as part of the identification of
parties responsible for the hazards posed
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OSWER « 9833.0
oy sites en the National Priorities List.
8 The Securities ar.^ Ixcr. s~g» Ccrr.iss icn. -'SEC) recuires
publicly tr^iec ccrtpj.-.ies to sutr.it detailed fir.arciil
«
statements. This information is puoiiciy available.
'.Consult NEIC'S .T.iT.ual entitled "Identifying Respcr.sisle
Parties" for additional information on obtaining SEC files
• Responsible parties may submit financial information
to the Agency during discussions or negotiations held
prior to the issuance of an Crcer.
In addition, NEIC car. provide further information en
Respondents fina.-.cial states.
B. Number of Responsible Parties Subject to the Order
For two primary reasons, the success of Orders fcr
remedial action is enhanced where there are relatively few
responsible parties.
1) Coordination of Response' Action
An Order issued to multiple Respondents who are jointly
and severally liable generally will not allocate individual
clean up responsibilities.V Instead, the .Order will require
the same response action to be conducted by each responsible
party. Multiple parties must organize and coordinate their
response to ensure compliance with the Order's requirements.
Thus, compliance with Orders .may depend upon group agreement
4/ However, the Agency may issue an Order to a Respondent
"requiring a response to a discrete, separable aspect of the
hazard at a site, notwithstanding the existence of other
responsible parties or other less divisible problem areas.
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OSWER * 9833.0
on *scr. r,cr.Ccr's share c: the response cos:. In a large groc-
er resporside parties, ai nay oe difficult for tne group to
develop a consensus on individual liability end perfom response
activities as quickly as r.scasstry to ij&t» :rr,:r;iner.t hazard
ccnditirr.s at a site. •Accordingly, issuing Orders tc all respon-
sible parties nay not be appropriate where there are a large
nur.ber or parties who are unlikely to agree on a concerted respor.se.
Instead, the Agency will pursue judicial remedies or consider
issuing Orders to a selected subset of responsible parties.
Even in situations where Orders are issued to a larce r-jrrber
of parti'es, Agency policy, which should be reflected in the
terr.s of the Order, is that each Respondent is individually
liable for cor.pliar.ee with the Order's requirements. Individual
l;«cility also extends to penalties and punitive dsr.a.ges imposed
by CERCLA for failure to cor.ply with the Order.
2) Superris ior.
After an Order is issued, the Agency conducts compliance
monitoring at the site to ensure that responsible parties conply
with the terms of the Order. Although no maximum number of
responsible parties can be specified as optimum, it is clear that
the Agency's oversight responsibility is most .effectively accom-
plished where there are a limited number of responsible parties.
C. Specificity of the Necessary Response Action
In order to minimize the potential for confusion between
Respondents and the Agency concerning the required response
action, Orders should be used in situations where the nature
of the required response action has been relatively precisely
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-15-
ident:f;ec. Orders' a re normally oecter suited to na
"
act:=r.s sue.-. is pla.-.r.ir.;. Ct.k.erv;ss it r.iy is difficult fcr the
.Age'ncy to supervise cerplier.ce activities, ar.c for resocr.siMe
parties to re as.-. a;reener.: on a corpiiance plan. In west cases,
infonna zicr! sufficient to describe the required respcns* actions
will De generated! by the RI/FS.
An Drier should cor.tair. the following elsnents (see
Append i.x 5 / •'
0 The steps the Respondent nust take to- ccr.pl y with
the Order?
• The effective ca*.e of the Order;
c A ir.ar.cst cry tir.e-table fir cereplet ior,
of renedial work; ar.c/ where "appropriate,
* A stateme-c tc the effect that other actions or orders
may follow.
Specific remedial action Orders benefit both the Agency and
responsible parties. Responsible parties are provided clearly
defined compliance standards which will facilitate agreement
among the responsible parties on a remedial plan. If the
responsible parties xh*n determine that the remedial work is
best accomplished by a third party contractor/ the Order provides
a basis for their contract negotiations.
-------
S;*c;fiC Crcsrs ter.^fit t-ne A~er.cy by rsducino the cif f ic'.ir
of supervisicr. and ;ucic:ai enforcement. In noncorr.pliance situa-
ti~~.s> i.k.« A^s.'.c/ ~.aj' 5c«.-. cc *r,5crci ar, Crcsr in cc«>*>> A
s~ft'""*ic C^isr ""r.'-'iies t.1".^ ccjrt »'ith .-./~eTC"~irt. lc-Ists z jZi~~
cares sy vr.;c:. ts .:«£?« t.".* respcnsiilr party's nr.-.-cc-i. 1 isnce
with its terns. Therefore, £?A should make every eff&rt to
clearly crticu.ate tre response activities required by an OrSer.
2i. Agency's Readiness to Litigate the Merits of the Ordl_»r
After the Ager-icy iss-jes an Order, the respondent nay seek
;-r;cia: review :c stay f.e Crier. Respondents may cl-.ailer.ce-
their liability or the appropriateness cf the remedy specifie-i
in tr.*r C-rcer. On the other hand, the Agency may promptly seek
tc enforce tr.e Order in court. In light of these possibilit.i.es,
the Agency must be ready to defend the Order in court at the tirre
it is issued. This means that the cite problem, the reasonable-
ness of 'the required response, evidence of liability, and the
Acency's response to issues raised by the recipient must be
thoroughly documented, and that the documentation be organized
and easily retrievable. The documentation will constitute the
administrative record for any litigation.
E. Competing Considerations
The absence of the factors listed above may argue in favor
of pursuing a judicial or Fund-financed, rather than an adminis-
trative, remedy. For example» E?A should not normally issue an
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OSMLR * 9633.0
crcer if the necessary response actions have not oeen clearly
stror.cl" c?r.sicsr "he "-ciciil ccurse c* »••»'«•• ••*«
: *.~e responsible parties nave violated provisions
in several er.vironr.^ncal statutes;
c the cppcrtunity for public comment on the terms
of a settlement agreement warrants the use of a
judicial consent decree, (where there is a 20-day
ccrjser.t pence cefore the decree- is finalized) _§/;
and
0 there is a nee.- for long term court oversight of
a settle.T.ent agreement, (such as in cases where an
agreener.r • cal Is fcr separately enforceable response
-Ei-i-lfisrcnes prior to completion of the cleanup),
V. Orders Relating to Removals and Remedial Actions
Guidance on conducting removal actions issued by the
Office of Emergency and Remedial Response (OERR) divides the
statutory concept of removals into "immediate" and "planned"
removals.
A. Immediate Removals
Immediate removal actions are to be taken only if a
response is needed within a relatively short time frame to
prevent or mitigate significant ham to human health or the
J5/ However, it should be noted that the Agency is exploring
mechanisms which provide for public comment-on both unilateral
and consent administrative Orders. Guidance on this matter will
be provided at a later date.
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9833.0
-18-
irc'.T.-sr, t > ar.d SLC.-. action w;ii hoc otherwise oe prcvi^ec
s tt-«ly rasis.
1. S^spa.is :cr. cf ac-ivi:ies whicr. aggravate ar.
existing release or substantial, threat of a
release {e.g., active use of a storage tank
judged by the OSC to be in imminent danger cf
failure).
2. Suspension of activities which interfere with
Federal renoval actions (e.g., plant traffic in
area cf cleanup ! .
2. Xover.ent cr r.cr.-ncverr.ent cf a transport vehicle
f railway tar.k car, tank truck, .tank vessel'
which is the source of a release cr substantial.
threat cf a release.
4. tfearsres to li'rcir access, such as fencing.
5. Use cf readily available equipment, owned by the
responsible party, to contain or remove a release
during the initial stages of a response be for*
the OSC is able to obtain comparable equipment
from other sources*
6. Dikings; construction, of bernts; or removal of
the hazardous substance to an approved fecrlity.
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OSWER * 9833.0
-13-
IThis list illustrates various uses for an Order; it is not an
Section lC5(a) Orders, both in iirjnediste and non-immediate
s.ic-aticr.i, r.ust contain a statement notifying the party cf
E?A's austerity er.c the liability that may be incurred by
failure to comply. AS specifically as possible the Order
prescribes the response activity and sets the date for its
completion. To ensure enforceacility of the order, EPA should
not undertake its own CE£CLA-funaed response activity curing
the period cf tir.e given to the party to respond, unless (i)
such CE'.ClA-fu-ced response activity becorr.es necessary cue to
the iirjwr.eciacy cf the release or threat of release or (ii) the
Respondent fcrr.-.ally and unequivocally states an unwillingness
to comply witr. tr.e Order. In the event the party -undertakes
response activity, the OSC should remain on-site to ensure
that the work is being conducted in accordance with the Order.
B. Planned Removals .and Remedial Actions
Planned removal situations are those that allow several
days or weeks to execute the response. Remedial actions/ on
the other hand, are generally those intended to provide a
permanent resolution to the release and require a longer tine
and more expensive efforts to implement.
As in the case of immediate removals, an Order is available
to compel response measures-routinely taken during planned removal
and remedial actions. "Removal activity* includes assessment
programs to evaluate the nature of the problem, and removal of
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9633.0
nateriai fro* the sice. ""erecial actions" are those ccnsiste^t
-•it.1-, c p?rrz-:-t ri.-.;;f..-. a.-.i :.-. c'. „ .f 5 s-c>. c-^ivLty as cd^pi.-., '.:-;
sr?a, trsr.chir.g. sn = rrcvisis- ?:" :n alterrst? water supply.5 '
I?.Vs pos;x;~n is'that any activity trat the Governs-r.t right
undertake at a site - fror. pj.anr.xnc a.r.d snudies to cc~?l«t«
cleanup-could r>s ordered pursuant to §106 (a). Of course, the
issuance of more than one Order may be necessary if the cleanup
is performed in stapes, or if additional responsible parties
become known to I?.- wh.o siouid participate in the cleanup.
""• * P-cces.jres for Issuance cf §IO€'a) Orders.
C£RCi-A oesignates the President as the primary c'fficial
responsible for taxing response and enforcement action ur.'ier
the Act. The authority to issue adr.inistrat ive orders under
J106(a) has been etrlegated to tJie Administrator of EPA by
Executive Order No. 12316, and redelecated by the Administrator
to the Regional Administrators-and the Assistant Administrator
for Solid Waste and Emergency Response (AA-OSWER). The RAs and
the AA-OSWER must consult with the Associate Administrator for
Legal and Enforcement Counsel {AA-OLEO prior'to exercising •
this authority, and the RAs must obtain advance concurrence from
the AA-OSWER. (See Delegations Manual: 14-14.) The AA-OLEC has
ySee $101(23) of CERCLA for definition of "remove" or "removal",
and 5101(24) of CERCLA for definition of "remedy" or "remedial
action". Those definitions contain detailed examples of the
types of activities that fall within these categories.
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OSWER * 9833.0
-21-
re-ciejetc; t.ic ccr-.s.'-ta^.cr authority to the Associate Er.force-
nen- Counsel-Waste arc tne Regional Counsels. The AA C?v.'E? .'•as
reiel»j?t=- "is s~.vsr.ce cci*c»rr;T."C5 a_'t~.cri tv t7 the T-ir^ctcr,
Office cf Ksste ?r=-rar.E t'r.f trce-jr.t (OK?!). Tns Office cf
Wa£t« ?ro;;ra-s Zr.:orcer an expedi-
tious sr^ei'^ie, w.'-.icr. wii; perr.it the- to initiate ani issue
legally a.id technically adequate adrrinistra: i ve orders with
only prior notice to Headquarters.
A. Planned Removals and Rer
-------
trar.srits .:.w.s r.i;i.-:al 12 ci-.e Cffice i: '.>asie Fro^ra-^s Enfsrce-
~.cs."i .fcr r«r»;c» &.".; ccncurrcr.Ce. Nocif ica;ior, cc cr,«s State
of our inter.', to issue the Order s.hovJrJ be accomplished orally,
er.i fs:ic~-ei up iy fr.rrsl xrit'.ar. r.ctic*.
Ajeney priicy is to offer parties to whom EPA has issued a
unilateral flOo Ocier an opportunity to confer with tr-« Agency con-
cer-.ir; the artr^pr :ate-.-:-ss cf its terras ant! its applicability to t.u,s
recripier.t . The cnr.fersr.ce will help L'?A ensure that it has
basei its Crier or ccrplete a.ri ace-rare i-.f rr-a t ior. sv.' help
EPA and Respcr.'Ser.ts re?ch a co.rrron uncJerstand: rsc of ho- the
Drier sh;_'.i ^e ir.plevs.~tei cr modifiei. The procec-res for
«xercisiri5 this cpticr- -are corwr.unicated to respondents through
the text cf the Orier itself. (See sar.ple Order, page 4 of
Appendix E. )
A. Planned Rene va Is and. Rer-?c5ial Actions
Each Order will specify a date when the Order becomes
effective. For actions other than immediate removals/ the
effective date should ordinarily be twenty calendar days from
the day the Order is received by the Respondent. Certain Orders,
such as those requiring that long term remedial actions be taken,
nay warrant a no re extensive examination of the facts. In such
cases, the Order nay specify an effective date more than twenty
days removed to permit the Respondent an opportunity to discuss the
Order with the Agency beyond that accorded by the procedures set
forth in Subpart C below.
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* 9833.0
-23-
I; i.-. ;- '.«;.- : :.~=".t B-^-.S tc ccr.f^r --itr, tr.~ Acency a-.--.-:
£•"•* Crier, tr.s resrr~.c-s.~t rjst prc-vide vritte- -ctif ics t ;r-
cc t.~.e £r.-. crricisl listed ir the Order withir: ten calerTdsr
£ni heic as s.?-r. :-. ; •.-•=4f rer as crsCticable- but prio* tc
csyE frr- t.ie -ate t.".e-0rier was received by the Sespcr.ze-.t .
B . £~g7~c-;y 5lt'J£tiC"5
T.*:e applicatie tir.e periods for the effective ciate cr.d
frr request;"; & c-j-fere-re ray re shcrtenfrd. (e.g., tc ~:
a^d 4: hcurs respect ively ;, cr t.uie conference procedures ray
ce el :r: rated er.t:rely. if t~.e ir.-ediacy cf the hazard pcsed
fcy a site ar.c cnner s:r rc-.--.d; ~c circur.s tances . sc warrant.
.Ir. the fcrrer s;f-2t:f., the Order sho-.-lci perr.it the Pespcr.de-.t
tc reqyes.t e ccr.ferer.ee c-raliy, later followed i>y written
not if :ca t :cr. .
C . Conference Procedures
The conference w:ii normally oe held at the appropriate
EPA Regional office and will be presided over fcy the Regional
Administrator's designee. However, other arrangements may be
agreed to for the sake of convenience to the parties. At the
conference, EPA should be prepared to provide the Respondent
with information sufficient to explain the basis for the Order
and to promote constructive discussions. The Respondent will
have the opportunity to ask questions and present its views
through legal counsel or technical advisors. The schedule and
agenda for the conference will be left tc the discretion of
the EPA official leading the conference, as long as the Respondent
-------
OSVER # 9833.0
'-S*. be prepared, s:"ed ;y t.-.s Are.-.ry official
-c preside- ever
A desert? tier, ci' the major inquiries made and
views offeree by the Respondent co'jtestir.;
I- adiiticr;, tr.-: -.resi-ing official must prepare a statement
ar;-.T.c.^ts raised by -he ?eszc--
de~t a.~.i which recc-.~e^:s whether anJ how the ~rder shculc be
r.odifiei/ tc=-:-tr.^r -;t.-. the rc-3£=r.3 therefor.
2 ' Mc-:f Jgat:cr. , ?e.vocat:cr, or Stay of the Ors'er
Based tpcr. » review of the file upon which the Order
initially was based, any probative information or argument
proffered by the Respondent fcllo^in; receipt of the Order,
and the recommendation of the presiding official, the issuing
official may modify or revoke the Order. Any modification to the
Order must be communicated to the Respondent as part of a copy of
a written statement containing the elements listed in Subpart C
above. The original should be kept in the Agency files along
with the evidence supporting the order* copies of written
documents offered in rebuttal by the Respondent during the
conference, and a copy of 'the request for a conference.
The issuing official may also 'stay the effective date of
the Order if the conference process could not be completed
-------
QSWER * 9833.0
-2£-
-;;.-;.-. :.-.= sp^cifi?:: tir.e per; = c. refers substantially mcc'ifyin;
or rrvcf.;.-.; a- C-rcer, t*e ;ss.i" c-r:;ci£l r.jst ccr.s.lt wit.-.
thc appropriate Heac~carters cr ?.er:on a} cour.sel err? ?"ta:r the
VII : . ?rccfd..-e If Crc'cr :s Not Obeyed
In the fcver.t the party to whorr the Orcer is issuei does
not comply with its terms, the Agency must quickly cecide
whether to atter.pt to enforce tr.e Order by referrir.-. the cese
to the Depirt.^e^t cf J-stice for filing of a suit to force
compliance, cr whether to ur.certaKe cleanup cf the s:t-= by
use cf CEF.CLA fjn-is, ar.= then file sjit acairst the party f^r
re i.T^urserr.er, t of the costs expended plus statutory penalties
for failure to cor.ply with t.ie Order.
The detsrr,:nat-iori cf which action to pursue depends
on the type of response action to be taken. Obviously,, if an
in-ediate rer.cval action is required by the hazard* at the
site, EPA will clean up the site and attempt recovery of costs
and penalties in a subsequent recovery action. The same course
of action applies to a planned removal where the removal acticr
must be quickly undertaken and cannot await the filing of a
suit. However, planned removal or remedial responses which
require an extended period of time to perform, and in which
initiation of action may be .delayed for a brief period without
jeopardising hunan health and the environment, may allow sufficient
time for the filing of a suit to enforce the Order, or at least
that portion of the Order which calls for the planned removal or
-------
OSWER * 9833.0
•*-ed:al actior t? ire ta-'.e-
p *" - ~ .i •» t> c c»*»t^ — fc^ t^* ai-^«ja^£fi £ *" ~ * l* A ^'nS^C1'*^ * " • !•'*«_* ** £ *"i
w.-i:c- cptisr. re p-Ts^e i.? initially ce be Tact ty tne necional
Air.ir.is^rstor, ir\ the sane rr.ar.ner ar.c using the sar.e procedures
as previously prescribed for any other enforcement action. The
Regional Air.i-.istrator' s reccr.-.enif.t ior is ther. for~ar^ef tc
Headquarters for artier..
IX. Nets cr. ?-j.r;sse ard 'Jse cC T^is Xercrar.fu-
Tr.e pciicy and procedures s*t forth herein, an-: internal
ofrice proced-res adopter pursuant heretc., are intended solely
for t.ie g-:dance of attorneys arc" other er.p-loyees of the U.S.'
Environmental Protect ion Ajency. They are not intended to ncr
do they constitute ruie-makin; &y the Agency, and may not be
relied upon to cr»ite a right or benefit, substantive or pro-
cedural, enforceable at law or in equity, by any person. The
Agency may take any action which is at variance with the
policies or procedures contained in this memorandum, or which
is not in compliance with internal office procedures that may
be adopted pursuant to these materials.
Attached to this memorandum as Appendices A and B are
• A sar.ple letter to a state providing notification
of the Agency's intent to issue a $106 Order; and
0 A sarr.ple Order.
-------
OSKER * 9833.0
I: VCL r.£ve ary C'jestior.s or rrc-Le-s concer- i"? a--
' 222-431 4 ', cr "--ssel*. E. Selr.en ( 4 26-^503 ^ 7r S
•:2ci-4: :-r .- rf tre 0:f;:£ c: Le;&: sr.-j £-,f sr:«r:er.
*a-
-------
OSVER.f 9833.0
.-.pp« r.c i x
iTATE NCT:? iCATr
State Agency
~ • «« • e * •* ** r ~ T—*»*»"'*•• — ^.» *i* f~ **. ~ •* ~ ** '
*• * » * W • ^ - ' «•• •».*••»»«•••..••«••• WStf-t •»<»«*
Dear Mr. Jones:
Enclosed for your inferratic- is a cc~v of an orcer
[stamped "D-AFT" and "CONFIDENTIAL"] that the Agency intends
to issue on or after _ ..('rate! , to tr.e XY2 Company", pursuant
to Section 106(a^ of tr.e Comprehensive Environmental Response,
Compensation, and Liability Act of 1950, (42 USC 56C6). The
order requires certain activities to ~e taken at tr.e company's
site located at [location; . Please refer to the enclosed
copy of tr.e, proposed order for the specific actions rec-irsc
of tr.e company and the time within wr. icn such actions m.i;st
be taker.. If you have any comments or c-esticns concern.:.-.;
the order, please contact' [£?A official]' at [office] .
Sin-cerely yours.
Assistant Administrator for
Solid Waste and Emergency ..sesponse
Tor]
Regional Administrator
[or their designees]
Enclosure
cc: Honorable J. Smith, Governor
-------
OSHER * 9833.0
Appe-dix 3
m MA
UXZTZD ST-.TrS i'
In The Matter Of
•Sane of Person,
Firm or Corporation)
Proceeding I'ne'er S«cticr; 105 fa) of the
Ccrprer.ens ive E-.v: rcr.-er.:al Resror.se,
CcTspersat ion and Liaoiiitv Act c: 1960
(42"'JSC Sect:c.-. SSCSra)!
Docket No.
The follcwinc Crier is
anc address of rerson, firr,
issued on this date to
cr corporation, along v
(insert r.ar-
r a
nane or pi'ace c: ousiness if tne' Respondent is not the owner
or operator) ('"Respondent (s)"), pursuant to 5106 (a) of the
Comprehensive Environmental P.esponse, Compensation and Liasilitv
Act of 19SO (CERCLA) .{42 USC 9606(a)), by authority delegated tc
the undersigned by the Administrator of the United States Envi-
ronmental Protection Agency (EPA). Notice of the
this Order has heretofore been given to the State
issuance o:
of
There is an imminent and
public health and welfare and
of a release)(release) of (a)
in $101(14) of CERCLA (42 USC
location (the "Facility"):
substantial endangerment to the
the environment due to a (threat
hazardous substance(s) as defined
9601(14)), from the following
(insert legal description, if known;
otherwise, use street or route address)
Jhis order directs you to undertake action to protect the public
and the environment from this endangerment.
FINDINGS A.VS CONCLUSIONS
1. (Choose one or more of 1A through IE, as appropriate under
the factual situation of the case. Do -not include headings.)
-------
wr-.gri- r.espor. cent is now, anc has beer since
fieG rro,7. tsc^rce c: i nionr.ation t I.
IB. '(Fcrr^er cw*»*r/o*t"?*5tcr) •• Res^o
. • . *?•-- • ;•.—;*r! ' 2r,- :r^r
~e Facilitv, as c^r-srrr..r.ci f rcr. (sour it «* -nfor^etior.
h-sre-.r., were c:s?ss*c c: fei tr.e facility. P.sspcr.ser.t sric cr
ctr.sr«'is« trar.sfsrrei ar.c rcr.veyei t.^.e ?aciii*y to
cr. , 15 , acccri:.-.- tc (proper^/ recprcs-T^
1C. '[(Generator) - Respondent (disposed of) (arrangedr by con-
tract or agreement, for the disposal or transport for disposal)
of hazardous substances'ac the Facility as determined frorr
(source/;.
1Z. [ i Transporter) - Respsr.cer.t chose to ftccept hazardous
substances for transport 'tc, and disposal at, the Facility as
d€:err:.-.ed frsr (scarce;].
IE. [{Other Party! (Insert reasons why ordered acric-.s are
necessary to facilitate the abatement of the hazard/ prevent the
a;;ravaticr: of the hazard, cr otherwise protect the purl:c heslt.:
and we.far* a~d/cr the envircr.r.ent. ) ]
2. (Describe the nature of the facility.)
3. On or about tlr« . day of , 19 ,-an
inap»ction of the Facility was conducted by (names) .
(a) duly authorized representative (s) of (EPA, State ajer.ry).
At the time of that inspection, the inspectors observed the
fcll.ow:. ng conditions existin; at the Facility:
A. Approximately 1COO drums of liquid', seni-solid
and solid material, which were leaking, without
covers And in various stages of corrosion,
rusting and other deterioration, located directly
on. the ground. Material leaking from said drums
was observed running approximately 2S yards
across- the site into Crystal Creek, which adjoins
the Facility* and which is a, tributary of Pristine
River, a navigable water. According to records at
the Facility, materials contained in the drums
include:
(describe hazardous substances)
B. An area in the Facility (the "Landfill area")
of approximately four (4) acres in size,
without vegetation, from which leachate was
-------
OSWER * 9833.0
observed flowing approximately forty '40) yards
2! Cr-r"~«. Ve--static.*: hs? beer, kill**!
hsi beer. ^ii-TiL." ir. the I* f •*!*!£ il'1 sre£:
rlist hazardous substances-
;-&r. cc.-.tir.-e vi;r, the ft..j.ovir.5 5
At t.K.e ti-e of the inspect i = r., sar.pies cf thr dr-r.nfli
waste, sanples of the leachate from the Landfill area, and
samples of (sell, surface water, croundwater, air, etc. ) were
obtained by the inspector(sI.
4. An ar.alvsis cf t-v;e sar.?]es tahen at the tir* cf the ir.spec-
tior. cJisc'.csec tne presence at the Facility cf the fcllowir.;'
suDstances in the concentrations set forth:
(list hazardous substances and concentrations
confirmed by analysis - then continue with
following sentence)
Th«»sc substances are "hazardo-js substances" as defined ir.
flDl(i4) of CCRCLA, and are sut,;-»ct to the tenss and provisiors
of tnat Act.
5. The hazardous substances described above are treated or
disposed of at the Facility in such manner that they (are being
(threaten to be ) released and discharged from the Facility into
the (soil, groundwater, surface water, air, etc.) and other
parts of the environment.
6. (Describe population or environment at risk and route of
exposure). Exposure to said hazardous substances may cause
illness, disease, death or other harmful effects to plant and
animal life and humans.
7. The (release) (and/or) (threat of release) of said hazardous
substances may-present an imminent and substantial endangermnnt
to public health and welfare and the environment.
8. In order to protect human health and welfare and the environ-
ment, it is necessary that action be taken to contain and terminate
the (release) (and/or) (threat of release) of hazardous substances
from the Facility into the environment.
-------
OSWER # 9833.0
• * •
fact, it is neresy uro?rec arse Directea tnat:
,r::~7£ - the r.esrcr.ier.t r.ay ir r--'sr9d to uro«»rtak*
2 f^V ^£c"~^**p« ?'?**ft*t"-* t ^ * *" 7*!2** **D ^•"•«»**~e*i • ~-
protect public hsaltr. , welfare and tr.e environment,
incljcirsg, rut r.ct l:r,ited to, tr.cse actions w.-. :cr.
(Insert here the response actions whicn EPA directs
the Respondent to ta^e at the site. Each activity,
(:.*., r?-r-jrr:r:^ cf waste, ccnstr-jct icn cf fer.cirr,
Ievess» su.r*"i££icr. cf pla~s frr i rsst si laticr: cf
nor.:tcrir.c wells, etc.), and the date fcr coTpliance
with each activity, she-Id be listed separately.)
(Insert a staterer.t to the effect that other orders
or action may followl )
^»«»^"*««»"« ^ % «.» A ^ *\/> •»«••• t« » m*ij OT».« /*^h..*«Bk
C.J^»^-»i. ^.-i.i. ~ U r r >.-'.". . - . » « ^ y ^w L w/ . « r — ."v
This Order is effective crs the tvientieth calendar day
foliowir.5 receipt thereof by Respondent, and all tines fcr
performance cf response activities shall be calculated frcn
that date. (Note: For ir.njediate removal situations, the
effective date will be considerably abbreviated.)
may, within ten calendar days after receipt of this
Order, request in writing a conference with (Official) to
discuss this Order and its applicability to you. (Note: For
immediate removal situations, the time for requesting a hearing
will be abbreviated. In addition., the Respondent should be
informed that he or she nay make an oral request for a con-
ference, to be followed up by written notice within two. to
three days. )
At any conference held pursuant to your' request, you may
appear in person and by attorney or other representatives for
the purpose of presenting any objections, defenses or contentions
which you nay have regarding this Order. If you desire such a
conference, please contact ( name, title, address and telephone
number of EPA contact) within the time set forth above for
requesting a conference.
-------
OSWER * 9833.0
resc.'-.r-s ~ •. is ~ -.vise'"1, tr.at willful viiiatiir cr failure ^r
V a + ~ ^ .-»«-'• r «^.^*-«....a- C^»? • - *
•---»- •*" ^- — r*. ^*" -..*--» - -•_...
rr i"/ ucrtic- t-.erscf, »i-.~ L~
3 -I':..;, -i" ^ Cr'.'Sc» " = ;•' i-^J-rCI j ^-i -JuCir y 1C ~ • ~ r •' 2 ) of CE.-.CL-,
(42 I'.S.C. S56rj7 (c: M 3', ) , to liability for por.itive rtanages in ar
anounc up to tnree tines the amount of any costs incurT*-*.
by the gcver r-.r.ent as a result of your failu-re to ta/ie proper
s c 11 o r..
WIT!«£bj ry r.anc ir, trie City of
or. t.r::s c = v of r 15 .
UNITE::) .STATLH ENVIRONMENTAL pROTrrrr.T.v
-------
OSWER * 9834.0
USB,'
UNITED STATES ENVIRONMENTAL PROTECTION AG£\C'
WASHINGTON DC 2046C
JAN 26 IS84
M E M 0 R AN D '_'• M
SUBJECT
FROM:
Releasing
Identifies of Potentia
Parties in Response to
Responsible
Director
Programs
Gene A. Lucero,
Office of Waste
Kir* F. Sniff
Associate Enforcement Counsel
Office of Enforcement and Compls'nc'e
Mor. i tt r : n,:
Waste Management Division, Reg:o-.s I
Office of Emergency 6 Remedial Response, Region ::
Region III
Directors,
Director,
Director, Hazardous Waste Management Division,
Directors, Air & Waste Management Division,
Regions IV, VI , VII ,' VIII
Director, Toxics & Waste Management Division, Region
Director, Air & Waste Division, Region x
Regional Counsels - Regions 'I - X
IX
PURPOSE
This memorandum, states the policy of
requests under the Freedom of Information
names of potentially responsible .parties
EPA for responding to
Act (FOIA) for the
PRPs) at CERCLA sites,
II
BACKGROUND
On March 30, 1983, EPA issued guidance on releasing the
identities -of potentially responsible parties under CERCLA.
This guidance provided for case-by-case review and discretionary
disclosure of the identities of PRPs in certain limited circum-
stances. In general, before the March 30 guidance, EPA did not
release the names of PRPs in response to FOIA requests.
On June 28, 1983, the Federal District Court for the
District of Columbia decided in Cohen v. EPA that EPA had not
met its burden of establishing that disclosing the identities
of PRPs would harm the Agency's enforcement efforts. The case
involved EPA's decision to withhold the identities of potentially
responsible parties as provided by FOIA exemptions under 5
U.S.C. SS552(b)7(A), 7(C), and 5.
The court granted the plaintiff's motion for surrt-nary
judgment on finding that:
-------
ir. « 96 3-;. C
1 . Frr Ixer.pt irr. "''A. -- retire letters are investigatory
records compiled for law enforcement purposes, but EPA did not
establish tr.at disclosure ef tr.e notice letters wo_li --arr the
investigation;
2. For Exemption "? ( C ) -- the identities cf the PR?s
who received retire letters does -.ct fall into the catejorv of
a protected privacy interest; and
3. For Exemption 5 -- notice letters are nc: prececisional
documents .
III. POLICY
As a result cf tne Co he-. decision and the Adr.ir.istrator ' s
policy of conducting business in a more open a tmcsphere , and
in lijht of the resource derar.ds involved in caso-oy-c2S =
review of the nar.es cf notice letter recipients, the ••'.err- 3-7,
1983, guidance .-.as beer, reeva 1 us tec . Tne new g -:.-. = r. c c- i ~ set
for en re lo-« .
1. I- response to a "CIA request, EPA will release the
r.anes of ??.?s wr.o have received notice letters aoo;;t a CtFTL-. site.
2. .-.->. exception tc the policy cf disclosing the nares cf
???s wro received notice letters may De made only when E?.-
deter- :-.es t.-.at disclosure c: a particular name will cause s-ch
inte rf erence . wi th an ongoing enforcement proceecin3 that
discretionary disclosure is clearly unwarranted, if '-:?A deci-es
to wit.hnold the nane cf a P'RP wr.o received a notice letter, EPA
must support the conclus ion • that disclosure will causa substantial
harr. to tr,c- law er.f orcer.er.t proceeding in writing w;tr. concurrence
by the P.c-gional Counsel. The written documentation .-nay not
corrsisr of general statements; it must include the particular
facts relating to the specific PRP and site that led to the
conclusion to withhold.
3. The names of parties who have not yet received 'notice
letters nay be predecisional and therefore exempt from disclosure
under Exemption. 5 of the FOIA. These names also may be exempt as
investigatory records under Exemption 7(A), However, in its
discretion EPA may release this material.
4 . Although EPA usually will release the names of PRPs
only irn response to FOIA requests, the Agency may elect to
release the information on its own initiative in appropriate
circumstances .
5. Disclosure of the names of PRPs and the nanes of sites
does not constitute a waiver of EPA's right to withhold other
information developed for an enforcement action that EPA determines
is exempt frcn disclosure. Even if information is exempt from
disclosure under Exemption 2, 5, or 1 of FOIA, EPA has discretion
-------
OSWER * 9834.0
-3-
release the inf ormat io-. ; however, E?.-. may exercise its discretion
release tne information only after the appropriate Regional Counsel
views the information to ensure tr.at disclosure will not interfere
th an enforcement action.
to release the
to
reviews
wi
IV. PROCEDURES .13 IMPLEMENT POLICY
EPA Headquarters or a Regional Office snouid fellow the
procedure below to respond to a FOIA request for the names of
FR?s or ctr.er ir.f ormat 1C", arout a CIRC LA site.
1. Quality assure the list of PRPs regularly and particularly
before sending notice letters to PRPs for a site. Perform an
in depth quality assurance of PR? lists every 6 months. Headquarters
will hold Regional Offices acccuntaole for
assurance cf ?R? inf orrr.a t icr. .
2. Immediately notify Headquarters whenever a Regional
Office decides, in accordance wit..-, the guidance in I tern IT T.I
aocve, tr.at disclosing tne name of a PR? will cause substant :al
harm to an enforcement effort. Regional Offices also snouid
notify Headquarters if withholding a namo is no longer required.
3. If additional information is requested aoout a PR? cr
a site, consult witn the Regional Counsel for a decision or.
whetner disclosure will interfere with enforcement at the site.
4. Suomit the list of names, or names and information, to
the requester with a brief explanation of now £?A Defines PR?
for -purposes of send in; notice letters.
5. Include with the list of names tne following disclaimer:
This list represents EPA's preliminary findings on
the identities of potentially responsible parties.
EPA makes no assertions that parties on this list
are liaole for any hazard or contamination at any
CERCLA site.
6. Use the term "potentially responsible party" in
responses to FOIA requests if none of the parties named in a
notice letter has been found liable by a court.
V. FIRST RESPONSE TO FOIA REQUESTS
Ten working days after the date of this policy, Headquarters
will respond to the current backlog of requests for all PRP names
with the quality assured list.
Any Regional Office that intends to withhold any PRP names,
as provided by Item III. 2 above, must have completed the required
documentation and notified Headquarters before the FOIA response
date. If you have any questions about this policy, contact
Susan Cary Watkins {FTS 382-2032).
-------
* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
r./ WASHINGTON. D.C. 204*0
OSWERt 9833.1
F£B 2 I 1984
• OLID WASTC AND (MtKOINCv KtS'ONSE
MEMORANDUM
SUBJECT: Issuance of Administrative Orders for Immediate Removal
'Actions
— be _ \A—^ . -. _
FROM: ALee M. Tholes
Assistant Administrator
TO: Regional Administrators, Regions I-X
Air l Waste Management Division Directors
Regions III, IV, VI, VII, VIII, x
Waste Management Division Directors, Regions I, V
Director, Office of Emergency and Remedial Response, Rejjon II
Toxics and Waste Management Division Director, Region IX
Environmental Services Division Directors, Regions I - x
Regional Counsel, Regions I-X
This memorandum sets forth guidance on issuing Administrative
Orders for immediate removal actions under CERCLA. This guidance
should be.used in conjunction with the .recently issued Guidance
Memorandum on Use and Issuance of Administrative orders under
Section 106(a) of CERCLA dated September 8, 1983.
Since becoming the Assistant Administrator, OSWER, I have
sought to implement a "balanced" CERCLA program which uses both
the administrative and civil judicial enforcement provisions of
the Act--as well as the Fund—to secure clean up of hazardous
waste sites. One of my primary enforcement goals is to increase
the use of Administrative Orders for immediate removals. Orders
are particularly useful in immediate removal situations, since
they can be issued quickly, can require discrete segments of work
(e.g., surface cleanup) and carry the threat of additional damages
and penalties in the event of non-compliance.
We estimate that Administrative Orders may be appropriate for
a significant percentage of immediate removal situations. Increased
resources will -be provided to the Regions, and I expect the Regions
to devote resources to accomplishing this goal of increased
Administrative Orders for removals.
In addition, the Regions must develop a satisfactory
organizational structure if the Administrative Order program is to
succeed. The organization of enforcement personnel varies among
the Regions. The'majority of the Regions keep their "remedial"
and "removal" personnel in different divisions. Since CERCLA
enforcement has (until now) concentrated heavily on remedial
sites, most regional technical enforcement personnel have been
assigned to the remedial response units (generally,' the Air and
-------
OSWER » 9833.1
-2-
Hazardous Material Divisions), personnel responsible for immediate
and planned removals have usually been assigned to the Environmental
Services Division which, as a general rule, has not been assigned
enforcement personnel.
Obviously, the ability of a Region to implement this new
policy requires both close coordination among the immediate
response staff and their colleagues in the technical enforcement
and regional counsel offices and an organizational structure
capable of developing and issuing quality orders. Regions that
do not currently dedicate technical enforcement staff to their
immediate removal program should assure that appropriate personnel
are in place in the technical enforcement office to implement this
policy and to handle the workload.
I . BACKGROUND
CERCLA identifies two types of response actions for which the
Fund can be used: removal actions and remedial actions. The
National Contingency Plan (NCP) further refines the former category
into "immediate" and "planned" removals and describes the process
and procedures for proceeding witn these forms of response. (See
Federa* Register 31180; July 16, 1982). Please refer to the attached
appendix for an outline of the relevant CERCLA and NCP provisions
regarding removal activity, Administrative Orders and enforcement.
Because of the large number of sites which pose a health hazard,
the office of Emergency and Remedial Response (OERR) defines the
category of immediate removals according to the immediacy and
severity of the hazard to the public health or environment. These
categories establish a guide for the purpose of assessing the
length of time within which the Agency must respond to the event.
Agency response to situations which require immediate response
(e.g., threats of fire, explosion or spills) normally takes place
in a natter of hours or one or two days at the most; Agency response
to other situations (e.g., rusting barrels that have not yet
begun to leak, holding ponds that may overflow with the advent of
the rainy season) normally takes place during a period which may
range from a week to a month.
This guidance is most applicable to the latter situation; i.e.,
the Regions should consider issuing AdministrativT~Orders in situations
when there is at least one week between the tine the On-Scene
Coordinator (OSC) determines that an immediate removal is warranted
and the tine that actual on-site response must begin.
Administrative orders are a useful enforcement tool in these
types of immediate removals situations, for the following reasons.
First, they encourage private party res-ponce, particularly since it
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-3-
is OSWER policy to meet, if at all possible, with responsible parties
after the order is issued if a meeting is requested. The results
of an OWPE analysis of 49 completed immediate removals indicate
that the elapsed tine between the request for funds and the start
of site response ranged from eight days to more than three weeks
for 24 of the sites. This clearly indicates that there is tine to
issue Administrative Orders in appropriate situations, and the
process described in this memorandum can be implemented in as
little time as a week, if necessary. Second, removals require
discrete units of work (e.g., barrel or contaminated soil removal)
which make's responsible party compliance and Agency compliance
monitoring easier. Third, the costs of immediate removals are
generally moderate; this increases the probability of private
party compliance.
In the event of non-compliance with an Administrative Order,
the Agency i-s prepared to quickly initiate a Fund-financed response
and seek fines/treble damages from the responsible parties, since
the treble damages will be based on the Fund dollars expended, these
situations are particularly amenable to establishing treble damage
claims, which the Agency will seek to recover in its $107
cost recovery actions. (The average obligation for 110 prior
immediate removals undertaken by the Agency was approximately
$275,000). Issuance of Administrative Orders for these situations
also may improve the equitable position of the Agency in subsequent
cost recovery cases.
II. CRITERIA FOR ISSUING ADMINISTRATIVE ORDERS
First, of course, the Agency must meet the legal threshold
that an imminent and substantial endangerment to public health or the
environment may exist.1 Information which can be used and evaluated
by the OSC or his supervisor to make this determination include:
1. Notification In accordance with CERCLA $103 (a), (b) or (c)
2. Investigations by government authorities conducted
pursuant to CERCLA $104 (e) or other statutory authority.
Agency must be able to properly document and justify both its
assertion that an immediate and significant risk of harm to human
life or health or to the environment exists and its choice of the
ultimate response action at a site in order to be able to oppose a
challenge to the Order and to successfully litigate any subsequent
cost recovery action. Adequate documentation consists of photographs,
samples, monitoring or other documented site analysis. The Agency
should follow chain of custody procedures to maintain the integrity
of samples taken at the site. Please refer to the Cost Recovery
Guidance, issued August 26, 1983 for more detailed guidance. The
Revised Superfund Removal Guidance to be issued in late February
1984 will also provide additional guidance on immediate removal
assessments.
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-4-
3. Notification of a release by a federal or state permit
holder when required by the permit.
4. Inventory efforts or random/incidental observation by
government agencies or the public.
If the facts reach the legal thresholds of CERCLA 5106,
several policy criteria for deciding whether to issue an Order
for an immediate removal should be considered. The first of
these is the amount of time available before site response must
begin. This determination will usually be aade by the OSC. An
Order may be appropriate if there is a minimum of one week available
for issuing the Order and meeting with the recipients (see
further below) between the tine of the decision to seek funds
for the immediate removal and the initiation of on-site response.
(Of course if an order can be issued-in less than a week the
Regions are not bound by the 'one week minimum". However, the
Regions should always attempt to have 48 - 72 hours available
for the recipients to request and conduct a conference.)
A second policy criterion is the number of potential reci-
pients of the Order and their financial viability. There should
be a "manageable" number of responsible parties and they should
be collectively capable of undertaking site response. The Regions
will use their best judgement to decide what constitutes a
"manageable" number of responsible parties and assess the capability
of the parties to undertake the response for any individual
immediate removal situation, (For a more lengthy discussion of
criteria to consider when issuing an Administrative Order, please
refer to the Administrative Order guidance.) When there is a
large number of potentially responsible parties, Orders need not
be issued to all of the parties. In this type of situation the
Region should issue the Orders only to those parties most likely
to comply. The Region, however, is not precluded from issuing
Orders to all the parties if it so desires.
These cr'iteria are to be used as general guidelines for deter-
mining whether an Administrative Order should b* issued for an
immediate removal. The varying factual circumstances presented
in any potential removal action mandate that each Region conduct
this necessary factual analysis to decide the appropriateness of
an Order.
III. PROCESS FOR ISSUING ADMINISTRATIVE ORDERS
The timely development and issuance of Administrative Orders
for immediate removals will require effective coordination among
the OSC, technical enforcement personnel and the legal counsel
in both the Regions and Headquarters. OSWER will not dictate how
the Regions must organize or adjust personnel in order to
accomplish this task, but it will expect the Regions to have a
system in place which is capable of implementing an administrative
order program for immediate removals.
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QSWER t 9833.1
-5-
The procedures for developing and issuing orders follow:
The decision by the OSC or his superior to request funds for
an immediate removal also triggers the process for deciding whether
to issue an Administrative Order.
The OSC will inform the technical enforcement branch (or other
appropriate enforcement personnel if no separate branch exists)
and the Regional Counsel that a request for a Fund-financed immedi-
ate removal is being developed. Appropriate personnel in OERR and
OWPE should also be informed of this action. While the OSC and his
staff prepare the 10-point document,2 technical enforcement personnel
and the Regional Counsel should begin to identify responsible
parties and assess their financial ability to conduct site cleanup.
The OSC or the Regional Counsel will attempt to orally contact
(with written follow-up) potentially responsible parties in order
to secure private-party response in lieu of the Fund. While previous
Agency policy was to proceed with Fund-financed response if the
responsible parties refused to act, the Agency will now issue
administrative orders in appropriate circumstances before initiating
Fund action, so long as the site does not pose an unreasonable
risk of harm to the public health, welfare or the environment.
Regardless of whether a responsible party agrees or not to
undertake the removal, development of the 10-point document should
proceed as usual. However, the OSC and technical enforcement staff
(in consultation with the Regional Counsel) shall apply the criteria
outlined in Part A (above) to' recommend to the Regional Administrator
whether to issue an Administrative Order. The decision to issue
the order rests with the Regional Administrator, subject to the
current delegations.
If the Regional Administrator decides to issue an Administra-
tive Order, the Order will be drafted by technical enforcement
personnel 'with the advice of the Regional Counsel. The technical
information contained in the 10-point document will normally
provide the basis for the Order's 'Findings of Fact" while the
Agency's intended response actions will serve as the remedy the
recipient is required to implement.
^Requests for less than $250,000 can be approved oy tne Regional
Administrator while requests for more than $250,000 require the
approval of OERR. (It is anticipated that within the month, the
Regional Administrators will be delegated the authority to obligate
up to SI million for removal actions.) The ttn point document
itself must justify its cost estimates and be consistent with the
NCP. With the issuance of the Revised Superfund Removal Guidance,
the 10 point document will become an Action Memorandum.
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Since Administrative Orders will normally be issued in situa-
tions in which site response is not required for at least one
week, OSWER policy is to provide recipients when possible an
opportunity to meet with Agency personnel to discuss the terns of
the Order and the means for compliance. Therefore, the Order
should include the following provisions:^
1. A statement of the imminent and substantial danger
pursuant to §106 of CERCLA and the risk of harm under
$300.65 of the NCP.
2. A statement of the authority of the issuing official
(normally the Regional Administrator) to issue the
Order and why the recipient is liable under $107.
3. The steps the recipient must take to comply with the
order, (following the provisions of the
ten-point document in order to be as specific as
.possible).
4. A mandatory timetable for performing and completing
the response. (The timetable should include at least
one short term interim deadline so the Agency will have
the ability if necessary, to demonstrate non-compliance
before the project completion date.)
5.-A provision informing the recipient that his duty to obey
the terms of the order takes.effect 72 hours after he
receives the order.
6. A provision informing the recipient that he may orally
contact the Agency to request a conference on the
Order. The recipient must follow up his oral request
in writing.
7. A provision specifying a date certain by which responses
(either oral or written) to the Order must be received.
8. A provision which states that EPA reserves the right
to undertake the action if emergency circumstances
dictate such action 'and that such action- in no way
relieves the parties of responsibility for the costs
of such actions.
9. A provision which require*: proper chain of custody
procedures to be followed for any testing and sampling,
adequate recordkeeping of activities (so records may be
used as evidence in any future enforcement case),
cooperation from employees of any contractor who engages
in site activity, and availability of such employees
to the U.S. in preparation and trial of a subsequent
enforcement case.
*Refer to the general Administrative order Guidance for examples
of model orders and conference procedures.
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OSWER I 9833.1
-7-
Under a separate delegations memorandum to the Regions, the
concurrence requirement will be waived for all Administrative
Orders for immediate removals with obligations of $1,000,000 or
less. Within two weeks of issuance of the Order, the Regions are
to send a copy of the final Order to OWPE.
As a matter of policy, in order to increase the likelihood of
compliance, the Agency encourages the convening of a conference
with the recipients of an Administrative Order. Since
Administrative Orders will generally be issued for immediate removal
situations which do not require response in less than one week,
the Agency will normally attempt to hold a meeting with the recipient,
if requested by the recipient. The conference should be
convened on an expedited basis (e.g., within 72 hours after the
Order is issued) if the recipient orally requests the conference.
However, the Agency retains the right to "waive" a conference
if immediate response is warranted because of deteriorating conditions
at the site. The Regional Administrator shall have the authority
to decide whether to eliminate the conference prior to or following
the issuance.of the Administrative Order. If the Regional Administrate:
waives the opportunity for a personal conference, a regional
representative, must at least give the parties an opportunity to
be heard by telephone before the effective date of the Order. In
••;eneral, conferences concerning removal actions should be used to
clarify the requirements of the Order rather than as an opportunity
to negotiate the requirements.
The Agency must create a good administrative record of its
meetings with the recipient of an Order for either enforcement of
the Order or cost recovery after a Fund-financed cleanup. The
Agency participants should prepare a written summary of the
conference containing:
1. The' date and participants.
2. A summary of the significant issues raised and arguments/
data used by the recipient to contest the Order.
3. The result of the conference (e.g. agreements reached
with the recipient, indication from the recipient of
an unwillingness to comply with the Order)
The presiding official, (designated by the Regional
Administrator) must also prepare a statement which addresses any
significant arguments raised by the recipient and recommends whether
any nodifications to the Order are warranted. (See the September
8, 1983 Administrative Order Guidance for a complete discussion of
the procedures and "ground rules" for conducting the conference
•nd the time frames for holding them.)
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-8-
If the recipient agrees to undertake the stipulated response
measures, the agreement may be in the form of a Consent Order. The
OSC will monitor compliance with the Order and reconaend additional
enforcement action if the terms of the Consent Order are breached.
If the recipient does not agree to undertake the measures contained
in the Order, the Agency will generally not refer a case to the
Department of Justice to force compliance because of the time
constraints presented by the emergency. Rather, the Fund will be
used for site response and the recipient(s) will be sued for cost
recovery--including punitive damages in appropriate cases.
IV. USE OF THE FUND WHILE THE ADMINISTRATIVE ORDER IS BEING ISSUED
Normally, once an Order has been deemed appropriate for an
immediate removal situation, the CERCLA Fund shall not be. used to
undertake a federally-funded immediate removal during the time
period in which the Agency develops the Order, issues it to the
responsible party, and conducts the conference.
However, if site conditions deteriorate— presenting a corre-
sponding increase in the threat that the site presents— the Fund can
be used for response while the Administrative Order process continues
In such instances, the Regional Administrator can approve the use
of Funds below S250K and request the Assistant Administrator, OSWER,
to release funds if the response work will be greater than $250K.4
The Administrative Order process should continue since the parties
may undertake site response at the next convenient break in activity.
Thus, if there are deteriorati ng .conditions at the site, the
OSC.should continue all steps necessary for undertaking a Fund-
financed response while the Order is being developed. The 10-point
document should be prepared and receive the concurrence of all
officials up through the Regional Administrator or the Director,
OERR.
However, no actual obligation of Funds for site response will
normally occur until after the Order has been issued and the con-
ference has been held. Since the Order will only be issued in
situations where an immediate response can be delayed, there will
normally be tine to see the Administrative order process through
to conclusion. The conference must be held within the time period
specified in the Order (which will correspond to the time the
Agency has before the response activity needs to begin). Since
'If deteriorating conditions require the Fund to respono wnue
the Order is still being issued, OSWER assumes that the Fund will
take all response actions necessary at the site {e.g., remove all
barrels, not merely those that nay be about to leak).
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i 9833.1
-9-
the timing of the obligation will vary according to the estimated
time needed to mobilize equipment and personnel, the "OSC should
work closely with the technical enforcement and Regional Counsel
•taff during the drafting of the Order to assure that the time
period established for issuing the Order is synchronised with the
ti»e requirements for site response.
If the conference does not result in private party response—or
if changing conditions at the site require accelerated response—the
Fund-financed immediate removal will take place. If Fund-financed
activity does begin, the Order may be written to require th<* potentially
responsible parties to undertake site activity at the next convenient
break point in activity. If the parties still fail to undertake
the site response activity, enforcement efforts will emphasize cost
recovery with the additional imposition of fines/penalties as
appropriate.
V. COST RECOVERY
The Agency will normally not initiate t civil action in the
event of non-compliance with an Order but instead will seek to
recover costs and damages after a Fund-financed response. Therefore,
while enforcement personnel are carrying out the Administrative
Order process, they .should also be aware of the requirements for a
successful cost recovery action. They must be able to document
the following factors (some of which are the same ones necessary
for the issuance of the Administrative Order itself).
1. The need for the immediate removal (evidence of an imminent
and substantial endangerment or threat of endangerment
to public health, welfare or the environment)
2. Liability of the responsible parties (evidence to support
the contention that the parties meet the liability standard
of $107)
3. Proof that the Fund-financed response activity was "not
inconsistent" with the requirements of the NCP.
4. Documentation of all eligible costs for site-specific Fund
expenditures.
Enforcement personnel must assure sufficient documentation of
these factors from the period in which the 10-point document is
developed and Funds are obligated through the actual clean up of
the site. These cost recovery requirements Must be »et regardless
of whether there will be a simple cost recovery action (if no
Administrative Order is issued) or an action for response costs plus
damages (if the Order is not complied with). The Agency Bust
assure that evidence is preserved for any subsequent enforcement
action. Proper chain of custody procedures must be used for any
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OSKE3 # 9633.1
-10-
•ampling or testing, and adequate records of site activity must be
kept. Employees of any contractor used for site activity Bust
cooperate with and be made available to the U.S. in preparation
•nd trial of any subsequent enforcement action. Enforcement,
program and legal offices should work together throughout, the
case development.
VI. FOLLOW-UP
This guidance represents a substantial departure from prior
practice, and I expect that it will take come time to implement.
For these reasons, Z will be reviewing all immediate removals
referred to Headquarters for compliance with this guidance. In
addition, for immediate removals under $250,000, I will ask the
Directors, OWPE and OERR to review the compliance with this guidance
quarterly, and to advise me accordingly.
Appendix
cc: Gene Lucero, OWPE
William Hedeman, OERR
Kirk Sniff, OECM
Dan Berry, OGC
-------
APPENDIX
Authority/Requirements/Enforcement of Administrative Orders
for Removal Actions under CERCLA
Dnder 5106(a) of CERCLA:
If, EPA, acting on behalf of the President:
determines that, there may be an imminent and substantial
endangerment to the public health or welfare or the
environment because of
an actual or threatened release of a hazardous substance
from a facility
may, after notice to the affected state,
issue such orders as may be necessary to protect
public health and welfare and the environment.
Under $'l06(b) of CERCLA:
EPA may take action in the appropriate U.S. district
court, against any person who willfully violates or
fails or refuses to comply with any Order issued under
$106(a), to enforce such order and
way fine such person not more than 55,000 for each day
such violations occur or such failure to comply continues.
Under S107(c)(3) of CERCLA:
Any person who is liable for a release or threat of release
of a hazardous substance that:
fails without sufficient cause to properly provide
removal action upon order of the president pursuant to
S106
nay be liable to the united States for punitive damages in
•n amount at least equal to and not more than three times,
the amount of any costs incurred by the Fund as a result
of such failure to take proper action.
Civil action may be commenced against any such person to
recover the punitive damages. These punitive danages shall
be in addition to any costs recovered from such parson
pursuant to $112(c).
Any monies received in punitive damages shall be deposited
in the Fund.
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OSWEH * 9633.1
APPENDIX PAGE 2
National Contingency Plan Requirements for Immediate Removals
Under $300.65 of the NCP:
Immediate Removal action is appropriate when the lead agency
determines that:
the initiation of the removal action will prevent or
mitigate immediate and significant risk of harm to
human life or health or to the environment from such
situations as:
1. Human, animal, or food chain exposure to
acutely toxic substances
2. Contamination of drinking water supply
3. Fire and/or explosion
4. Similarly acute situations
Immediate removal action may include but are not limited to:
1. Collecting and analyzing samples to determine
the source and dispersion of the hazardous
substance
2. Providing alternative water supplies
3. Installing security fencing or other measures
to limit access
4. Controlling the source of the release
5. Measuring and sampling
6. Moving hazardous substances off-site for storage,
destruction, treatment or disposal
7. Placing physical barriers to deter the spread
of the release
8. Controlling the water discharge from an upstream
impoundment
9. Recommending to the appropriate authorities
the evacuation of threatened individuals
10. Using chemicals and other materials in accordance
with Supart H to restrain the spread of the
substance and mitigate its effects
11. Executing damage control or salvage operations
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9832.7
INFORMATION.REGARDING CERCLA
ENFORCEMENT AGAINST BANKRUPT PARTIES
-------
y ••"•%, 9832.7
f A \
5 NIK* } UNITED STATES ENVIRONMENTAL PROTECTION AUENCY
*""T/ WASHINGTON. D C. 20460
*
MAY141SI4
01 > '
MEMORANDUM
SUBJECT: Guidance Regarding CERCLA Enforcement-Against
Bankrupt Parties /\
FROM: Courtney M. Price V..fl<«.A-^
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Adainijtrators, 1-X
Regional Counsels, 1-X
Lee M. Thomas, Assistant- Administrator for
Solid Waste and Emergency Response
The attached guidance has been developed co assist the
Regions in developing CERCLA enforcement actions against bankrupt
parties. The guidance is intended to encourage aggressive
enforcement against insolvent parties and insure national
consistency in current and future bankruptcy cases brought by
the Agency.
The guidance provides: 1} an overview and -summary of the
Bankruptcy Reform Act and existing bankruptcy case lav; 2) *
discussion of enforcement theories available to the Agency to
pursue insolvent parties under CERCLA; and 3) references to
current bankruptcy pleadings and appeals.filed by the Agency.
Pages 24 and 25 of the attached guidance describe referral
procedures for a proof of claim in bankruptcy. A bankruptcy
referral vill ordinarily be processed in the same way as other
hazardous waste referral!. ' However, expedited^Headquarters and
DOJ concurrence and abbreviated referral packages may be neces-
sary and acceptable if required to meet deadlines in bankruptcy
cases.
If you or your staff have any further questions regarding
CERCLA enforcement against bankrupt parties, please contact
Kirk Sniff at (FTS) 3*2-3050 or Heidi Hughes, at (FTS) 382-3109.
Attachment
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9832,7
TABLE or CONTENTS
PAGE
I. -INTRODUCTION
A. Scope and Duration of the Problem ............. 1
B. When to Proceed Against a Bankrupt
Party ....................................... 2
1 . Probability of Recovering the Coat
Litigation ..................... . .......... 2
2. Deterrence of Frivolou* or Fraudulent
Bankruptcy Filings ........................ 3
1 1 . THE BANKRUPTCY CODE : An Overview ................. 4
A. Organization of the Code ...................... u
B. Voluntary v«. Involuntary Bankruptcy .......... 5
III. CERCLA AND BANKRUPTCY ACTIONS .................... 6
A. Proceedings in District Court or
Bankruptcy Court . .. .......................... 6
B. Cost Recovery Under Section 107 of CERCLA ..... 11
1. Distribution of Assets ................... 12
(a) Secured Creditors ....................... 12
Cb) Priority Structure .................. •.... 13
2. Theories of Recovery Beneficial co
the United States ................ ...... 15
(a) Administrative Costs .................... 15
(b) Recovery Under Section 506 (c)
of the Code ..................... . ..... 17
(b) Equitable Liens ......................... 18
(d) Restitution ....................... ...... 18
C. Other Matters in Bankruptcy and
Insolvency Cases ............................ 19
1. Abandonment of Property .................. 19
2 . State • Invoivency Laws ........... . ........ 23
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- 2 - 9832.7
IV. PROCEDURES 24
A. Rulei of Bankruptcy Procedure 24
B. Filing Proof of Claias 25
C. Pleadings 27
D. Appeals 27
E. Federal Bankruptcy Court
Jurisdiction 26
V. THEORIES OF INDIVIDUAL LIABILITY 30
A. Personal Involvement in Acts
and Omissions 31
B. Piercing the Corporate Veil...... 33
C. Personal Jurisdiction in Cases Involving
Corporate Officers or Shareholders 35
VI. INDEX OF RESOURCES 36
PLEADINGS 36
Proofs of Claito 36
Other Briefs and Motions 36
ORDERS 37
RESOURCES 38
RULES i 36
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9832,7
1. INTRODUCTION
and Duration of the Problem
Tht U.S. E.P.A. !• charged with cht duty of managing and
rtplcnishing the limited Suptrfund co tht greatest txccnc possible.
While our enforcement activities under the Comprehensive Environ-
mental Response. Compensation, And Liability Act (CERCLA) will
generally be directed against solvent parties, there have been
and will continue to be times when a responsible party declares
bankruptcy.
This meaorandun sets forth enforcement options for dealing
with bankrupt parties. It includes guidance on when to proceed
against bankrupt parties. It also discusses the chtories and
procedures for recovering cleanup coses from bankrupt parties
under both federal bankruptcy lav and common law theories ot
recovery. Finally, it ia intended to serve as a bankruptcy infor-
mation clearinghouse, listing materials available from OECM-Wase*
on bankruptcy and related subjects.
In tht long; run, tht requirements of tht Resource Conservation
and Recovery Act (RCRA), particularly tht eloaurt and financial
requirements, ahould-insure tht ordtrly closure of scorage or
disposal facilitits. Nonetheless, this will not always occur.
Thus, while tht purpoat of this memorandum is co aid tht CPA official
%
enforcing CIRCLA, much of it vill bt relevant eo futurt tfforts by
EPA to rtquirt bankrupt owner-operators of; storage or disposal
facilities, generators, and transporters to contribute as much as
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•2-
9832.7
possible co Cht cleanup of Che hazardous conditions they have
created.
B. When to Proceed against a Bankrupt Party
In making chc determination of when co proceed against
bankrupt parties chc Regions should balance the likelihood of
recovering assets from the estate of the insolvent party against
the extent of Agency resources required to prosecute bankrupt
parties. The Regions should also evaluate the effect that pursuing
parties who.have filed bankruptcy will have in deterring future
frivolous or fraudulent bankruptcy claims.
1. Probability of Receverini the Cost Litigation
Two questions should be answered by the Regions to determine
the efficient use of enforcement resources and the extent to which
the Agency should pursue bankrupt parties in CERCLA actions.
The first question to answer In determining whether to
proceed against * bankrupt party is related to the scope of the
r*fte: Are there other solvent parties In che case? If so. CERCLA'' s
purposes say be served by proceeding against them alone. In-general,
actions against bankrupt parties such as generators lacking assets
should not be undertaken when there are other solvent parties.
The second question that Bust be answered by the Regions
relates to tht value of the case: Are there assets in the estate
of the bankrupt party? The Assistant united States Attorney in
the District where the Bankrupty Court sits may be able to send
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9832,7
-3-
copies of chc cast docket co an EPA attorney..]/ Depending on the
stage of proceedings, che dockec Bay include an itemitacion of
assets. Ic may be pointless co proceed if chcre are few assets.
The position of the other creditors should also be considered.
In general, EPA and the Department of Justice should maximize
its use of attorney resources by pursuing bankrupt responsible
parties when there appear to be assets in the estate, and there
are either few secured creditors with relatively Incited claims or
soae basis exists for recovering funds from che estate despite the
presence of secured creditors.£/
2. Deterrence of Frivolous or Fraudulent Bankruptcy Filings
On occasion, EPA nay elect to pursue a bankrupt responsible
party even when it appears unlikely that we- will recover sizeable
anounts from the Bankruptcy Court. The Regions should pursue bankruptcy
actions where che case may serve as a decerrtnc co ochcr parties
who would otherwise consider escaping liability through a declaration
I/ The most common fora of bankruptcy is liquidation under
~ Chapter 7 of the Bankruptcy Reform Ace of 1978 (11 U.S.C.
1101 «c »eq.) (hereinafter ciced as "the Bankruptcy Code").
However, aevcral CERCLA cases have involved responsible parties
in Chapter II reorganisation (see United States. et al. v. Johns
Manville Sales Corporation. et~aT.. Civil No. gi-jgs-D). The
distinction* between a Chapter 7 liquidation and a Chapter 11
reorganisation are discussed infra. Unless otherwise seated the
discussion in this memorandum concerns Chapter 7 liquidation
proceedings.
21 This evaluation should be documented in che case referral
~ package prepared by the Region. The Department of Justice
has requested that all bankruptcy referrals include a "quick look
financial assessment of the pocencial defendant's assets (i.e. a
summary of assets listed in the bankruptcy papers, a Dunn and
Bradstreec reporc, etc.)
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9832*7
-4-
of insolvency. For instance, through the prosecution of bankrupt
parties'the Agency could provide an effective deterrent tp under-
financed "fly-by-night" companies who see bankruptcy at a way to
•void cheir liabilties co the federal government. Siailarly, it
la iaportant that responsible parties are treated equitably. For
example, in a case involving a bankrupt site owner/operator
whose actions contributed significantly to the vaste condition,
EPA could pursue the bankrupt site owner to further the enforcement
policy goal of treating responsible parties even-handedly and
equitably.
11. THE BANKRUPTCY CODE: An Overview
A. Organisation of the Code
The Bankruptcy Reform Act of 197S (11 U.S.C. S 101 e_t seq.
(1978)) replaced and liberalized the Act of 1898 (11 U.S.C. S 1 e_t
*«q.. (1898)). The new act, commonly called the Bankruptcy-Code,
consists of eight chapters. Those relevant to EPA claims are:
Chapters 1, General Provisions; 3, Case Administration; 5, Creditors
and Debtor, and the Estate; 7, Liquidation-, and 11, Reorganisation.
4
Chapters 1. 3, and 3 ate forth definitions and procedures
coaaon to All bankruptcies. The provisions of Chapters 7 and 11
•et forch the specific procedures for liquidation* and reorganiza-
tions. Onder a Chapter 7 "atraight bankruptcy" or "liquidation,"
a debtor ia granted a discharge of all debta but must liquidate
all assets. A Chapter 7 bankruptcy is administered by a trustee
appointed by the Bankruptcy.Court. Onder Chapter 11, there it no
liquidation of assets. Rather the goal of this chapter is to
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9832,7
-5-
reorganize tht obligation* of chc debtor in order to give the
dtbcor a "fresh scare" in carrying out his business. The debtor
and his creditors Bust arrive at a reorganization plan whereby a
share of the debts is paid to the different classes of creditors
on a schedule. The debtor normally administers the reorganization.
B. Voluntary vs. Involuntary Bankruptcy
Under either Chapter 7 or 11, the debtor himself nay
initiate a voluntary action.£/ The debtor does not have to be
insolvent^/ and no formal adjudication of bankruptcy is. required
in "riur.tary cases. An order for relief is automatically entered
by the Bankruptcy Court in a voluntary case.
An involuntary petition under Chapter 7 or 11 aay.be filed
•gainst most debtors by certain creditors. The debtor may contest
the petition, hovever, and the issue of whether the debtor is or is
not.insolvent will then be adjudicated. The Bankruptcy Court will
only enter an order for relief if the debtor is not generally paying
«e
w/. j.w.. „. *K»y become due, or if a custodian, within the last 120
days before the filing of tht petition, has taken possession of or
has been appointed by the Court to take charge of substantially all
of tht debtor's property.5/
i/ 11 U.S.C. I 109(b).
4/ Insolvency in bankruptcy'law is a ttra of art dtrivtd from
- COOTon law. If a corporation or individual claims insolvency
under the common law of a State (as opposed to filing under the
ftdtral .Bankruptcy Code), ht it generally only deemed insolvent if
he is not paying hit dtbtt at they become due and if a rtctivtr or
other cuttodian has-been appointed by the Court to take charge ox
hit property.
/ 11 U.S.C. I303(h)
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•6- 9832*7
III. . CERCLA AND BANKRUPTCY ACTIONS
Section 101 of chc Bankruptcy Code defines "creditor" AS:
(A) [an] tncicy chat has a claim against
the debtor chat arpac at the time of or before
the order for relief (disaissal decision -of
Bankruptcy Court which follows the approval of
the trustee's Final Report] concerning the
debtor ...
Under section 101 of the 1978 Act, • "claia" is a:
(A) right to payment whether or not such
right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured,
uno*cured, disputed, undisputed, legal,
equitable, secured, or
(B) right to an equitable remedy for breach
of performance if such breach gives rise to
a right to payment, whether or not such
right ... is reduced to judgoent, fixed,
contingent, matured, unmatured, disputed,
secured, or unsecured.
The statute clearly states that a claia need not be premises
on a civil action or a final judgment; it is sufricient if the
claia is based on a simple right to payment as a result of work
coapltted and cose incurred. Thus, Che United States need not
have received a Judgment under CERCLA before making a claia against
• bankrupt party. It i» enough that the United States has a right
to payment or an injunctive claim. The United States' right to
payment can be bated upon CERCLA Section* 107 and/or 104, or ocher
authorities. Thus, the United States can proc«eff to file a claim
in Bankruptcy Court.
A. Proceedings in District Court or Bankruptcy Court.
An important question that mutt be resolved in each case is
whether to initiate proceedings in District Court or Bankruptcy
-------
9.832,7
• 7-
Cuurt. An ordinary creditor must proceed in Bankruptcy Court
because under the automatic stay provision (Section 3$2 of the
Bankruptcy Code, 11 U.S.C. $362(a)), the filing of a Chapter 7 or
Chapter 11 petition operates aa an automatic stay of any proceedings
against the debtor. The stay halts the following:
(1) the commencement or continuation ... of a
judicial, administrative, or other proceeding
against the debtor that was or could have been
commenced before the commencement of the case
under this title;
(2) the enforcement, against the debtor or against
property of the estate, of a judgment obtained
before the commencement of the case ...
(3) any act to obtain possession of property or
the estate or of property from chc estate;
(4) any act to create, or enforce any lien
against property of the estate;
(5) any act to create, perfect, or enforce against
property of the debtor any lien to the extent
that such lien secures a claim that arose
before the commencement of the case .,.;
(6) any act co collect, assess, or recover a claim
against che debtor that arose before the
commencement of the case ...; and,
(70 the aetoff of any debt owing co che debtor ...
In a number of situations, however, che filing of a petition
does not operate at a stay, including (Section 363(b)}:
(4) ... Che commencement or continuation'of
an aceion ... by a governmental unit co
enforce such governmental unit's policy or
regulatory power;
(5) ... Che enforcement of a judgment other Chan
* money judgment, obtained in an aecion or
proceeding by a governmental unit co enforce
such governmental unit's police or regulatory
power.
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-8-
9832.7
Tbe purpose of these exceptions, as articulated in the House
Report accompanying the Bankruptcy Cooe, Is to permit governmental
authorities to pursue actions to protect public health and safety*/
and to allow governmental units to sue or continue suit against a
debtor to abate violations of environoental protection lavs.?/
The exception in Section 361(b)(4), as interpreted by the
government, is broad. It Batters not what is sought: The government
may commence or continue any police or regulatory action. This
includes actions for money (CERCLA S107) and actions for injunctive
relief (CERCLA $106).£/ At the stage of seeking to execute any
H.R. Rep. No. 95-595 95th Cong., 2d sen
Cong. Rec. H 11092 (Sept. 28, 1978)
343 (1978); 95
T H.R. Rep. No. 95-595. at 343. See also; In re Bay Bridge
94 F.2fl 355
Inn. .Inc. v. New York State Liquor Authorit
(2d Cir. 1938); In re colonial Tavern v. Charles
Supp. 44 (D. Mass.
y.
L. Byrne. 420 F.
and in re Dolly Madison. 304 F.2d. 499
(3d. Cir. 1974) [held; a* bankruptcy court should not interfere with
governmental regulatory programs]; Aaron, Bankruptcy Stays tor
Environmental Regulation; Harvest of Coaaerical Timber as an
introduction to a Clash ot Policies. 12 Envt'l. Lav i. 3-B (i9t)l)
!...'».. >:^wcy Lav - Wh«a is a Governmental Unit's Action to Enforce
its Policy or Regulatory Power Exempt from the Automatic Sta
ap
U
Provisions of Section 362?. 9 Fla. Univ. L. Rev. 369. 380 (1981).
See-: 11 U.S.C. i362CO»C£) for the conditions under which the
automatic atay remains in effect and other rules applicable to
obtaining relief from the stay.
8/ A motion to overcome the stay should generally be filed in
~ Bankruptcy Court before proceeding in District Court. (See
Pleadints section, infra.) A recent opinion in which a Bankruptcy
Judge discussed •• and rejected — holding a citizens' group in
contempt for failing to overcome -the stay is In Ke Revere Copper
and Brass. Inc.. 29 B.R. 584 (Bkrtcy.N.W., 195TJT When the govern-
ment proceeds in District Court, a timely proof of claim should
also be filed in Bankruptcy Court (see page 24 infra) When a
Regional attorney wishes to pursue in District Court a cost recovery
Judgment againt albankrupt party, it is particularly important that
this strategy be discussed with appropriate EPA H/Q and DOJ attorneys
before referral of a case.
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9832*7
•9-
Judgmenc chat may be obtained, tht government should be prepared
to argue that enforcement of ehe judgment is « continuation of the
governmental unit's enforcement of its regulatory power. Thus the
Bankruptcy Code read in conjunction with CERCLA and other authorities
allows che United States Co seek an order froa Federal District
Courc requiring che Bankruptcy Court co order che debtor in posses-
sion or trustee to use assets of che bankrupt co abate a hazardous
condition or to reimburse che government for its expenditures.
In two reccnc cases, che courts rejected che government's
view of the exceptions'. In United States v. Johns Manville j|/
che District Courc in New Hampshire denied EPA'a motion to vacate
an Order issued by che Bankruptcy Courc in New York staying all
proceedings in an EPA enforcement action againsc Manvilie. The
opinion characterized che government's accion for injunctive relief
as cantamount co an accion for a aoney Judgment. Since Section
362(b)(5) of che Code prohibits enforcement of a money judgment,
che Courc held chat che injunccive relief aoughc by che government
did not fall vichin che paramecers of ehe bankruptcy acay exempc-ion.
The Courc noced chac if che governaene had inscead toughc an
injunccion to prevenc accive, on-going disposal racher Chan cleanup
of an existing hazard, such an action would noc have been acayed
by che bankruptcy filing. In our view, che District Courc
9/ No. 81-229-D (D.N.H. decided Nov. 15, 19*2).
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9832.7
-10-
Agtncy has proceeded with CERCLA response activities
ac the Johns Manville sites.
In In Re Kovacs.1 T/ Ohio v*s stayed from proceeding in
State Court in it§ efforts to enforce an injunction requiring
Kovacs to clean up a hazardous waste site. Rovacs. a corporate
officer and operator of the Ch«a-Dyne site, had declared bankruptcy,
The Sixth Circuit, affirning the District Court and Bankruptcy
Court decisions, held that Ohio, in proceeding to enforce the
injunction in State Court was actually seeking a aoney'judgment.
The Supreae Court granted the State of Ohio's petition for a
writ of eertiorari on January 24, 1983. The Supreoe Court vacated
the judgment and remanded the case to the Sixth Circuit to consider
the issue of mootness. The Supreme Court has accepted eertieriri
for a second tine in the Kovaes II case.^ The issue presented
in "kovacs II is whether a bankrupt defendants Bay rely on the
discharge provisions of the Bankruptcy code to void an injunction
which requires him to cleanup a hazardous waste facility. In
January 1984, the United States filed an anicus euriae tfrief in
TO/. The governaent cook the position that the Johns Kanville
District Court erred, in a action to disaissrin AM Inter-
national v. United States. Case No. 82-B04922 .(N.D. Hi. ftkrtcy
Ct.; (CERCLA 1106 Action;..
H/ 681 F.2d 454 (6th Cir. 1982).
W State of Ohio v. Kovaca (Kovaes II), 717 F.2d 984 (6th Cir.
(cert, granted, Sp. Ct. No. 83-1020).
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9832,7
-ii-
cht Kovaes II case seating th«c ch« ease has national implication
for environmental enforcement undtr the Clean Water, RCRA, and
CCRCLA and furthtr cht scacts that tht 6th Circuit decision
"obviously tncouragts polluters to abuse the Bankruptcy Code
and defy state and federal environmental protection." |j/
B. Cost Recovery under Section 107 of CERCLA
The United States should be prepared at the time of filing
of a proof of claio in Bankruptcy Court to prove that its claia
should be allowed by the court.' That is, if the agency- has spent
tor win spend) ]^J money at a site under the provisions of CERCLA
104, and wishes to recoup such expenditures under CERCLA Section
107, the United States will have to demonstrate to the.Bankruptcy
Court that the estate is in fact liable for such expenses under
Section. 107 .}*/
Therefore, when the United States files a proof of claim
with the Bankruptcy Court, Department of Justice and EPA attorneys
137 Id.. Memorandum for Che United States as aaicus curiae
supporting ptciciontr (January, 1984).
14/ Zn tht east where cht Agency has not tptnt Suptrfund money
ac cht tict but where we intend co conduce a fund-rinanced
response aecion, tht Unictd States can filt a proof oc claim tor
an ''open account." Tht proof of claia would indicate chat the
claim is founded on an optn account which will become due upon
tht completion of the abatement actions by EPA.
IS/ A usual commercial claim of a creditor it establishtd by the
txiattnct of a receipt or invoice indicating that the debtor
received goods or services which he contracted co rtctive. When
EPA has performed work on a site, however, chert has bttn no agree-
ment eo perform such work between EPA and the bankrupt party.
Therefore, we muse be prepared co prove Section 107 liability in
order to prove our claim.
-------
-12-
should be prepared to prove all elements of a Section 107 cost
recovery action. The case must be referred to the Department
of Justice in the normal way, although there may be situations
when.a referral by telephone may be necessary. See Procedures.
infra.
1. Distribution of Assets
(a) Secured Creditors
The claims of secured creditors arc satisfied
fully before assets are distributed to any unsecured creoitors,
including creditors cLaicing administrative expenses. The
justification for this treatment of secured creditors is statutory
(11 U.S.C. $$507, 726). A valid lien As a right to repayment,
created by agreement, which exists independently of bankruptcy
lavs. As such, it is a charge against assets which must be met
before distribution to unsecured creditors.]^/ For example, a
bank that has made a loan to the owner of a facility that is
••cured by a lien on the heavy equipment will receive "off the
cop" the amount representing the value of the heavy equipment or
Che equipment itself before distribution of assets to unsecured
creditor! in order of cheir priority under Section 507 of the
Code.
]£/ 3 Collier on Bankruptcy. Para 507.02 307-12.6 (15th Ed.
19FT7.
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9832*7
-13-
In Chapter 7 proceedings, secured creditors will recover
before unsecured creditors, including EPA, unless the Bankruptcy
Court is persuaded by our arguments to Jump our claims ahead of
•11 others.]2J In Chapter 11 proceedings, the government should
be prepared to play an active role in working out the terms of a
reorganization plan with the various classes of creditors which
provides for eventual repayment of our cleanup expenditures.
The classes of creditors that have secured interests will have
the greatest leverage in negotiation of a plan.
(b) Priority Structure
Section 507 of the Code sets up the priority
structure for satisfaction of unsecured claimsJJ*/ Payments to
the unsecured creditors are generally made on a pro rata basis.
Ten, fifteen or twenty cents to the dollar is common, depending
on eh* assets remaining in the estate. The following expenses
and claims have priority in the following order under Section
507(a):
1. First, administrative expenses ... and any fees
and charges assessed Against the estate ...
Ml fS07(b) establishes a "Super Priority" vhieh'vould require
cKt Agency to have priority over every other claim allowable.
Under I507(b) EPA would have to prove (1) that EPA has a claim
(for administrative expenses) and (2) chat this claim is protected
by a lien on the debtor's property (mechanics lien or prejudgment
lien) and (3) that the stay has prevented use of the property
(clean up). See Motion for Allowance of Administrative Expenses.
In Re Triantle"Ehemieals Inc.. Case No. 80-00993-HS-7.
i§/ 11 U.S.C. 507
-------
2. Second, unsecured claims allowed under
Section 502(f) of chi* cicle. [regarding
certain claims ariaing in involuntary cases]
3. Third, allowed unsecured claims for wages,
salaries, or coaaissions, including vacation.
severance and sick leave pay.
4. Fourch, allowed unsecured claiss for contributions
co employee benefit plans.
5. Fifth, allowed unsecured claims of individuals,
to the extent of $900...
6. Sixth, allowed [certain] unsecured [tax or
penalty fee] claims of governmental units ...
Claims by the United States are classified as sixth priority
claios or general unsecured creditors* Because government clams
are so low in the priority line, attorneys for the government should
'be prepared to argue that our claims should be given greater
preference, based on one of the theories described below.
Congress is currently considering a bill ]*_! intended to
five claimants under XC8A or Superfund a priority in bankruptcy
proceedings superior to all other creditors, whether their claims
are ••cured or unsecured. Four states have already enacted
!£/ H.R. 2767 sponsored by Hep. Florio.
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9832-7
-15-
similar provision* in their own environmental laws.2£/
2. Theories of Recovery Beneficial to the United States
(a) Administrative Costs
The proof of cUini filtd -y tht Unittd States have
Asserted ch*t cltanup expenditures should bt considered adminis-
trative expenses of preserving eh« estate of thi bankrupt, thus
deserving to bt satisfied AS cop priority claims. Uhilt thtre
is little caselAv on point, one case provides support for this
theory. In Ottenheiner v. Whitaker 2W. the Court upheld the
decision of the Bankruptcy Court which required the trustee to
expend suss of money AS administrative costs in order to remove a
hazardous nuisance. The conditie- u created when the bankrupt
party abandoned several barges in Baltimore Harbor. The Court
207 Massachusetts oil And Hazardous Materials Release Prevention
And Response Act, MASS. Cen. LAWS. Ch. 21E; New Hampshire
Solid and Hazardous UASte MAnAgeaent Act, N.H. Rev. StAt. Ann.
Ch. 147-B: 10; New Jersey Spill Compensation And Control Act, 58
N.J. StAt. Ann. §10-23.11f (1981). ColorAdo hAS Also enacted
•uperlien legislation. For A dismissAl of these stAtutes And the
pending federAl legisiAtion see "Sup«rlien 'Solutions' co Hazardous
Waste: Bankruptcy Conflicti"~ASA Environaental LAW Newsletter,
winter S3/64.
2J./ Ottenheiaer v. Whi taker. 198 F. 2d 289 Oro Cir. 1952} was
decided under the Bankruptcy Act of 1898, 30,.Stat. 544, which
hAS b««n replAced by tht current ' .--ruptcy Reform Act of 1978,
92 StAt. 2549 (codified At 11 U.&.C.). St« Alto. In r« Ltwis
Jones. Inc. I Unkr. Ct. Otc. 277 (Bk. Ct. E.B. FA. 1S74) tor
the proposition thAt th« bAnkruptey court is under A duty to
prottet the public interest And »ay order A Trustee to take
Action to protect such interest. Various memoranda supporting
filed proofs of claim contain further easelav And Arguments.
These Are available trom OECM-Waste.
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9832.7
-16-
reasoned chat obicruccion of the Harbor would conflict with the
purposes of the Rivers and Harbor Act.
In its opinion the court stated, "The judge-Bade rule
{allowing abandonaent] Bust give way when it coats into conflict
with a statute enacted in order to ensure the safety ot navigation;
for ve are not dealing with a burden iaposed upon the bankrupt or
his property by contract, but a duty and a burden iaposeo upon an
owner of vessels by an Act of Congress in the public interest."22/
The United States has argued, by analogy, that expenditures
aade by EPA in the public interest under the authority of CESCLA
should be reimbursed as adainistrative expenses. This public
interest arguoent should stress the iaportance of recovering
aoney to replenish the fund to clean up additional sites. There-
fore, in a CERCLA case, as in Ottenheiaer. an Act of Congress
enacted for the public health and welfare should take priority
over the usual bankruptcy distribution order.
In a recent ruling froa the bench in * ease entitled In re
T.P. Long, in the U.S. Bankruptcy Court for the Northern District
of Ohio, held that the trustee is liable to EPA for cleanup
costs at « hazardous waste «Ue.23/ While the Judge did not
specifically state that the Governaent's cleanup expenses were
"administrative expenses" for bankruptcy purposes, the written
order is expected to elaborate on the ruling froa the bench.
227 Id. at 290.
In Re T.P. Long Chemical Co.. Inc.. Case No. 581*906 (N.D.
Ohio, Bkrtcy. Eastern District, April 5, 1984).
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-17-
9832.7
The United States is- cxpeced to file briefs on the question oi
priority for reimbursement as between che secured interest holder
(b) Recovery Under Section 506{e) of the Cede
This subsection states: "Tht trustee may rteover
fron property securing an allowed secured claim the reasonable,
necessary costs and expenses of preserving, or disposing of, such
property to th« extent of any benefit to che holder of tuch claic."
(11 U.S.C. S 506(c)). In a situation involving real property
securing a loan aade by a bank or savings and loan, cleanup costs
that preserved the property would presumably benefit the lender
and would be .recoverable. This would allow the Agency to object
to any liquidation of the real property*
The language of Section 506(c) states, however, chat the
trustee rather Chan the government can recover. The government
could deal with this by specifically, requesting the cruatee's
ratification of EPA cleanup plans or obtaining froo che trustee an
agreement co seek reimbursement under 506(b).£A/
24/ See Hobinson v. Dickey. 36 F. 2d 447 (lienholders did not
"*""" ir toting
object to water EeTng puaped out of lines for safety rtasons
*ere liable for expenditures). First Western Savings i Un
Association v. Aaderson. 252 r. 2d 5<>
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•18-
9832 ,7
(c) Equitable Lieni
It has also been suggested by the Ctvil Diviiion of
tht Departnent of Justice chat, depending on the faces of the
situation, the United States could argue that expenditures of
funds for cleanup create an equitable lien on the property. Such
a lien would create an implied contract for reimbursement of EPA
as a secured creditor. State law on equitable liens should be
researched if this ?ory is attempted. It may be of United
use since State lai. ay only allow for imposition of ah equitable
lien in situations involving a fraudulent conveyance of real
property. State law say also require the trustee to have re-
quested cleanup of the property, or at least agreed to it.2j>/
(d) Restitution
Equitable restitution of the United States has been
approved by the court in cases in which the United States acted to
alleviate a potential health hazard. In Vyandotte Transportation-
Co, v. United States ££/, Che Coast Cuaro unloaded a barge loaaeo
with liquid chlorine gas that the defendant had refused to unload
promptly. Tht Supreme Court required reimbursement of costs
incurred by tht United States. The Court noted that denial of
reimbursement would have financially penalized the United States
25/ For a discussion of State Law on "Mechanics Lien Statutes as
an Enforcenent Tool in CERCLA Cost Recovery Actions." See memo
from R. Schacfer to A.J. Barnes and C.M. Price dated January rT, I9e*
26/ Vvandotte T-ansoortation Co.. v. United States. 389 U.S. 191
(i967).
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9832.7
-19-
for acting expeditiously to protect public health and safety,
while unjustly enriching the defendant.
The Wyandotte case has been Invoked in proof of claims filed
by the United States as a basis for recovery of CERCLA costs thac
eh* government has incurred. In a recent order issued in United
States v. Northeastern Pharmaceutical and Chemical Co.. Inc.. et al.
(NEPACCO) £?/• cht court stated that restitution was available unuer
$7003 of RCRA because the bankruptcy action was an action in equity.
United States v. Reserve Mining 28 / also lends support to a claia
oasea on restitution. In that case, the Court held tha: when the
United States is seeking reimbursement for alleviating a potential
public health hazard caused by one who is in violation-of a federal
statute, reimbursement say be granted under the Court's equitable
powers.
C. Other Matters In Bankruptcy and Insolvency Cases
1. Abandonment of Property
*t. *ny bankruptcy ease, eh* trustee may choose to petition
eh* Court to allow abandonaent of ton* or all of eh* assets of the
•state on eh* grounds ehat car* of the ass«ts by eh* eruste* would
be «c*ssiv*ly burd*nsoa« co eh* *stat*. 29/ xh« rationale for
27f United States v. North«asterr> Pharmaceutical and Ch«aical Co..
Tnc>. «t al.""(NEPACCO; (September 30. 1983, «. Plat. Missouri
S.U. Div.).
28/ United States v. Reserve Minim. 408 F. Supp. 1212, (D. Minn.
1976;.
29/ 11 U.S.C. S 55<».
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9832.7
-20-
peraitting abandonment was articulated in In re Ira Haupt & Cc. :
. ..[Tjhe courts have always recognized chat
a Trustee is undtr no duty to rttain the Title
to a piece of property or a cause of action
that is so heavily encumbered, or so costly,
in preserving or securing, that it does not
promise any benefit to the funds available
for distribution.3£'
The United States will oppose abandonment in certain circus*
stances because the procedure may allow the estate to avoid
liability for on-going environmental obligations and may allow the
trustee to rid the estate of an asset in which the United States
nay ultimately have an interest, (based on equitable lien, resti-
tution or administrative expenses). For example, if contaminated
property is abandoned by the trustee, the property revfrts back to
the secured creditor and the Agency aay have no claim against the
nonbankrupt party after clean up. Accordingly, the United States
should normally take the position that abandonment is only permis-
sible when public health and safety obligations (statutory or
••^rrvise) are net, and whtn-'a third party will not recover a
windfall from EPA's clean .op actions. Abandonment may be prezcrred
prior to elaan up if the property will rtvtrt to a viable party
whoa EPA may pursue for contribution to tht clean up.
Ih« petition of the United States is iupported by the reasoning
of tht Ottenheiaer v. Whitaker case, 3V and by In Ke Levis Jones.
30/ In re Ira Haupt & Co., 398 F.2d 607 (2d Cir. 1968).
21/ Suora. note 13.
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9832.?
-21-
Inc. 3_2/ in the Ottenheiaer case, the Court refused to allow the
trustee to. abandon assets that created a hazardous condition.
Rather, the Court required the trustee to use assets of the estate
to remove from Baltimore Harbor several barges belonging to the
debtor that might have otherwise obstructed the Harbor.
In In Re Levls Jones. Inc.. tht Court reiterated the Otten-
heiaer position and held that the bankruptcy trustee could not
simply abandon the property. Instead, the trustee was required co
repair various steam pipes and.manhole covers to protect public
health and safety. The Court in Ottenheiaer had held that abandon-
ment of the debtor's barges by the trustee would conflict with the
Ri 'ers and Harbors Act. The Court in In Re Lewis Jones went a
step further, stating that "even absent the violation of a state
or federal act, the public interest must be protected by the Bank-
ruptcy .Court." 33 /
The law on abandonment under the Code is unsettled. In the
recent bankruptcy ease, In Re Quanta Resources.^4/ the New Jersey
District Court affined tht Bankruptcy Court'* ruling allowing
abandonment of a hazardous vastt sitt ovtr tht objection of tht
City of Utw York and tht State of Ntw York. Tht Court allowed tht
company to abandon a hazardous waatt sitt on grounds that tht
12/ Id.
33 / In Rt Lewis Jones, supra at 280
In Re Quanta Resources Corp.. F. Supp. _
No. 82-3524 (D.N.J. Jan 24, 1983) Appeal Pending
No. 83-5U2 (3d dr.).
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9832'7
property WAS burdensome to the estate. At the sitt, thcrt were
500,000 gallons of waste oil, sludge and hazardous waste.scored in
52 tanks and about 70,000 gallons of waste oil contaminated by
PCBs.'2_5/ While Quanta had previously signed a consent order
with the N.Y. Department of Environmental Conservation to clean up
the site, the Bankruptcy Court's favorable ruling on abandonment
effectively nullified the order.
New York City and State had asserted that the holdings in
Ottenheimer and Lewis Jonet required that the Court deny the
trustee's petition to abandon and allocate assets in the estate to
be used for site cleanup rather than distribution to creditors.
The Court rejected this argument, pointing out that the two cases
vere decided before passage of the 1978 Bankruptcy Act. Before the
Act, the Court noted, abandonment was allowable under judge-nade
rule. Section 554 of the Bankruptcy Code, however, provided specific
statutory authority for che abandonment of burdensome property.
This authority, the Court stated, was not conditioned by Congress
upon a finding that abandonment does not ham the public interest.367
The Court was similarly unpersuaded by New York's arguaent
that I959(b) of tht United States Judicial Code, (28 U.S.C. Section
£57 Hazardous Waste Litigation Reporter, (July 6, 1982) at 2,6-6
367 Id. at 3,671 and 3,672.
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•23-
959(b)) prohibictd abandonment. Section 9S9(b) provides that the
trustee thill "manage and operate" property in hit possession
»wtew*»;«*4. :o v«lid laws. The Court found that this provision dia
not Apply to the trustee in a Chapter 7 conttxt, but only to
receivers and trustees involved in business operations rather than
in distribution of an estate.
2. State Insolvency Lavs
States can enact insolvency laws that affect bankrupt
parties as long as the substance of those laws docs not overlap
with the Ftderal Bankruptcy Reform Act's Jurisdiction. The United
States Constitution gives Congress the power to establish uniform
laws on bankruptcy 37/ but does not prevent states froa passing
valid laws on insolvency. To the txctnt there is no conflict
between a state's insolvency law and the federal bankruptcy law,
the state law remains in opcra.tion.38/
The United States say benefit fcoa being a creditor in state
insolvency proceedings in appropriate situations. Under 31 U.S.C.
S191 (1979), debt! to the United States are given top priority in
•tate insolvency proceedings. The top priority for governaent
debts does not create a lien on the debtor's property in favor of
the federal governaent. At s ainiaua, however., it gives the
governaent a right of priority over all unsecured creditors to
37/ U.S. CONST art I, i8 cl 4.
3Jl/ In re Wisconsin Builders Supply Co.. N9 F.2d 649 (7th Cir.
1956;. Cert, denied J53 U.S. 965 (1958).
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-24-
9832.7
payment out of the property in the hands of the debtor's Assignees
or other representatives under the conditions specified in the
statute.3f/
IV. PROCEDURES
A. Rules of Bankruptcy Procedure
The Supreme Court, Advised by the Judicial Conference of the
United States, has the authority to promulgate rules governing
cases under the new Bankruptcy Code.*_£/ The Advisory Committee on
Bankruptcy Rules was duly appointed by Chief Justice Burger to
draft rules. The Committee was nearing completion of work on the
Proposed Rules when the decision in Northern Pipeline Construction
Co. v. Marathon Pipeline Co. cast doubt on the Code and the Proposed
Rules. Thus, no new rules have yet been promulgated.
The existing rules were suaaed up in a Bankruptcy Monograph
drafted by the Office of the Attorney General:
"Until ... rules of practice and procedure are
approved, ac least two different sets of rules
•ust bt consulted. • First, there are the "Suggested
Interia Bankruptcy Rules" prepared by the Advisory
Committee on Bankruptcy Rules of the Judicial
Conference of the United States which were published
Brsave11 v. United States Fidelity fc Co.. 269 U.S. 483
(1926;. The United States could'also argue tfrat satisfaction
of CERCLA-based claims precedes consensual liens, such as mortgages.
The question appears to be open. Collier, at any rate, expresses
the view that whether consensual liens eoae ahead of the Government's
1191 priority has not been finally and authoritatively determined.
Vol. 6A Collier, 1913(2] p. 246.
407 Under Public Uw 95-598 1248, Congress conferred this power
on the Supreme Court, amending the grant of rule-making power
s«t forth in 28 U.S.C. 12075 to include the new Title 11 Bankruptcy
Code.
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9832,7
-25-
in August 1979 as 'guidclints' that could be Adopted
as local rules. The interin rules have been adopted
in many districts, albeit vich occasional variations....
Local district court rule* apply in some jurisdictions.
Some bankruptcy courts have adopted numerous local
rules in addition to, or in lieu of, these interis
rules. Second, if a point of procedure 'is not covered
by the applicable local rules, consult the Bankruptcy
Rules in effect under the Bankruptcy Act of 1889. j^/
Government attorneys involved in bankruptcy cases will find
rules and all forms (such as proof of claim forms) in Collier en
Bankruptcy (15th ed. 1981).
B. FilinR Proofs of Claim
To have standing as a creditor, the United States must file a
proof of claia fore which states the name of the claimant; the amount
of the debt or claim; the grouno of liability; the date the claie
became due or will become due under an open account theory, see
footnote 10 supra: and, the nature of the claim (secured or general,
unsecured).^/
The filing of proofs of claims or interests is .explained in
Section 501 of the Bankruptcy Code>3/ In a liquidation case under
Chapter 7, a claia ordinarily »u«t bt filed within §ix months af.t«r
the firat date set for tht firtt meeting of crtditors>i/ Claims base
41 / Bankruptcy Monograph dated Noveooer 22, 1982, prepared »y the
Office1 of the Assistant Attorney General, Cuvil Division, for
use of U.S. Attorneys, at pp. 6, 7.
£2/ See, Bankruptcy Rules, Proof of Claim official form*. Proof
oT"claio* filed so far have included brief affidavit* from
the On- Scene Coordinator stating amounts spent end describing the
nature of the work done as well as copies of bills submitted to
EPA by contractors.
11 U.S.C. 1 , 501.
££/ 3 Collier on Bankruptcy Para. -501. 02[2J (15th ed. 1979).
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-26- 9832'7
on administrative expenses can be filed any tiae before the Court
has granted the debtor a discharge.of debts. It i* sore difficult
to determine when to file a proof of da in in a Chapter ll reorgan-
ization because while the filing is required prior to the Court's
acceptance of the reorganization plan, there is no mechanists tor
determining when that acceptance will take place. A proof of
claim should be filed immediately, with telephone concurrence by
/
EPA HQ (OECM and OWPE) and DOJ, if there is any reason to believe
that a reorganization may be about to be concluded.
Section 502 of the Code governs the allowance of claims or
interests; a claim is deemed allowed "unless a party in interest
... objects."^/ In most cases, the proof of claim should be
included in the litigation referral package sent~to OECM which
will then be sent to the Department of Justice and signed by the
Assistant Attorney General for Land and Natural Resources or his
delegate. The Department of Justice must, be involved in the
filing of a proof of claim in Bankruptcy Court.f^/ As stated
above, special proctdurts Bay be available in emergency situations
in which the government would otherwise ciss filing^deadlines.
Headquarters and DOJ should be contacted.
45/ 11 U.S.C. S 506(a).Sec also (b)-(j) [Procedure after objection]
46/ See, fn 1, page 3 supra for referral documentation that the
Eepartaent of Justice has requested regarding the.r financial
status of responsible parties.
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•27- 9B32.7
C. Pleading.*
Set the attached Index of Resources for a listing of proof* of
claim and other pleadings Chat EPA has filed so far.
One problem area involves che issue of whether, or not the
United States should file a notion co overcome the stay in Bankruptcy
Court before proceeding to seek injunetive relief in District Court.
Arguably, the statute is clear on its face and no special motion
is necessary for continued exercise of our regulatory powers.
Nonetheless, Bankruptcy Courts have held attorneys in contempt
for failing to overcome the stay. It is recommended, therefore,
that a notion to overcome the stay be filed with Bankruptcy Court
when the government seeks injunctive relief from a bankrupt party
in District Court.
D. Appeals
Bankruptcy appeals are heard by appellate panels of three
bankruptcy judges appointed to the circuit counsel, on election or
the circuit.fj/ H this procedure is not available, appeals are
to the District Courts.*£/ EPA and the Land and Natural Resources
Division of DOJ will involve the Appellate Staff of the Land and
Natural Resources -Division in appeals from decisions of a Bankruptcy
Court and in filing of amicus briefs on bankruptcy issues related
to hazardous waste site cleanup.
£7/ 28 U.S.C. I 160
487 28 U.S.C. S
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.28. 9832.7
£. Federal Bankruptcy Court Jurisdiction
The jurisdiction of Bankruptcy Courts has betn in «'confuted
•cat* since the Supreme Court's decision in Northern Pipeline
Construction Co. v. Marathon Pipe Line Co. fg/ The Court held
unconstitutional the grant of power in the Bankruptcy Refora Act
(28 U.S.C. U71(b)(c)) that gave Bankruptcy Courts Jurisdiction
over all "civil proceedings arising under title 11 [of the U.S.
Code, Bankruptcy] or arising in or related to cases under title
11,"5iO/ jhis broad jurisdictional grant to the Bankruptcy Courts
vas deeaed unconstitutional because bankruptcy judges do not have
the4 protection conferred by Article III of the U.S. Constitution
(i.e. lifetime tenure subject to reaoval only by impeachment and
irreducible compensation). It is unclear what effect the decision
in Northern Pipeline will have on the type of case* that can be
brought in Bankruptcy Court until Congress legislates a solution.
At the least, however, it is clear that the traditional state
coaoon-law actions (commonly'Called "Marathon claims" by bankruptcy
practitioners) nay no longer be litigated in Bankruptcy Court absent
the consent of the litigants.£]/
497 U.S. , 102 S. Ct. 2858 (1982).
507 28 U.S.C. U71(b)(c).
517 Cook, Nev Bankruptcy Quandary Could Be Easily Solved.
Legal Times, Sept. 6, 1982 at 10 Col. l.
-------
In reaction to Congress* failure to enact legislation that
would rectify the constitutional infinity of the Code, the Adninis-
tratlve office of the United States Courts, Washington, D.C., form-
ulated aodel rules to be used as interim measures by the United
States Circuit Courts.$£' The cover explanation circulated with
the rules summarized the main points as follows:
Under the model rule, all bankruptcy matters are
initially referred to a bankruptcy judge. [Section b(l)
of the Rule]. In proceedings not involving a final
judgment on a Marathon claim, the bankruptcy judge may
enter orders and judgments that become effective immed-
iately, subject to district court review if requested by
i party. [Section (c)(2).J With respect to final judg-
ments in Marathon claims, the bankruptcy judge prepare's
recommended findings and conclusions and a proposed judg-
ment . [Section (c)(3.)] A district judge then reviews
the recommendation and enters a judgment. [Section (c)(,5)].
Where circumstances require, an order or judgment
entered by- a—bankruptcy judge will be confirmed by a cis-
trict judge even if no objection is filed.*3/
Because the United States claims are based.on federal rather
than state law, the provisions are not directly relevant to our
claims. Nonetheless, the Rules do appear to .allow the government
.. ----riBent with options for seeking relief in the Bank-
ruptcy Court. For example, the United States can move the District
"** . .
Court to "withdraw the reference to the bankruptcy judge."£*/ If
See; Memorandum from William E. Foley (Dir. fcdoin Officer
oTTu.S. Courts) to Judges, Clerks U.S. Court System Regarding
Continued Operation of the Bankruptcy Court System after Dec. 24,
1982 in the Absence of Congressional Action.
53/ Id.
11471(d) grants Bankruptcy Judges the authority to refuse-
jurisdiction.
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9832.7
-30-
such a notion were granted, the District Court could retain the
entire natter, refer part of it back to the bankruptcy judge or
rtfer the entire natter back t; -..; bankruptcy judge. The govern-
ment ihould also make a simultaneous motion to overcome the stay.
If, however, an action in Bankruptcy Court hat already been inicia:ec,
the government may file a motion to stay the bankruptcy matter in
order to proceed in District Court.£5/
V. THEORIES OF INDIVIDUAL LIABILITY
The government anticipates situations in which individuals
responsible for the creation of hazardous waste site conditions are
financially solvent even though the corporate owners and operators
•re bankrupt.~"~In"such a case, Che United States may choose to
ignore the estate in bankruptcy and pursue the responsible individ-
uals -• as individuals -« directly, or the United States, could
pursue -both the assets of the bankrupt corporation and the appro-
priate individual*.56/
55/ These procedural recommendations were made informally in
conversation! with staff members of the U.S. Administrative
Court*. Ptrh4p« rffltcting rb* current confusion in the bankruptcy
court fyftra, on* itaff Attorney stated that CERCLA actions appeared
Co present unusual aubject aav that * District^ourt would wish
to hear itself in. light of Nc • Pipeline; th« other staff
attorney discouraged EPA from~'-.-apting to be heard by District
Court, stating that business was proceeding as usual in bankruptcy
courc*.
56/ For a general discussion of individual liability, see Guidance
Memo "Liability of Corporate Shareholders and Successor Corpo-
rations for Abandoned Sites Under the Comprehensive Environmental
Response Compensation, and Liability Act (CERCLA)" from Courtney *.
?ric« to Regional Counsel* due to be issued June
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oi. 9832.7
A. Personal Involvement In Acts and OnUiions
Th« seope of personal liability of corporate officers is broad.
A corporate officer, director, or agent is liable for cortf he
cottBiti regardless of whether he acted on his own behalf or to
benefit the corporation, regardless of whether he personally bene-
fited from the conaission of the tort and regardless ot whether
the corporation is also liable. He is also liable tor the torts
of the corporation and of other directors, ofxicers or agents if
he failed to exercise reasonable care.^2/
The liability of corporate officers is generally lisitec to.
situations in which the corporate defendant has knowledge or
responsibility for tortious acts being comcitted within his area
of responsibility. A general duty of supervision may be an insuf-
ficient basis for liabillty.38/
The United States plans to make use of this theory of liability
in pursuing, in certain cases, the assets of individuals involved
with corporations that have declared bankruptcy. The fact patterns
of these particular eases see* well-suited to the lav. They involve
situations in which hazardous waste trtacacnt or disposal operations
57/ Set: 19 C.J.S. Corporations 11845. 850 (194P). Accord:
UTS, v. Hess. 41 T. Supp. 197, (S.D. Ji.Y. 198-3). Set also:
Milltr""vT Muacartllt. 1970 A. 2d (IUJ. Suptr., 1961); Donsco Inc.
v. Jasper gorp.."Sfl? F. 2d. 609 (3d Cir. 1978); Pttyaan v. Howey.
340 Ho. 11, 100 S.W. 2d. 851. 856 (1963). Sintleton v. Araor
Velvet Corp.. 4 p. 2d 223
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9832.7
-32-
were directed by employees of corporations that later declared
corporate bankruptcy and abandoned the facilities, leaving public
nuisance conditions essentially of their own creation.
In fact, EPA and the Department of Justice have already us«d
this legal theory iuccessfully. In one RCRA Section 7003 case, the
United States argued that this Section imposes personal liability
on corporate officers. The Court denied defendant'• motion to
dismiss, stating:
"In Missouri, a corporate officer who participates
in the commission of a tort may be held personally
liable for any resulting damage. Patyman v. Howev
100 S.V. 2d 851, 4J56 (Mo. 1936). 'A contraryTuTe'
would enable a director or officer of a corporation
to perpetrate flagrant injuries and etcape liability
behind the shield of his representative character,
even though the corporation might be insolvent or
irresponsible.' 19 An. Jur. 2d S 1382 at 77.59/
In addition to theories of individual tort liability, CERCLA
explicitly allows individuals to be held liable for cleaning up
*
hazardous waste sites. Section 107 of CERCLA clearly permits iepo-
sition of strict liability upon broad classes of persons including
an individual owner or operator, any person vho at the time of
disposal of any hazardous substance owned or operated any facility.
persons who arranged for disposal and persons who accepted for
transport hazardous substances.^ The Act defines "person"
™" »•
as, inter alia, "an individual."^/ One purpose of the corporate
597 U.S. v. North Eastern Pharmaceutical fc Chemical Co.. Inc
tt al.. (NEPACCO) No. 8U-506e-CV-SW (Western Dist. Ho. 1
A later HEPACCO decision based a determination of liability on 4107
of CERCLA. (.see discussion infra)
60/ CERCLA I107(a)(l)(2), (3)(4)
11 / CERCLA S 101(21).
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9832*7
-33-
•truccurt i« to insulate shareholders froo liability. There is.
howtvtr, no insulation from liability -- no corporate vtil to
pierce -- when officers or agents of a corporation comait tortious
acts or participate personally in the commission of torts.
B. Piercing the Corporate Veil
By piercing the corporate veil, the United States may be
able to establish the individual liability of shareholders for
torts comsitted by the corporation. The case law tends to upheld
protection of the corporate fora. Courts will, however, make
exceptions to this rule when shareholders have commingled individual
and corporate affairs so that the corporation appears to be no
aore than the "alter ego" of the individual shareholder.
Federal courts have relied on the.relieving factual tests in
determining when to pierce the corporate veil: 1) Is the corporation
undercapitalized for its purposes? 2) Does the corporation observe
corporate formalities? 3) Does Che corporation pay dividends?
A) Is the corporation solvent? 5) Have the dominant shareholders
siphoned corporate funds'/ 6) Dots the situation present an element
of "fundamental unfairness"?^ Courts have refused to pierce the
veil abttnt a shoving of fundamental unfairness.£3/ However,
United States v. Pisani. 646 F.2d. 83, 88 (3d. Cir. 1981).
63.7 DeWitt Trucking, Brokers v. M. Rav Fleming Fmit Company.
540 F. 2d 661, 667 (4th Cir. 1976?.
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-34- 9832.7
fraud need not be shown if federal lav governs a case.^4/ Tht
general rule applied by federal courts to cases involving federal
statutes is chat the individuals aay be held liable in the interest
of public convenience, fairness and equity. The specific statutory
directives of CE&CLA support a federal lav. In addition, the
language of CERCLA establishes liability for individuals who owned,
operated or otherwise controlled activities at hazardous vaite
sites. £5/
Fact situations faced by the United States involving hazardous
waste disposal or treatoent operations should prove appropriate
for piercing the veil. In many cases, the United States is finding
that CERCLA problems have been created by corporations that have
been mismanaged and undercapitalized for the purpose of handling
hazardous waste. Moreover, in sot&e cases, the sane individual
shareholder/directors have dissolved and reformed essentially the
•aae hazardous waste operations several tines, an indication that
the corporate fora is being used as a shield and "alter ego" for
individuals.
64/ United States v. Normandy House Hursint Hotae. 428 F.Supp.421,
424 (D. Haas. 1977). The government will wane .to argue that
federal law applies to piercing che veil. U.S. v. Kimbell foods.
440 U.S. 715 (1979), hold! chat applicttion~oT"State law should
not frustrate the objectives of federal statutes. In che Pisani
caae, supra. at 87, che Third Circuit stated, "We believe it is
undesirable to let the right! of tht United States change whenever
State courts issue new decisions on piercing the corporate veil."
65/ See, pages 7-9, Guidance Memo "Liability of Corporate Officers"
fn 49 supra.
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9832.7
-J5-
C. Person*! Jurisdiction in Cases Involving Corporate
Officer* or Shareholders
If chc United States proceeds to inicitce Action against
individual corporate officer* or shareholders, the government should
anticipate that defendant* may raise che defense of iaproper juris-
diction or service of process if they reside outside the state
where the CERCLA site is. For example, in U.S. v. North Eastern
Pharmaceutical & Chemical Co.. Inc.. e'c al. (NE?ACCO)£6/, defendants
alleged that, as Connecticut residents, they were not subject to
extraterritorial service of process under Missouri rules of civil
procedure. They argued that since their acts in directing the
disposal of hazardous waste in Missouri occurred not as their
individual acts but as the corporate acts of NEPACCO, they could
not be subject to extraterritorial service of process as defined in
the Missouri rules.
The Court rejected this argument as overly technical and
affined that it had valid personal jurisdiction over the defendants,
—...... aowaver, points to the need for attorneys to research
state law regarding personal Jurisdiction and service" of process.
Referrals to the Department of Justice should include anticipated
defenses related to personal jurisdiction.
66/ Order Mo. 5066-CV-SV, (June 11, 1981, W. Dist. Missouri.
"" SW Div.)
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•36- 9832-7
VI. INDEX OF RESOURCES
These materials can be sent to EPA Regional attorneys on
rtqutst. Because OECM-Waste does not have*the resource capability
to reproduce and send numerous copies, Bailings will be limited to
one copy per region of each document listed.
PLEADINGS
Proofs of Claim
In the Matter of Aidex Corp.. Case No. 79-0-111 , APPLICATION
FOR PAYMENT OF FUNDS HELD IN TRUST BY THE CLERK OK THE CO'JRT
FOR CLEAN UP OF HAZARDOUS WASTE SITE CONDITION.
U.S. v. Jack L. Neal and Geraldine Fave Neal (Globe), Case No.
8"7^0"0198, COMPLAINT FOR DECLARATORY JUDGMENT AUD APPLICATION
FOR ORDER FOR REIMBURSEMENT OF COSTS INCURRED BY THE U.S.
IN RESPONSE TO.A HAZARDOUS SITE CONDITION.
In re Liquid Disposal Inc.. Case No 82-01846, APPLICATION FOR
ORDER FOR REIMBURSEMENT OF COSTS INCURRED BY THE UNITED STATES
TO CLEAN UP A HAZARDOUS SITE CONDITION and accompanying
affidavit and invoices. (Eastern Dist., MI)
In re Triangle Cheaicala. Inc.. Case No. -80-00993-HS-7,
plus APPLICATION FOR ORDER FOR REIMBURSEMENT etc. and affidavit.
(Southern Dist., TX)
In re Crystal Chemical Company. Case No. 81-02901-HB-4, plus
UNITED STATES MEMORANDUM IN SUPPORT OF PROOF OF CLAIM,
(Southern Dist., TX)
Other Briefs and Motlong
In tht Matter of Aidex Corp.. Cast No. 7,9?0-111, MOTION TO
VACATE AUTOMATIC STAY, and accompanying MEMORANDUM IN SUPPORT
OF MOTION TO VACATE AUTOMATIC STAY and accoapanying court
order granting action. (West Dist., NE)
In rt Crystal Chaaical Company. Debtor, Ca»e*No. 81-02901-HB-*.,
OfeJECtttiN1 *6 pioPO&Eb GRANT OF REPLACEMENT LIEN AND TO PROPOSED
DISCHARGE OF LIEN and accoapanying court order granting notion.
(Southern Dist., TX)
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9832.7
-37-
State ef Ohio. Petitioner v. William Lee Kovacs. ON PETITION
FoR A WRIT 6F CERTlORARl TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT, Brief for the United States as Amicus
Curlae. (Brief supporting appeal of Ohio to the Supreme Court).
n re Triangle Chemicals .Inc.. Case No. 80-00993 HS-7 MOTION'
'OR ALLOWANCE OF ADMINISTRATIVE EXPENSES AND PROPOSED ORDER
REQUIRING TRUSTEE TO PAY EPA's EXPENSES. Filed Aug. 22, 1983.
In the Matter of Quanta Resources Corp.. Debtor. State
of New York and City ot New yor*. Appellants^ v. Thomas
J. Q'Neiilf a» Trustee. Appellee. (QUANTA hereafter) Appeal
frott the District Court tor the District of New Jersey,
Brief of Appellants. (U.S. Court of Appeals for .the Third
Circuit, No. 83-5142).
QUANTA. Brief of the Commonwealth of Pennsylvania and
State of New Jersey, Afflict Curtat. (U.S. Court ox Appeals
for the Third Circuit, Mo. 83-5142).
In Re A.M. International. Inc.. Case No. 82-B-04922, Defendant's
(United States') Reply Memorandum in Support of Defendant's
Motion to Disniss.
State of Ohio v. Kovacs (Kovacs II), 717 F.2d 984 (6th Cir..
United States of America, et al. v. Johns Manville Sales
Corporation, tt al.. Civil No. al-299-D.Order ot tfte
District court denying United States and hew Hampshire
U.W.4.WK to vacate the automatic stay. (Nov. IS, 1982;
U.S. District CC., K.H)
State of Ohio v. William Lee Kovaes. Mo. 81-3220. Decision
affined District court and B*n*ruptcy Court decisions chat
Kovacs was entitled to protection of automatic stay. (June 16.
1982, U.S. Court of Appeals, Sixth Circuit)
United States ot America v. north Eastern Phacaaceutical
and" Chemical Co.. Inc.. at al.. Mo. •0-30Dto-CV-5M. Decision
denying detenaants1 motion to oismiss for lack ef personal
jurisdiction. (Junt 11, 19bl; Western District of Missouri.
S. Western Division)
Universal Metal Stamping. Inc. v. Pannco Machinery. Inc..
Bankruptcy Mo. flU6l26"2R. Jankniptcy court-held that automatic
stay does not stay a separate suit against the bankrupt s
"sister" corporation. (December 7, 1981; Eastern District.
Pennsylvania)
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9832.7
-38-
RESOURCES
Bankrupt eyMonograph conveyed to U.S. Attorntyi Offices
November 22, 1962. Summary of bankruptcy lav and procedure.
EPA Guidance Manual: Pursuing, RCRA Subpart H Interests
ICF. (February,
Brief in U.S. v. Mahltr (M.D. ?«.) drafted by Michael Steinberg.
Attorney, Environmental Defense Section, DOJ (April 1, 1983).
Discusses personal liability of corporate officers.
RULES
Memorandum fron William E, Foley, Director of the Administrative
Office of the United States Courts on CONTINUED OPERATION Of
THE BANKRUPTCY COURT SYSTEM AFTER DECEMBER 24, 1982, IN TH£
ABSENCE OF CONGRESSIONAL ACTION (the "Eoerjency Rules" or
"Interim Rules"), (December 3, 1982).
-------
®
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
•;/ WASHINGTON. DC 20460
JUK 13 1984
OSWER # 9832.10
MEMORANDUM
SUBJECT:
FROM:
TO:
Liability of Corporate Shareholders and Successor
Corporations For Abandoned Sites Under the Compre-
hensive Environmental Response, Compensation, and
Liability Act {CERCLA)
Courtney M. Price
Assistant Administrator for
and Compliance Monitoring
enforcement
Assistant Administrator for
Solid Waste and 'Emergency Response
Associate Enforcement Counsel for Waste
Regional Administrators
Regional Counsels
Introduction
The following enforcement memorandum, which was prepared
in cooperation with the Office of General Counsel, identifies
legal principles bearing on the extent to which corporate
shareholders and successor corporations may be held liable
for response costs that arise as a result of a release of a
hazardous substance from an abandoned hazardous waste facility.
In the discussion section pertaining to each part, the memorandum
reviews the law on the subject from established traditional
jurisprudence to current evolving standards. Although general
rules of liability *re delineated, these principles must be
carefully applied to the unique fact pattern of any given
case.
I. THE LIABILITY OF CORPORATE SHAREHOLDERS UNDER CERCLA
Background
Normally, it is the corporate entity that will be held
accountable for cleanup costs under CERCLA. In certain
-------
-2-
instances, however, EPA may want to extend liability to include
corporate shareholders. This may arise, for example, where a
corporation, which had owned or operated a waste disposal site
at the time of the contamination, is no longer in business.
Tfie situation may also occur if a corporation is still in
existence, but does not have sufficient assets to reimburse
the fund for cleanup costs. There are two additional policy
reasons for extending liability to corporate shareholders.
First, this type of action would promote corporate responsibil-
ity for those shareholders who in fact control the corporate
decisicn-making process; it would also deter other shareholders
in similar situations from acting irresponsibly. Second, the
establishment of shareholder liability would aid the negotiation
process and motivate responsible parties toward settlement.
Traditional corporation law favors preserving the corporate
entity, thereby insulating shareholders from corporate liability.
Nevertheless, as will be discussed below, there are exceptions
to this general principle that would allow a court to disregard
corporate form and impose liability under CERCLA on individual
shareholders.
Issue
What is the extent of liability for a corporate share-
holder under CERCLA for response costs that arise as a result
of a release of a hazardous substance from an abandoned hazardous
waste facility?
Summary
The question of whether EPA can hold a shareholder of a
corporation liable under CERCLA is a decision that must turn
on the unique facts specific to given situation. Generally,
however, in the interests of public convenience, fairness, and
equity, EPA may disregard the corporate entity when the shareholder
controlled or directed the activities of a corporate hazardous
waste generator/ transporter, or facility.
Discussion
Section 107(a)(2) of CERCLA provides that any owner or
operator of a facility which releases a hazardous substance
shall be liable for all necessary response costs resulting
from such a release. Section 101(20)(A)(iii) of CERCLA clearly
states that the term "owner or operator" as applied to abandoned
facilities includes "any person who owned, operated, or otherwise
-------
-3-
controlled activities at such facility immediately prior to
such abandonment* (emphasis added).
In addition, Sections 107(a)(3) and 107(a)(4) of CERCLA
impose liability for response costs on any person who arranged
for the disposal or treatment of a hazardous substance (the
generator), as well as any person who accepted a hazardous
lubstance for transport to the disposal or treatment facility
tthe transporter).
The term "person" is def- .n CERCLA Section 101(21)
as, inter alia, an individual, iirm, corporation, association,
partnership, or commercial entity. A shareholder may exist
as any of the forms mentioned in Section 101(21). Therefore, a
shareholder may be considered a person under CERCLA and, conse-
quently, held liable for response costs incurred as a result
of a release of a hazardous substance from a CERCLA facility
if the shareholder:
0 Owned, operated, or otherwise controlled activities
at such facility immediately prior to abandonment
[CERCLA Section 107(a)(2); Section 101(20)(A)(iii) ] :
0 Arranged for the disposal or treatment (or
arranged with a transporter for the disposal or
treatment) of the hazardous substance [CERCLA
Section 107(a)(3)]; or
• Accepted the hazardous substance for transport to
the disposal or treatment facility selected by such
person [CERCLA Section 107(a) (4)].
Notwithstanding CERCLA's statutory language, courts
normally seek to preserve the corporate form and thus maintain
the principle of limited liability for its shareholders. V
In fact, fundamental "to the theory of corporation law is
the concept that a corporation is a legal separate entity, a
legal being having «h existence separate and distinct from
V Sec Pardo v. Wilson Line of Washington. Ine^., 414 F.2d
~ 1145, 1149 (D.C. Cir. 1969); Krivo Industrial Supply Co.
v. National Distillers t Chem. Corp., 483 F.2d 1098,
1102 (Sth Cir. 1973). modified p«r curiam, 490.F.2d 916
(5th Cir, 1974); Homan and Crimen, Inc. v. Harris, 626
F.2d 1201, 1208 (Sth Cir. 1980).
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-4-
that of its owners." £/• This concept permits corporate
shareholders "to limit" their personal liability to the extent
of their investment." 2/ Thus, although a shareholder may
be considered a "person" under CERCLA (and therefore subject
to the Act's liability provisions), the application of corporate
law would tend to shield the shareholder from such liability.
Nevertheless, a court may find that the statutory language
itself is sufficient to impose shareholder liability notwith-
standing corporation la*. ^/ Alternatively, to establish
shareholder liability, a co"urt may find that the general prin-
ciples of corporation law apply but, nonetheless, set aside
the lirited liability principle through the application of
the equitable doctrine of "piercing the corporate veil."
Simply stated, the doctrine of piercing the corporate
veil refers to the process of disregarding the corporate
2/ Krivo Industrial Supply Co. v. National Distillers t Chem.
~ Corp., 4B3 F.2d 1098, 1102 (5th""Cir. 1973), modified per"
curiarn, 490 F.2d 916 (5th Cir. 1974).
V See United States v. Northeastern Pharmaceutical and
~~ Chemical Company , Inc. , et al., 80-5066-CV-S-4, memorandum
op. (W.D. Mo., 1984). In Northeastern Pharmaceuticaj. the
district court noted that a literal reading of Section
101 (20) (A) "provides that a person who owns interest in a
facility and is actively participating in its management
can be held liable for the disposal of hazardous waste."
(Memorandum op. at 36. * The court went on to find that
there was sufficient evidence to impose liability on one
of the defendants pursuant to this statutory definition
of "owner and operator," and the Section 107(a)(l) liability
provision of the Act. The fact that the defendant was a
major stockholder did not necessitate the application of
corporate law, and thus the principle of limited liability:
"To hold otherwise and allow [the defendant] to be shielded
by the corporate veil 'would frustrate congressional purpose
by exempting from th« operation of the Act a large class
of persons who are uniquely qualified to assume the burden
imposed by ICERCLAJ." (Memorandum op. at 37, citation
omitted. )
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entity to hold either corporate shareholders or specific
individuals liable for corporate activities. V
In order to determine whether to disregard corporate form
and thereby pierce the corporate veil, courts generally have
sought to establish two primary elements. */ First, that the
corporation and the shareholder share such"~a unity of interest
and ownership between them that the two no longer exist as
distinct entities. V Second, that a failure to disregard the
corporate form would create an inequitable result. 8/
The first element nay be established by demonstrating
that the corporation was controlled by an "alter ego." This
would not include "mere majority or complete stock control,
but complete domination, not only of finances, but of policy
and business practice in respect to the transaction attacked
I/ See Henn, LAW OF CORPORATIONS $$143, 146 (1961). This
doctrine applies with equal force to parent-subsidiary
relationships (i.e., where one corporation owns the
controlling stock of another corporation).
£/ Generally, courts have sought to establish these elements
in the context of various theories, such as the "identity
"instrumentality," "alter ego," and "agency" theories.
Although these terms actually suggest different concepts,
each employs similiar criteria for deciding whether to
pierce the corporate veil.
V See United States v. Standard Beauty Supply stores,
Inc., 561 F.2d 774, 777 (9th Cir. 1977); FMC Fin. Corp.
v. Murphree, 632 F.2d 413, 422 (5th Cir. 1980).
"/ See Automotrit Del Golfo de Cal. S.A. v, Resnick, 47 Cal.
2d 792, 796. 306 P.3d 1 (1957); DcWitt Truck Broker, Inc.
v. W. Ray Fleroming Fruit Co., 540 F,2d 681, 689 (4th
Cir. 1976). Some jurisdictions require a third element
for piercing the corporate veil: that the corporate
structure must have worked an injustice on, or was the
proximate cause of injury to, the party seeking relief.
See e.g., Berger v. Columbia Broadcasting System, Inc.,
453 F.2d 991, 995 < 5th Cir. 1972), cert, denied, 409
U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972); Lowendahl
v. Baltimore fc O.R.R., 247 A.D. 144, 287 N.Y.S. 62, 76
(1936), aff'd 272 N.Y. 360, 6 N.E.2d 56 (Ct. App. 1936),
but see, Brunswick Corp. v. Kaxman, 599 F.2d 34, 35-36
(2d Cir. 1979).
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so that the corporate er ty as to this transaction had at the
time no separate mind, * 1 or existence of its own.' V
In analyzing this first element, courts have generally
considered the degree to which corporate "formalities have
been followed [so as] to maintain a separate corporate iden-
tity." ££/ For example, the corporate veil has been pierced
tn instances where there had been a failure to maintain adequate
Corporate records, or where corporate finances had not been
kept separate from personal accounts. ££/
The second element of. the test is satisfied when the
failure to disregard the corporate entity would result in
fraud or injustice. ££/ This would occur, for example, in
cases where there has been a failure to adequately capital-
ize for the debts normally assocated with the business
undertaking, 1V or where the corporate form has been employed
to misrepresent or defraud a creditor. JJ_V
V Berger v. Columbia Broadcasting System, Inc., 453 F.2d
991, 995 (5th Cir. 1972), cert, denied, 409 U.S. 848,
93 S.Ct. 54, 34 L.Ed.2d 89 (1972).
Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir.
1982); See DeWitt Truck Broker, Inc. v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 686 n. 14 (collecting cases)
(4th Cir. 1976).
Lakota Girl Scout C., Inc. v. Havey Fund-Rai*. Man., Inc,,
519 F.2d 634, 638 (8th Cir. 1975); Dudley v. Smith, 504
F.2d 979, 982 (5th Cir. 1974).
Some courts require that there be actual fraud or injustice
akin to fraud. See Chenqelis v. Cenco Instruments Corp.,
386 F. Supp 862 (W.D. Pa.) aff'd mem., 523 F.2d 1050 (3d
Cir. 1975). Host jurisdictions do not require proof of
actual fraud. See- DeWitt Truck Brokers v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 684 (4th Cir. 1976).
See Anderson v. Abbot, 321 U.S. 349, 362, 64 S.Ct. 531,
88 L.Ed. 793 (1944); Machinery Rental, Inc. v. Herpel
(In r« Multiponies, Inc.), 622 F.2d 709, 717 (5th Cir.
19-80).
See FMC Fin. Corp. v. Murphree, 632 F.2d 413, 423 (5th
CTr. I960).
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-7-
In applying the dual analysis, courts act under consider-
ations of equity; therefore, the question of whether the
corporate veil will be lifted is largely one of fact, unique
to a given set of circumstances. However, the substantive
law applicable to a case may also have great importance. For
fxample, in applying state corporation law, state courts have
Been generally reluctant to pierce the corporate veil. 15/
Federal courts, however, in i?-lying federal standards, "Have
shown more willingness to dis:?;ard the corporate entity and
hold individuals liable for corporate actions.
In many instances federal decisions do draw upon state
law and state interpretations of common law for guidance. £
However, federal courts that are involved with federal
question litigation are not bound by state substantive law
or rulings. ££/ In such cases, either federal common law
15/ See discussion in Note, Piercing the Corporate Law Veil;
The Alter Ego Doctrine Under Federal Common Law, 95
Harvard L,R. 853, 855 (1982).
It is well settled that a corporate entity must be dis-
regarded whenever it was formed or used to circumvent
the provisions of a statute. See United States v. Lehigh
Valley R.R., 220 U.S. 257, 259, 31 S.Ct. 387/55 L.Ed.
458 (1911); Schenley Distillers Corp. v. United States,
326 U.S. 432, 437, 66 S.Ct. 247, 90 L.Ed. 181 (1945);
Kavanaugh v. Ford Motor Co., 353 F.2d 710, 717 (7th
Cir. 1965); Casanova Guns, Inc. v. Connally, 454 F.2d
1320, 1322 (7th Cir. 1972).
See Seymour v. Hull t Moreland Enq'q, 605 F.2d 1105 (9th
Cir. 1979)? Rules of Decision Act, 28 U.S.C. $1652 (1976).
Generally, federal courts will adopt state law when to
do so is reasonable and not contrary to existing federal
policy. United States v. Polizzi, 500 F.2d 856, 907 (1974)
See also discussion in note 19, infra.
UNITED STATES CONSTITUTION art. VI, cl. 2.
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-8-
or specific statutory directives may determine whether or not
to pierce the corporate veil. 19/
See Anderson v. Abbot, 321 U.S. 349, 642 S.Ct. 531, 88
L.Ed. 793 (1944); Town of Brookline v. Gorsueh, 667 F.2d
215, 221 (1981). For a general discussion of federal
common law and piercing the corporate veil see, note 15,
supra. The decision as to whether to apply state law or
a federal standard is dependent on many factors:
"These factors include the extent to which: {1} a
need exists for national uniformity; (2) a federal
rule would disrupt commercial relationships predicated
on state law; (3) application of state law would
frustrate specific objectives of the federal program;
(4) implementation of a particular rule would cause
administrative hardships or would aid in administrative
conveniences; (5) the regulations lend weight to the
application of a uniform rule; (6) the action in
question has a direct effect on financial obligations
of the United States; and (7) substantial federal
interest in the outcome of the litigation exists.
Even with the use of these factors, however, whether
state law will be adopted as the federal rule or
a unique federal uniform rule of decision will be
formulated remains unclear. The courts have failed
to either mention the applicable law or to state the
underlying rationale for their choice of which law to
apply." Notei Piercing the Corporate Veil in Federal
Courts: Is Circumvention of a Statute Enough?, 13 Pac.
L.J. 1245, 1249 (19821 (citations omitted).
In discussions concerning CERCLA, the courts and Congress
have addressed several of the above mentioned factors.
CERCLA* For example, the need for national uniformity to
carry out the federal superfund program has been clearly
stated in United States v. Chem-Dyne, C-1-82-84D, slip op.
(S.D. Ohio, Oct. 11, 1983). In Chem-Dyne, the court stated
that the purpose of CERCLA was to ensure the development
of a uniform rule of law, and the court pointed out the
dangers of a variable standard, on hazardous waste disposal
practices that are clearly interstate. (Slip op. at
11-13.) See also, Ohio v. Georqeoff, 562 F. Supp. 1300,
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The general rule applied by federal courts to cases in-
volving federal statutes is that "a corporate entity may be
disregarded in the interests of public convenience, fairness
and equity." ££/ In applying this rule, "federal courts
^ill look closely at the purpose of the federal statute to
Determine whether that statute places importance on the
corporate form." £v Furthermore, where a statute contains
specific directives on when the corporate entity may be
disregarded and indiviauals held liable for the acts or debts
of a valid corporation, courts must defer to the congressional
mandate. ££/
Thus, even under general principles of corporation law,
courts may consider the language of statute in determining
whether to impose liability on corporate shareholders.
Therefore, a court may use the statutory language of CERCLA
either as a rationale for piercing a corporate veil (when
corporation law is applied) or as an independent statutory
basis for imposing liability (notwithstanding the general
principles of corporation law). 23/
19 (continued)/
1312 (N.D. Ohio, 1983); 126 Cong. Rec, H. 11,787 (Dec.
3, 1983).
The Chem-Dyne court stated that "the improper disposal
or release of hazardous substances is an enormous and
complex problem of national magnitude involving uniquely
federal interests." (Slip op. it'll.) The court further
noted that "a driving force toward the development of
CERCLA was the recognition that a response to this
pervasive condition at the State level was generally
inadequate: and that the United States has a unique
federal financial interest in the trust fund that is
funded by general and excise taxes." (Slip op. at 11,
citing, 5 U.S. Code Cong, « Ad. News at 6,142.) See
also, 126 Cong. R«c. at H. 11,801.
Capital Telephone Company, Inc. v. F. C. C., 498 F.2d 734,
738 (D.C. Cir. 1974).
Town of Brookline v. Gorsuch, 667 F.2d 215, 221 (1981).
Anderson v. Abbot, 321 U.S. 349, 365, 64 S.Ct. 531,
88 L.Ed 793 (1944).
See discussion, supra, note 4.
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-10-
Conclusion
The Agency should rely upon the statutory language of the
Act as the basis for imposing liability on any person who
controlled or directed the activities of a hazardous waste
facility immediately prior to abandonment, or on any person
frho is a generator or transporter, notwithstanding the fact
(hat that individual is a shareholder. Additionally, and
alternatively, the Agency may rely on the general principles
of corporation law to pierce the corporate veil by applying
the current federal standard of public convenience, fairness,
and equity. However, when seeking to pierce the corporate
veil, the Agency should be prepared to apply the traditional
dual test previously discussed in order to provide additional
support for extending liability to corporate shareholders.
II. THE LIABILITY OF SUCCESSOR CORPORATIONS UNDER CERCLA
tiackground
Section 107(a)(2) of CERCLA extends liability for response
costs to "any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of.* Situations may arise, however,
where a corporation, which previously had owned or operated a
hazardous waste facility, now 'transfers corporate ownership to
another corporation. In such, cases, it is important to determine
whether the liability of the predecessor corporation's action
regarding the disposal of hazardous waste is also transferred
to the successor corporation. 2V
Issue
What is the extent of liability for successor corporations
under CERCLA?
The discussion that follows is equally applicable to
successor corporations of generators and transporters
associated with hazardous substances released from CERCLA
facility.
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Summary
When corporate ownership is transferred from one cor-
poration to another, the successor corporation is liable for
the acts of its predecessor .if the new corporation acquired
^wnership by merger or consolidation. If, however, the
Acquisition was through the sale or transfer of assets, the
successor corporation is not liable unless:
a) The purchasing corporation expressly or
impliedly agree* to assume such obligations;
b) The transaction amounts to a "de facto" consoli-
dation or merger;
c) The purchasing corporation is merely a continu-
ation of the selling corporation; or
d) The transaction was fraudulently entered into
in order to escape liability.
Notwithstanding the above criteria, a successor corpora-
tion may be held liable for the acts of the predecessor
corporation if the new corporation continues substantially
the same business operations as the selling corporation.
Discussion
The liability of a successor corporation, according to
traditional corporation law. is dependent on the structure of
the corporate acquistion. £V Corporate ownership may be
transferred in one of three ways: 1) through the sale of stock
to another corporation; 2) by a merger or consolidation with
another corporation; or 3)' by the sale of its assets to another
corporation. **/ Where a corporation is acquired through -the
•purchase of all of its outstanding stock, the corporate
entity remains intact and retains its liabilities, despite
2V Set S.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Sup«r. 447, 419 A.24 1151 (Super. Ct. Law Div. 1980).
Note, Torts - Product Liability - Successor Corporation
Strictly Liable for Defective Products Manufactured by
the Predecessor Corporation, 27 Villanova L.R. 411, 412
(1980) (citations omitted) [hereinafter cited as Note,
Torts - Product Liability!.
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-12-
th* change of ownership." 27/ By the same token, a purchasing
corporation retains liability for claims against the predecessor
company if the transaction is in the form of a merger or con-
solidation. ££/ Where, however, the acquisition is in the form
of a sale or other transference of all of a corporation's assets
to a successor corporation, the latter is not liable for the
debts and liabilities of the predecessor corporation. **/
There are four exceptions to this general rule of non-
liability in asset acquisitions. A successor corporation
is liable for the actions of its predecessor corporation if
one of the following is shown:
1) The purchaser expressly or impliedly
agrees to assume such obligations;
2) The transaction amounts to a "de facto"
consolidation or merger;
3) The purchasing corporation is merely a
continuation of the selling corpor-
ation; or
4) The transaction is entered into fraudulently
in order to escape liability. 30/
The application of the traditional corporate law approach
to successor liability has in many instances led to particularly
N.J. Transp. Dep't v. PSC Resources, Inc., 175 N,J.
Super. 447, 419 A.2d 1157 (Super. Ct. Law Div. 1980).
!£• A merger occurs when one of the combining corpor-
ations continues to exist; a consolidation exists when
all of the combining corporations ar.e dissolved and an
entirely new corporation is formed.
See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980),
citing, Jackson v. N.J. Manu. Ins. Co., 166 N.J. Super.
488, 454 (Super. Ct. App. Div. 1979), cert, denied, 81
N.J. 330 (1979).
!£/ Id>' Note, Torts - Product Liability, supra note, 26 at
413 n. 15-18.
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-13-
harsh and unjust results, especially with respect to product
liability cases. ££/ Therefore, in an effort to provide an
adequate remedy and to protect injured consumers, courts
have broadened the exemptions to the general rule by either
nibdifying or recasting the "de facto" and "mere continuation"
exemptions to include an element of public policy. 32/
More recently, however, the general rule has been aban-
doned altogether by several jurisdictions and, in essence, a
new theory for establishing successor liability has evolved
based upon the similarity of business operations. 33/ The
new approach has been cast by one court in the following way:
"jwjhere...the successor corporation acquires
all or substantially all of the assets of the
predecessor corporation for cash and continues
See McKee v. Harris-Seybold Co.. 109 N.J. Super. 555,
264 A.2d 98 (Super. Ct. Law Div, 1970), aff 'A per_ cur Jam,
1J8 N.J. Super. 480, 288 A.2d 585 (Super. Ct. App. Div.
1972); Kloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (D.
Colo. 1968).
See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980);
See also/ Knapp v. North Am. Rockwell Corp., 506 F.2d
361 (3d Cir. 1974), cert, denied, 421 U.S. 965 (1975);
Cyr v. B. Offen t Co., 501 F.2d 1145 (1st Cir. 1975);
Turner v. Bituminous Gas Co., 397 Mich. 406, 244 N.W.2d
873 (1976),
The theory has also been referred to as the "product-
line* approach. In adopting this new approach to
successor liability, some courts have abandoned the
traditional rule of non-liability in asset acquisitions.
See e.g., Ray v. Alad Corp.. 19 Cal. 3d 22, 560 P.2d
3, 136 Cal. Rptr. 574 (1977). Other courts have con-
sidered the new approach as an exemption to the general
rule. See e.g., Daweko v. Jorqensen Steel Co., 290 Pa.
Super. Ct. 15, 434 A.2d 106 (1961); Note, forts - Product
Liability, supra note, 26 at 418 n. 38. And, a few
jurisdictions have rejected the new approach. See
Travis v. Harris Corp., 565 F.2d 443 (7th Cir. 1977);
Tucker v. Paxson Hach. Co., 645 F.2d 620 (8th Cir. 19B1).
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-14-
essentially the same manufacturing operation
as the predecessor corporation the successor
remains liable for the products liability claims
of its predecessor." 3V
This theory of establishing successor liability differs
from the "de facto" and "mere continuation* exemptions in that
the new approach does not examine whether there is a continuity
of corporate structure or ownership (e.g^, whether the predecessor
and successor corporation share a common director or officer).
Instead, according to the new theory, liability will be imposed
if the successor corporation continues essentially the same
manufacturing or business operation as its predecessor corporation,
even if no continuity of ownership exists between them. 35/
Until recently, this new approach for establishing successor
liability was confined mostly to product liability cases.
However, a recent New Jersey 'decision extended its application
to the area of environmental torts. The Superior Court of New
Jersey, in N.J. Transportation Department v. PSC Resources,
Inc. _/r rejected the traditional corporate approach to
successor liability where the defendant and its predecessor
corporation had allegedly discharged hazardous wastes. The
court reasoned that the underlying policy rationale for
abandonment of the traditional approach in defective product
cases is applicable to environmental torts. Therefore, the
court held that a corporation which purchased assets of another
corporation and engaged in the practice of discharging hazar-
dous waste into a state-owned lake is strictly liable for
present and previous discharges made by itself and the prede-
cessor corporation because the successor continued the same
waste disposal practice as its predecessor.
34/ Ramirez v. Amstead Indus., Inc., 171 N.J. Super. 261, 278,
408 A.2d BIB (Super. Ct. App. Div. 1979), aff 'd, 86 N.J.
332, 431 A.2d 811 (1981).
§£• Ray v. Al ad Corp., 19 Cal. 3d 22, 560 ?.2d 3, 136 Cal.
Rptr7a74 (1977); some form of acquisition, however, is
still required. See Meisal v. Modern Press, 97 Wash.
2d 403, 645 P.2d 693.
36/ 175 N.J. Super. 447, 419 A.2d 1151 (Super, Ct. Law Div.
1980);
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-15-
A similar "continuity of business operation" approach has
been used in cases involving statutory violations. *'/ The
Ninth Circuit, for example, held in a case involving the Federal
Insecticide, Fungicide, and Rodenticide Act IFIFRA) ^£/, that
"EPA's authority to extend liability to successor corporations
stems from the purpose of the --»-ute it administers, which is
fo regulate pesticides to pr: the national environment." 39/
furthermore, the court noted ir.ac "(t]he agency may pursue the""
objectives of the Act by imposing successor liability where it
will facilitate enforcement of the Act." ££/ After establishing
that there had been violations of FIFRA by the predecessor
corporation, the court found that there was substantial continuity
of business operation between the predecessor and successor
corporations to warrant imposition of successor liability.
Although CERCLA is not primarily a regulatory statute,
public policy considerations and the legislative history of
the Act clearly indicate that federal law would be applicable
to CERCLA situations involving successor liability. *A/
Therefore, it is reasonable to assume that courts wouTd similarly
adopt the federal "continuity of business operation approach"
in cases involving CERCLA.
Conclusion
In establishing successor liability under CERCLA, the
£V See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94
S.Ct. 414, 38 L.Ed2d 388 (1973); Slack v. Havens, 522
F.2d 1091 (9th Cir. 1975).
f£/ 7 U.S.C. §136 et seq.
39/ Oner II, Inc. v. United States Environ. Protection
Agency, 597 F.2d 184, 186 (9th Cir. 1979).
*o/ rd.
*V See discussion, supra, n. 19? One of Congress' primary
concerns in enacting CERCLA was to alleviate the vast
national health hazard created by inactive and abandoned
disposal sites. See e.g., Remarks of Rep. Florio, 126
Cong. Rec. H. 9,154 (Sept. 19, 1980), 126 Cong. Rec.
H. 11,773 (Dec. 3. 1980).
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-16-
Agency should initially utilize the "continuity of business
operation" approach of federal law. However, to provide
additional support or an alternative basis for successor
Corporation liability, the Agency should be prepared to apply
the traditional exemptions to the general rule of non-liability
in asset acauisitions.
in asset acquisitions,
cc: A. James Barnes, General Counsel
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> I.M v m->NM£NTAL PROTECTION AGENCY
^ji^J ' WASHINGTON. D.C. 204(0
W
lS^C' r' C* S-C'r 3"C V.^O'O SO'' 0 /.Orr '/3"CDe"-e
OCT 2 '984
MEMORANDUM
SUBJECT: EPA/State Relationship in Enforcement Actions for
Sites on the National Priorities List
TO: EPA Regional Administrators
Directors, State Solid Waste Programs
The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA) empowers the Environmental
Protection Agency to take certain enforcement actions to obtain
responsible party cleanup of sites on the National Priorities
List (NPL). CERCLA does not, however, address the enforcement
authority or role of States. The result is that EPA and States
have, to this point, proceeded essentially independently, despite
common, purposes. Needed site coordination has been lacking in
many instances, and there have been occasional conflicts regard-
ing policies and specific site results. The cause has not been
disagreement over broad goals, but rather the absence of a basic
framework for the relationship.
The attached EPA policy statement creates such a framework.
It has been developed over the past year in close consultation
with EPA's Regions, and with the States through the Association
of State and Territorial Solid Waste Management Officials and
the National Association of Attorneys General. Based on the
recognition that EPA and the States share common interests, the
policy stresses increased coordination and cooperation in en-
forcement actions, beginning with site planning and continuing
through to selection and implementation of sit* remedy. It also
resolves several operational issues in the current relationship:
criteria arc established for determining lead responsibility for
enforcement sites; EPA's intent to begin providing funding assist-
ance for remedial investigations and feasibility studies at State-
lead enforcement sites is stated; the nature and scope of EPA
and State involvement in the other's site activities are defined;
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>• .'.
•2-
•nd provision is made for EPA/State site agreements through which
EPA and State roles and responsibilities at enforcement sites
can be agreed and documented to prevent later misunderstandings
or misapprehensions.
Taken together, the actions described in the policy provide
• solid foundation for an effective EPA/State relationship in
pursuing enforcement actions at NPL sites. The absence of a
statutory structure for the relationship has presented some
problems in the past* and issues .will continue to arise, but a
mechanism has been created to allow EPA and States to deal with
those issues in a way that can minimize conflict and improve the
chances for acceptable solutions.
Lee-M. Thorr.as
Ass-.stant Administrator
fcr Solid Waste and
Emergency Response
Environmental Protection
Agency
La~larchik
President, Association
of State and Territorial
Solid Waste Management
Officials
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^ , •-- j,« ,6.3 trx viKUNMENTAt PROTECTION AGENCY
^ WASHINGTON, D.C. ««
OCT 2 '984
SOLID WAITI AND (M(«CINCV MS»ONSE
MEMORANDUM
SUBJECT: EPA/State Relationship in Enforcement Actions for
n the National Priorities List
FROM:
Assistant Administrator
TO: Regional Administrators
PURPOSE
One of the major goals of EPA enforcement activities under
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), and of State enforcement activities under
State authorities, is to obtain maximum possible and timely respon-
sible party cleanup of sites on the National Priorities List .(NPL),
""he purpose of this policy statement is to establish a bas« or.
which an effective EPA/State relationship can be constructed.
GENERAL GUIDING PRINCIPLES
The actions to be taken to establish a more effective rela-
tionship between EPA and the States in NPL site enforcement
activities are guided by certain general principles. In brief,
they" are:
• Aggressive enforcement efforts on a broad scale are
essential if EPA and the States are to make substantial
progress toward dealing effectively with sites on the
National Priorities List.
• State contributions. to NPL »it« enforcement have been
and will continue to be significant.
• Close cooperation and coordination between EPA and the
States in planning and carrying out enforcement activi-
ties is necessary to obtain maximum effect and to avoid
possible conflicts and duplication.
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-2-
• States and EPA can maximize the number of enforcement
actions by operating independently, conducting joint
actions only where such action will best serve EPA and
State interests.
• EPA and State enforcement policies and procedures need
not be identical/ but results of enforcement actions
should be mutually acceptable.
• To the extent that State, and EPA enforcement programs
parallel each other in substantive respects, such as in
the process for determining the appropriate extent of
remedy, the need for oversight of, and direct involvement
in, the other's activities will be minimized.
• Sharino of information between EPA and the States is key
to developing a more effective relationship.
• State experience in hazardous waste enforcement must be
recocr.ized and accommodated in formulating agency policies.
• EPA will provide financial and technical support for
State enforcement actions to the extent practicable and
allowed by law.
• EPA remains ultimately responsible for cleanup at NPL
sites, and retains the authority to take enforcement or
response' actions where needed.
BACKGROUND
From the survey of EPA Regional and headouarters officials
conducted to assess the nature and extent of the current EPA/State
relationship, and as a result of meetings for the same purpose with
State representatives under the auspices of the Association of
State and Territorial Solid Waste Management Officials (ASTSWMO)
and the National Association of Attorneys General (NAAG), it is
clear that EPA and the States generally agree on broad goals in
hazardous waste enforcement activities. It is clear also that
frequently there are differences between EPA and States, and among
States, in capabilities and in legal and technical approaches
toward achieving these goals. These differences — whether based
in provisions of law, policy decisions, or resource constraints —
can lead to situations where a responsible party cleanup or settle-
ment agreement obtained by EPA'or a State does not satisfy the
requirements or needs of the other*
Problems created in such situations are particularly acute
when they arise in connection with NPL sites. First, EPA and the
State each may be called on to explain or justify site results,
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OSWSR t 9831.3
regardless of which had the lead enforcement responsibility.
Second, EPA potentially could be put in the position of denying a
State request to delete from the NPL a State-lead site, or of seek-
ing to delete an agency-lead site in the face of State objections.
Uniformity of EPA and State legal and technical approaches
is not essential to prevent these situations, nor is uniformity
practicable. CERCLA is unusual among Federal environmental laws
in that it does not create a mechanism for authorizing State
enforcenent programs on the basis of certain minimum legal and
resource requirements that States must meet. Accordingly, there
is no requirement that State legal provisions and technical pro-
cedures be consistent with Federal standards, nor are there the
usual mechanisms for required State reporting and Federal over-
sight. This means that EPA and the States must establish a
cooperative relationship in order to prevent, or at least minimize,
those instances where differences in capability or approach result
in a responsible party cleanup or settlement which is not mutually
acceptable.
The purpose of this policy,, therefore, is to seek to create
an effective EPA/State relationship by taking certain actions to
increase cooperation and coordination, and by establishing a
mechanism for ongoing EPA/State efforts to address issues that
may later arise.
SPECIFIC ISS'JES I*: TH: CUPFENT EPA^STATE RELATIONSHIP
To establish the context for a discussion of the specific
actions that EPA and the States can take to build an effective
relationship, it is important first to describe briefly the issues
in the current relationship that have been identified through the
survey of EPA personnel and the meetings with State representatives.
These issues are divided among Coordination, State Enforcement
Authorities and Procedures, and Resources.
Coordination. The absence of a comprehensive policy regard-
ing EPA/State relations has left the Regional Offices and States
essentially in the position of determining for themselves the
nature and- extent of their relationship. As a result, the level
of coordination and cooperation varies among the Regions, and
even from State-to-State within the same Region.
Further, limited guidance from EPA to the States on specific
issues has contributed to the differences in policies and Proce-
dures that often exist among States and between States and EPA.
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-4-
Problens created by the lack of a comprehensive EPA/State
policy and by limited issue-specific guidance have been compounded
by the absence of systematic information sharing between EPA ar,J
the States on the status of enforcement actions. Combined with"
the lack of procedures for coordinating case management, EPA ar,d
States therefore have had limited knowledge of the status of the
other's activities. These factors have led to occasional delays
and conflicts in administrative enforcement and litigation, and to
the discovery of problems — if discovered at all — often late in
the enforcement process.
State Enforcement Authorities and Procedures. Most States
must rely either~on broad State environmental or general statutes,
or on State hazardous waste legislation enacted prior to CERCLA.
As a consequence, few States have the full range of authorities
available to EPA. While this has tsot prevented State enforcement
actions against responsible parties, it has meant that in some
instances actions have been limited in scope or coercive potential.
For example, few states have provisions analogous either to
Section 106 of the Act which provides for fines of up to $5,000
per day against any responsible, party who willfully violates or
fails or refuses to comply with an administrative order issued
under the section, or to Section 107 of CERCLA which enables EPA
to seek treble damaoes from any responsible party who fails with-
out sufficient cause to comply with a Section 106 administrative
order.
With regard to enforcement procedures, two particular issues
have arisen. First, some States work informally with responsible
parties, which can lead to arrangements that are difficult to
enforce successfully. Second, State negotiations with responsible
parties often are conducted without a time limit, and in some
instances involve one round led by the administrative agency and
a second round led by the attorney q«n«r*l's office. In either
instance, negotiations easily can become protracted.*/ In these
circumstances, it is often difficult to assess the eTfectiveness
or the likelihood of success of State enforcement efforts' or
negotiations. This uncertainty makes it difficult for'EPA to
define, or to plan for implementation of, its role at the site
in a manner that is sensitive both to State concerns and to public
concerns about achieving response objectives at the site. Further,
this type of situation can create EPA/State conflicts if site or
programmatic concerns cause EPA to conclude that effective enforce-
ment action is required on an expedited or more certain schedule.
I/ EPA's experience with negotiations without tiro* limits resulted
7n the agency developing a policy which targets negotiations for
completion within 60 to 120 days, unless more time is needed to
resolve complex issues with responsible parties who in the agency's
view are negotiating in good faith.
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-5-
Resources. Funding for State hazardous waste enforcement
programs, whether from appropriations or in some instances from
fees and taxes, ranges fro?r, negligible to substantial. The norm,
however, is less than adequate. A survey conducted by ASTSWMO in
mid-1963 showed that anticipated FY 1964 increases in fundinc among
the responding 47 States still would leave these States, in the
aggregate, with staffing levels some 40 percent short of optiitiu-.
The survey did not categorize technical and administrative person-
nel resources as either program- or enforcement-specific, but this
distinction is not significant, because enforcement activities
depend extensively on technical resources, and the survey indicates
overall conditions.
Limited funding has had a particularly negative effect with
respect to the availability of certain necessary disciplines. The
ASTSWMO survey indicates that the number of State-employed engi-
neers (civil, sanitary, and environmental), chemists, geolocists/
hydrologists, and soil scientists is less than half the number
needed. No similar data exist with respect to legal resources
available to State administrative agencies and attorney general
offices, but discussions with 'State officials indicate that more
resources are necessary, particularly with regard to para-legal
personnel, investigators, and administrative support.
Limitations in State funding also have been felt with recard
to laboratory and analytical capabilities, training opportunities,
and the'adequacy of case preparation and documentation.
The net effect of these resource limitations is to constrain
the scope of State enforcement activities, particularly with
respect to the number of actions that can be taken, but also in
part with respect to the detail of field investigation and site
analys is.
ACTIONS TO BE TAKEN'
As is clear from the summary discussion of issues confrontins
EPA and the States in the current relationship, some'issues cannot
be resolved throuoh this statement of policy. For example, funding
assistance for additional personnel resources needed by the States
is beyond the current ability of EPA to provide, and any inade-
quacies that may exist in State legal authorities is a matter for
States to resolve on an individual basis. However, most of the
issues can be resolved by EPA and the States through the actions
described in the remaining sections of this document.
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-6-
these actions are based not only on the general cuidinq
principles Stated earlier, but also on a specific operating con-
sideration. EPA is responsible for listing sites on the National
Priorities List and for deleting sites that have been cleaned UD
appropriately. This means that EPA has a responsibility to assure
to the extent possible that human and environmental risks at
sites are eliminated or at least reduced to acceptable levels.
Sites cannot be deleted without such assurances.
The actions to be taken, described in the remainder of this
document, address:
• funding assistance to States,
• criteria for determining lead responsibility for enforce-
ment sites,
• enforcement planning activities,
0 extent of EPA and State involvement in the other's activi-
ties where the other has the enforcement lead,
0 development of EPA/State Enforcement Site Agreements to
clearly delineate the EPA/State relationship at each
enforcement site,
0 ne chan isrr.s .for scaring enforcement information,
• State involvement in the development of EPA enforcement
policies and guidance for NPL sites, and
• ongoing cooperation with States through ASTSWMO and NAAG
to deal with issues that arise in the future.
Funding, to Assist State Enforcement Activities. It is clear
from the ASTSWKO survey that States require a broad range of
assistance to support needed qualitative and quantitative increases
in State enforcement activity.- Consequently/ the issue of enforce-
ment funding assistance from EPA was a major focus of an agency
work group that was formed to consider ways in which the scope of
multi-site cooperative agreements night be expanded. ASTSWMO and
NAAG were represented on the work group.
The EPA Office of General Counsel (OGC) concluded that CERCLA
authorizes the Agency to fund remedial investigations and feasi-
bility studies at State-lead enforcement sites. Accordingly, the
work group developed guidance to incorporate these activities in
multi-sit* and individual site cooperative agreements. This guid-
ance will be issued as part of an addendum to the manual State
Participation in the Superfund Remedial Program. Funding of RI/FSs
at selected State-lead enforcement sites will begin in FY 1985.
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-7-
However, the Office of General Counsel also concluded that
CERCLA does not authorize funding of other State enforcement costs.
In its opinion dated July 20, 1984, OGC stated that "the Superfund
eligibility of State enforcement costs is limited to those activi-
ties authorized by section 104(b). Section 104(b) authority does
not extend to litigation or other efforts to compel private party
cleanups, or to monitoring or community relations activities asso-
ciated with such cleanups. Payment of these State enforcement-
related costs will require more explicit statutory authority than
exists in section 104."
Site Classification. Current interim guidance for classify-
ing sites as Fund- or enforcement-lead establishes criteria for
making classification determinations. It does not, however, pro-
vide specifically for State involvement in the process. While
some Regions may consult with States in making classification
decisions, there has been no consistent effort in this regard.
The result is that there have been occasions where sites that have
been classified as Fund-lead might properly have been classified
instead as an enforcement site, based on information and data
available to the State, with the State assuming the lead responsi-
bility. Accordingly, Regions should consult with States in classi-
fying sites to ensure that fuller information is considered before
decisions are made. The final site classification guidance will
incorporate appropriate provisions.
The Regions and States should jointly make determinations as
to whether an enforcement site is to be EPA- or State-lead, or
"shared-lead" where both the Region and the State will pursue site
enforcement. A site should be classified as EPA-lead or State-
lead where direct participation in enforcement actions on the part
of the other is not anticipated or is expected to be minimal. A
site should be classified as shared-lead where the Region and State
determine that joint enforcement action can best achieve effective
site cleanup. Regardless of a site's classification, the Regions
and States should adhere to the provisions described later in this
document regarding -consultation and cooperation in the course of
enforcement activities.
In determining lead responsibility for enforcement sites, the
Regions and States should apply the following considerations:
(1) past site history, i.e., whether there has been EPA or
State enforcement activity at the site;
(2) the effectiveness of enforcement actions to date;
(31 the strength of legal evidence to support EPA or State
act ion;
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<—•«—. It rfw-*..»
-8-
(4) the severit- :f problems at the site;
(5) the national 5 :;-.if icance of legal or technical issues
presented by :.'.* site; and
(6) the availability of EPA and State legal authorities and
personnel and funding resources adequate to enable
effective action.
A site initially classified as State-lead on the basis of the
above considerations will be classified finally as State-lead if
the State assures that it will:
(1) prepare, or have the responsible party prepare, an RI/FS
(or equivalent as agreed by the Region and the State),2/
and provide for public comment, in accordance with EPA""
guidance;
(2) conduct negotiations with responsible parties fo.rroally
(e.g., culminating in the issuance of an enforceable
order, decree, or equivalent) and, to the extent practic-
able, within agreed time limits;
(3) provide ftr public comment on settlements, voluntary and
negotia-rc cleanups, and consent orders and decrees in
accordance with EPA guidance;
(4) pursue and ensure implementation of a remedy that is at
least as protective of public health, welfare and the
environment as a cost-effective remedy as that term is
defined in the National Contingency Plan; and
(5) keep EPA informed of its activities, including -consulting
with the Regional Office when issues arise that do net
have clear-cut solutions.
These assurances should be incorporated in the EPA/State
Enforcement Site Agreement (described later in this document).
£/ In accordance with agency guidance issued on March 27, 1984,
"regarding procedures for deleting cites from the NPL, documenta-
tion to support deleting a State-lead enforcement site "should
include the State feasibility study (if one has been prepared),
... or a copy of an EPA or State study, or an EPA or State review
of a responsible party study or documents, used by the Region to
determine that . . . no further cleanup is appropriate." To the
•xtent that a State or responsible party conducts an RI/FS in
accordance with agency guidance, the deletion process for State-
lead enforcement sites will be simplified.
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-9-
Where a State is unable to provide the above assurances in
connection with a cite that initially has been classified as
State-lead, the site cannot finally be designated as State-lead.
Zn such instances, consideration should be given to classifying*
the site as shared-lead so that State enforcement interests can
be directly represented in site actions.
Finally, all current EPA- and State-lead enforcement .site
designations should be reviewed by the Regions and States in
light of these criteria and modified as necessary.
Planning. In accordance with recent agency guidance, site
management plans are to be de'-"*:—«d for all sites on the National
Priorities List. As indicate ? guidance, site management
plans are intended principally dynamic planning tools for
allocating resources and estima* . the timing of technical and
legal actions. For EPA-lead enforcement sites, the Region should
develop the plan in consultation with both the State administrative
agency and the State attorney general's office.^/ Such consultation
is necessary to ensure early that interested StTte officials are
aware of the general schene and timing of EPA's intended actions.
For State-lead enforcement sites', the State should develop the
plan in consultation with the Region, and obtain the concurrence
of the State attorney general's office before the plan is .adopted.
Site management plans for shared-lead sites should be developed
jointly.
Extent of EPA Involvement in State-lead Enforcement
Actions. There are two aspectsto EPA involvement in State-lead
actions. The first concerns the type of assistance and support
that the Region agrees to provide. The second concerns actions
that the Region subsequently determines to be necessary in the
course of State enforcement ac.tivity.
Among the types of assistance and support that Regions can
provide are review of technical and legal, documents, making con-
tractor assistance available, providing direct technical assistance
through Regional personnel, and providing expert witness testimony
through EPA or contractor personnel. Regions should plan to
review technical and legal documents associated with State-lead
enforcement sites? other assistance and support should be provided
to the extent that resources allow. Appropriate provisions should
be incorporated in the EPA/State Enforcement Site Agreement.
V In some States, the attorneys who prosecute enforcement actions
Ire assigned directly to the program offices. In this situation,
involvement of the attorney general's office may be unnecessary.
Therefore, statements made at various places in this document
referring to consultation with or concurrence of the attorney
general's office should be read in this context.
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-10-
Where a State does not -snt EPA assistance in its site acti-
vities, particularly with recard to review of technical and legal
documents, the Region shoulc jivise the Stste that it must accept
the risk that cleanup may lacer prove to be inappropriate, in
such an instance, the site cculj net be removed from the NPL, and
subsequent EPA enforcement action might be necessary.
Regions should continually monitor State-lead enforcement
activities. Where the Region determines that the terms of the EPA/
State Enforcement Site Agreement are not. being followed or that the
State is not making effective or timely progress, the Region should
consider involving the agency in site activities to a greater degree
than previously agreed. Potential actions include taking enforcement
action in lieu of State action, and assuming lead responsibility
for the site.
Determinations regarding whether greater EPA involvement is
necessary, and the nature of response,"will be made jointly by the
Region and the Office of v.'aste' Programs Enforcement in accordance
with the following considerations:
(1) the State's willingness and ability to correct the
problem;
(2) the availability of EPA resources;
(3) the likely efficacy of EPA action? and
(4) the significance of agency inaction.
Where Federal enforcement action is contemplated/ the decision
to pursue such action will be made also in conjunction with the
Office of Enforcement and Compliance Monitoring - Waste.
Extent of State Involvement in EPA-lead Enforcement
Actions^.State interest in the conduct and outcome of EPA enforce-
ment actions must be recognized, and State experience and expertise
accommodated in EPA's site activities to the extent possible.
While mechanisms are created in various sections of this policy for
coordinating the planning and execution of enforcement actions, and
for keeping States informed of the status of EPA actions, specific
provision also needs to be made to consider State interests, exper-
ience, and expertise in the course of EPA enforcement activities.
Accordingly, Regions should consult and, wherever practicable,
seek agreement with the States in the design and conclusions of
RI/FSs, in the identification of the recommended remedy to be
pursued with responsible parties, and in the determination of the
final remedy. There may be occasions where time or litigative
constraints preclude efforts to consult or seek agreement with a
State. In such cases, the Region should proceed with its actions,
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-11-
but also should inform the State of the circumstances as soon as
possible. Situations also nay arise where a State is unable to
agree with a particular action. In these instances, to the extent
that time and other considerations permit, the Region should seek
to resolve the issues which prevent State agreement. However,
absence of State agreement initially, or inability subsequently
to resolve any outstanding issues, is not a bar to necessary and
timely action by the Region or to determination by EPA of appro-
priate action to be taken. EPA recoanizes that a State may seek
additional remedy through its own'authorities if the State dis-
agrees with an EPA action.
EPA/State Enforcement Site Agreements. Once lead responsi-
bility for an enforcement site has been finally determined, a
site management plan has been prepared, and the extent of antici-
pated EPA and State involvement in the site determined, the Reaion
and State should develop an EPA/State Enforcement Site Agreement.
The Agreement will delineate the roles and responsibilities of
EPA and the State, lead officials or contacts, mechanisms for
coordination and communication, and any other arrangements or
understandings, including the applicability of State standards.4/
The purpose of the Agreement is to ensure that the extent of
the EPA/State relationship at each site is fully thought out and
documented to prevent later misapprehensions or misunderstandings.
(Detailed guidance for preparing the Agreements will be developed
in consultation with ASTSKMC anrt NAAG and issued separately. In
developing the guidance, consideration will be given-to makino pro-
vision for multiple sites to be incorporated in a single Agreement.)
Sharing Enforcement Information. As stated previously in
this .policy, the absence of a system for sharing enforcement status
information often has left EPA and the States with little knowledge
of the actions of the other.
Development of site management plans can be an effective
starting point. Since a site-management plan is to be prepared
through consultation between the Region and the State, and since
it must be updated periodically, a mechanism has been created for
beginning and continuing site-specific discussion and information
sharing. This applies equally to EPA-lead and State-lead enforce-
ment sitts.
4/ EPA will endeavor to incorporate State standards in the selected
Temedy where the State standards are consistent with • cost-effective
remedy as defined in the NCP. Accordingly, Regions and States should
explore the applicability of State standards and incorporate the out-
come in the Site Agreement. Where the Reaion and State are unable
to agree, the State may choose to pursue independent action under
its own authorities.
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-12-
In addition to EPA contacts with States to keep site manage-
ment plans current, the Region and State officials, including
representatives of the State's attorney general, should meet
periodically to review the status of EPA and State actions. The
review should concentrate on NPL sites, including the status of
enforcement and responsible party RI/FS activities, but potential
NPL sites may be addressed as well. Frequency of these meetings
is a matter for Regional and State discretion, but should be no
less often than twice a year. Further, the Regions should contact
appropriate State agencies regularly to advise them of impending
actions and keep them abreast of developments, and States similarly
should inform the Region of impending actions and developments in
State enforcement activities. Arrangements regarding these contacts
and meetinqs should be incorporated in EPA/State Enforcement Site
Agreements.
Finally, agency guidance in two areas creates additional
mechanisms to keep States informed of EPA's enforcement activities
and to allow State comment. The pending community relations gui-
dance provides for a public comment period both on administrative
orders on consent and on remedial investigations and feasibility
studies, including those prepared by EPA or responsible parties
for Federal enforcement-lead sites. (Both provisions are amono
chanpes to be proposed in the National Contingency Plan.) Further,
guidance implementing agency rules regarding intergovernmental
review of certain agency actions provides up to €0 days for States
to comment on the agency's intent to initiate RI/FS activities.
While responsible party RI/FS activities are not included in the
intergovernmental review process because they do not constitute
Federal actions, they nonetheless will be subject to State review-
in accordance with the impending community relations guidance.
In implementing the community relations review procedures,
the Region should assure effective opportunity for State comment
on consent orders and decrees (the latter subject to public comment
by Department of Justice regulations), and agency and responsible
party RI/FSs, by providing copies of the documents directly to
interested State administrative agencies and to the State attorney
general's office. These activities, however/ should not be re-
garded as a substitute for. the extensive consultation and coordi-
nation with States 'described earlier in this policy. State
interests are to be considered, and accommodated to the extent
practicable, prior to public comment periods for agency actions.
Development of Policies and Guidance. The agency is pro-
ceeding to develop enforcement policies and guidance on a broad
range of NPL site issues, and will continue to do so for some
tine into the future. The value of increased State involvement
is clear, as is the need for timely distribution of policy and
guidance documents to the States.
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OSWER I 9831.3
-13-
Wherever practicable, EPA will provide opportunity to comment
on draft NPL site enforcement policies-and guidance documents that
are of interest to States. The opportunity will be made available
either to all States through'the Regions when time permits or, when
time constraints are particularly acute, to representative States
through the Association of State and Territorial Solid Waste
Management Officials and the National Association of Attorneys
Cencral. Further/ for those issues which will require substantial
effort to study and resolve, E?A will seek to increase State parti-
cipation through early consultation and, where appropriate, by
including State representatives on any study or work groups that
may be formed.
Once policy and guidance documents have been made final, the
Regions should, upon receipt, provide copies to State administra-
tive agencies and attorney general offices, and make arrangements
for briefing State officials where appropriate.
EPA has an interest also in State hazardous waste enforcement
policies and guidance, and encourages States to consult with the
Regional Offices in their development and to provide to- the Regions
copies of final documents.
FUTURE EFFORTS
EPA intends to continue to work directly with States, and
throu-gh the Association of State and Territorial Solid Waste
Management Officials and the National Association of Attorneys
General, to allow frequent and regular meetings of State represen-
tatives and agency officials. Through these arrangements, EPA
and the States will be able to continue the dialogue, begun in
the-course of developinc this policy document, to find solutions
to issues that arise in'the course of CERCLA and related State
enforcement programs.
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SOM
F»d«f»l Refiner / Vol. SO. No. 24 /•Tuesday. February 5. 19SS / Notice*
OSWER * 9835.0
ENVIRONMENTAL WIOTtCTTON
AOINCY
Haarooue Waatt Errtoroanwrrt Pettey
R Environment*] Protection
.Agency.
Acno*c Request for public comment
r The Aft ncy is publishing
today it* intthm CERCLA settlement
policy in order to solicit public comment
OB it. Tb« policy govern* pnvttt parry
cltiaup tnd contribution proposals
under tht Comprehensive
Environmental Respoue. Compensation
ud Liability Act of 1MO ("CERCLA" or
"Superfund"). Th* AICBCT i» *l*o
publishing it in ittachment • mort
detailed discussion ol issues raised by
this policy.
OATC Cominenti must be provided on or
before April 8.19U.
MM FUTTMIH mFOMSATMN CONTACT:
Debbie Wood. U.S. Environmtntal
Prottcnon Agency. Office of W»ne
Programs Enforcement. WH-527,401 M
SL SW_ Washington O.C 20460. (202!
382-4629.
SUPPLUMMTAItV INroWMTWC This
intena policy ducnbei the approach
tht Environmental Protection Agency it
now taking in evaluating private party
settlement proposals for cleanup of
hazardous waste sites or contribution to
funding of response action under the
Comprehensive Environmental
Response. Compensation, and Liability
Act (" CERCLA" or "Saperfund")- It
reflects our recent reevaluanon of
Agency settlement policies. The policy
is also generally applicable to imminent
hazard enforcement actions under
section 7003 of RCRA.
The Agency's hazardous waste
settlement policies have resulted in
numerous comprehensive private party
cleanup*, and in stronger settlements
with private parties. Some potentially
responsible parties (PRPs). however.
have arfu*d that Agency settlement
policies have foetered litigation, and
discouraged voluntary private parry
cleanup action*. They have sugjested a
number of changes, aucfa as expanded
releases from liability for PRPs and
routine provision to PRPs of protection
against possible contribution actions by
non-settling parties. These suggestions
have been made with tht expectation
that such changes would substantially
encourage voluntary response.
Tht Agency's interim policy on
CERCLA case settlement has therefore
been amended to:
—Include additional incentives for
private parry cleanup:
—Articulate policy.decisions previously
made on a case by case basis in
evaluating particular settlement
offerr
—Address additional policy concerns.
including releases from liability tnd
contribution protection: and.
—Include a itatatnent of the general
principles governing EPA « CERCLA
enforcement program.
This policy Mt> forth the general
principle* governing private parry
settlement under CERCLA, and specific
procedure* for Region* and
Headquarters to us* in aasetsing private
party settlement proposal*. It address**
negotiations concerning conduct of or
contribution to the remedy determined
by the Agency as a mult of the
remedial investigations and feasibility
studies. Tht following topics art
covered:
1. General principles for ETA review
of private-party cleanup proposals:
2. Management guidelines for
negotiation:
3. Factors governing relttse of
information to potentially responsible
p antes:
4. Criteria for assessing settlement
offers:
5. Partial cleanup proposals:
6. Contribution among responsible
parties:
7. Release* and covenant* not to sue:
(.Targets for litigation:
9. Timing for negotiations:
10. Management and review of
settlement negotiation*.
The policy doe* not explicitly address
PR? participation in the Agency's
selection of remedies for private party
cleanup*. That topic was addressed in a
memorandum from Lee Thomas and
Courtney Price, entitled "Participation of
Potentially Responsible Parties in
Development of Remedial Investigations
and Feasibility Studies under CERCLA"
(March 20. IBM).
The polio** and procedures tat forth
In the interim policy are guidance to
Agency aad other government
employee*. Th* policy tats forth
enforcement priorities and procedures.
and internal procedure* which art not
appropriate or necessary subject* for
rulemaking. Thus, the policy doe* not
constitute rulemaking by the Agency.
and may not be relied on to create a
substantive or procedural right or
benefit enforceable by any other person.
Th* government may. therefore, take
action that is at variance with policies
and procedure* contained in thi*
document.
Tht Agency i* publuhing and
soliciting comment on this interim policy
for • number of reasons. Tht Agency
racotnizn that the public it very
concerned with hazardous waste
enforcement. We believe that thi* policy
will substantially benefit the public by
encouraging responsible parties to
undertake appropriate and long term
remedies through settlement*. We alto
believe that the policy will yield better
result* if the public and potentially
responsible parties understand the
policy and our reaaotu for adopting It
This policy was originally drafted in
December. iBtt. ha* been to* lubjeci of
extensive review and evaluation byiee
Agency and the Department of Justice. It
Is therefore being published a* interim
policy. We will reevaluat* thi* policy in
light of our working experience with
Implementing it and the public
comments that we receive.
The Agency statement of policy
follows, A more detailed discussion of
issues for public comment is included in
the Appendix.
Dated: January a. U*5.
fKfcW.McGnw.
Acting AttiitantAdminittraur. Offiet of
Solii Wettt end Eowjency Kttponu.
Dated: lanuary 2*. 1I8S.
CMiraey M. Prise.
Auitunt Adaiiniitmtor. Offiet o>
Enfommtn: and Camplionet Maaitonny.
Memorandum
December 1 lt*4.
Subject Interim CERCLA Settlement
Policy
From: Lee M. Thorn**. Assistant
Administrator Office of Solid Waste
and Emergency Response. Courtney
M. Pnct. Assistant Administrator
Office of Enforcement and
Compliance Monitonng F. Henry
Habicht.-C. Assistant Attorney
General Land and Natural Resource*
Division. Department of justice
To: Regional Administrator*. Regions I-
X
Thi* memorandum set* forth the
general principles governing private
party settlemenu under CERCLA. and
specific procedures for the Regions and
Headquarters to use in assessing private
party settlement proposals. It address**
the following topics:
L general principles /or EPA review of
private-parry cleanup proposals:
1 management guidelines for
negotiation:
J, factors governing release of
information to potentially responsible
parties;
4. criteria for evaluating settlement
offers:
5. partial cleanup proposals:
6. contribution among responsible
parties:
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FedaraJ Refiifrr / Vol. 30. No. 2t f TiiMday. February 5. 1985 / Notlcm
sosi
% release ud eonveaant* not to sue:
8. target! for litigation:
la management end rtvitw of
settlement negotiations.
AVpttcabUlty
This memorandum incorporates tbt
draft. Hazardous Waste Case
Settlement Policy- publi* had ia draft ia
December of 1963- It is applicable not
only to multiple perry case* but to all
dvtt hazardous waste enforcement
CUM under Superiuad. It is unmlly
applicable to iauninent hazard
ea/orcemeat actions undar section 7003
ofRCRA.
This policy «*ubushai crlttrte, tot
evaluating private party settlement
proposal* to conduct or contribute to the
funding of response action* including
removal and remedial action*. U tA*o
«ddr«t«i* settlement propoitlt to
contribute to funding after a rtiponi*
action bai bttn completed- It does not
adores* private-party pio^o*tA» \o
conduce remedial investigation* and
feasibility trudiej. These prapoMi« ire
to b« evaluated under crttena
e$ubUth«d in the policy guidance horn
lee M. Thomai, A**i*tant
Administrator, Office Of Solid We*t«
and Emergency Response. And Courtr.ey
Pnee, A**MiUr.\ MinunsttMtor. Office o!
Enforcement and Compliance
Monitoring entitled "Participation of
Potentially Respopsibls Parties in
Development of Remedial Invesrigationa
and Feaiibility Studiaa und»r CERClA".
(March JO, 1964)
U Geawtl Maeipit*
The Government'* goal in
implementing CEflCLA ii to achieve
effective and expedited cleanup at U
many uncontrolled hazardous waate
facilities .as possible. To achieve thU
goal tbt Agency I* committed to a
strong, and i
can iiae the Fund to assure that site
cleanup will proceed expedittously, and
than Ufa to recover these costs from
non-settling responsible parties. Where
the Federal government accepts less
than 100* of cleanup costs aad ao
financially viable responsible parties
remain. Superfufld monies may be used
to make up the difference.
• The Agency recognise! the value of
some measure of finality in
determinations of liability and ia
settlements generally. PRJpi frequently
want some certainty in return for
assuming the costs of cleanup, and we
recognize that thii will be » valuable
incentive for private parr/ cleanup. PRPi
frequently seek i final determination of
liability through contribution protection.
release! or covenants not to sue. The
Agency will com>d*r rtleasei from
liability in appropriate j.iuancnj. and
-------
Faeiatal Router / Vol 50. No. 24 / Tuttday. February S. 1965 f Notjgu
will also coruud« contribution
protection in united oreuawtaaea*. Tbi
Agency will «l*o take egfjreeaivt
enforcement action egainit tbooe part**
whoee recalcitrance prevent*
settlements, la bnafiBi coat rtcovtry
action*, the Agency wUl al*o attempt to
rajaa any remaining claims under
CCKCLA section 108. to to* ixunt
practicable.
The remainder of thi* memorandum
Mti forth specific polidn for
implementing thtM general principle*.
Section n HU font (hi management
guideline* for negotiating with IMI then
all reaponeible partiea for partial
Mttiemeata. Thia taetioB reflect* tha
Agency* wtlllngnee* to ba flcxiblt by
coaaidanni ofTan for cleanup of la*i
than 100% of claanup activities or co*t».
Section in lata forth guideline* on thi
relea** of informetion. The Agency
recognize* that »d equate information
facilities mort successful negotiations.
Thus, tha Agency will combine a
vigorous program for obtaining the data
aad information nceatiary to facilitatt
Mttlamanu with a program for releasing
information to facilitatt communications
among responsible paraai.
Section* IV and V to ditcui* the
a 'eria for evaluating partial
•eiUemenu. A* notad above, in certain
drcumatiDcas the Agency will entertain
settlement offer* from PRPs which
axtaad only to pan of the tite or part of
tha coat* of claanup at a tite. Section IV
of this memo tau forth criteria to ba
uaad is evaluating tuch offers. These
criteria apply to all cases. Section V sen
forth tha Agency's policy concerning
of. en to perform or pay for discrete
phases of an approved cleanup.
Sections VI and VH relate to
contribution protection and releases
from liability. Where appropriate, the
Agency may consider contribution
protection aod limited releases from
liability to help provide some finality to
settlements.
Section vm seta forth criteria for
aelecnaaj enforcement case* aad
identifying targets for litigation. As
discussed above, effective enforeemnt
depends on careful caae selection and
the careful selection of targets for
litigation. The Agency will apply criteria
for selection of case* to foci* sufficient
resources on cases that provide the
broadest possible enforeemnt impact, (n
addition, targets for litigation will be
Identified in light of the willingness of
partie* to perform voluntary cleanup, aa
wall ae conventional litigation
management concerns.
Section IX sets forth the requirements
governing the timing of negotiations and
section X the provision for Headquarters
review. These section* address the need
to provide the Regiooa with increased
flaxibilty in negotiations aad to change
Headquarter* review in order to
expedite site cleanup.
a Management GuiocUae* he
Negotiated
Aa a guideline, the Agency will
negotiate only if the initial offer from
PRP* constitutes a "iN'tntttJ
proportion of the ooets of daaaup at the
site, or a substantial portion of the
needed remedial action, entering into
diacuaaion for lets than a fptmejin*!
proportion of cleanup coats or remedial
action needed at tha site, would not be
aa effective use of government
resource*. No specific numerical
threshold for initiating negotiation* ha*
been established
In deciding whether to start
negotiations, the Region* should weight
the potential resource demands for
conducting negotiation* against the
likelihood of getting 100% of cost* or a
complete remedy.
Where the Region propose* to
negotiate for a paraai settlement
involving less than the total costs of a
cleanup, or s complete remedy, the
Region should prepare a* pan of it*
Cat* Negotiation* Strategy a dreaft
evaluation of the case uamg the
settlement cntena identified in section
IV. The draft should discus* how each of
the factors in section IV applies to the
sit* in question, and explain why
negotiation* for lea* than all of the
cleanup coit*. or a partial remedy, are
appropriate. A copy of the draft should
be forwarded to Headquarters. The
Headquarters review will be u*ed to
identify major issue* of national
significance or issues that may involve
significant togil precedent*.
In cenain other categories of cases, it
may be appropriate for the Regions to
enter into negotiation* with PRPs. even
though the offen from PRPs do not
represent a aubstaatUl portion of the
COM of cleanup. These categories of
• administrative settlement* of coat
recovery action* where total cleanup
costs were lest than S200.00Q-.
• claim* in bankruptcy:
• administrative settlement* with de
minima contributor* of wastes.
Action* tubject to thi* exception* are
adnuniantiv* settlement* of cost
recovery caae* where ail the work at the
sit* ha* been completed aad all coat*
have been Incurred. The figure of
S20OOOO refer* to all of the coat* of
cleanup. The Agency ia preparing more
detailed guidance on the appropriate
fora of such settlement agreement*, and
the type* of conditions that must be
included.
Negotiation of claim* in bankruptcy
may involve both present owner*, where
the United State* may have an
edoinutratm costa claim, aad other
parties inch a* past owner* or
generators, where the United State* may
be aa unsecured potential creditor. The
Ration* should avoid becoming
hwohred in bankruptcy proceeding* If
then ia little likelihood of recovery, and
should recognise the riak* involved ia
negotiating without creditor ttatua. It
may be appropriate to raqunt DO] filing
of a proof of *!•"• Further guidance 1*
provided in the Memorandum from
Courtney Price entitled "Information
Regarding CStQA Enforcement
Agaiaat Bankrupt Paree*." dated Mey
24,1914.
In negotiating with de aunimtt pmrtie*.
tha Region* should limit their efforts to
low volume, low toxiaty disposers who
would not normally make a significant _
contribution to the costs of .cleanup in ~
any case.
In considering settlement offer from
de minimi* contributors, the Region
should normally focus on achieving cash
settlement*. Regions should generally
not enter into negotiations for full
•dminiatranv* or judioal settlements
with release*, contribution protection, or
other protective clause*. Substantial
resource* ahould not be invested in
negotiations with dt minima
contributors, in light of tha limited cost*
that may be recovered, the tune needed
to prepare the necetsary legal
document*, the need for Headquarter*
review, potential rtt /udieata effects.
and other effect* that dt muumtt
aettlemenu may have on the nature of
the case remaining to the Government.
Partial settlements may also be
coniidered in •ituarion* where the
unwiUingne** of a relatively small group
of parties to tattle prevent* the
development of a proposal for a
ff*tmtPMal portion of costa or the
remedy. Proposal* for settlement In
these orcomitaaca* ahould be a*se*sed
under the criteria eat forth ia section tV.
Earlier version* of th:* policy included
a threthoid for negonauon*. which
provided that negotiation* ihould not be
commenced unles* an offer we* mad* to
settle for at least 80ft of the costs of
cleanup, or of the remedial action. Thai
threshold ha* been eliminated from the
fiaal version of thi* policy. It mutt be
emphaaued that elimination of this
threshold doe* not mean thai tin
Agency is therefore more willing to
accept offer* for partial settlement The
objective of the Agency i* still to obuin
complete cleanup by PRP*. or 100% of
Ae cost* of cleanup.
-------
Federal RafiaHf / Vol SO. No 2* / Tut»iday. P'Knury S. 1985 / Notices
5037
Ok ..«l*ase *tf laformatioe,
Tbf Piracy Mill "eWese taforantioa
com.«sj\« 'Jie in« tn PRP* to facilitate
discusktons 'of »ettJ«ri>«nt among PRPs.
Thu information wtil includr.
—identity of notice letter recipients:
—Velum* and nature of wuttt to the
«xttnt identified u Mm to the site:
—Ranking by volume of material sent to
the site, if available.
In dateraining tbt typ« of Information
to be releesed. the Region should
consider the poiaiblt impacts oa any
potential litigation. The Rtfioai should
take tttps to aatun protection of
confidential and deliverative materiel*.
Tb« Agency wtll generally not release
ectual evidentiary material The Region
should itati on tech rtlMMd summary
that it U preliminary, that it was
furnished in tht count of eompromiM
negotiations (Fid. Rulti of Evidtnct
408). and. that it it not binding on tht
Federal Covtmatnt
This information release should bt
pncadtd by and eombintd with a
vigorous profniffl for colltctini
information from responsible partita. It
remains standard practice for tht
Ajtncy to ust tht uuarmation lathtrinf
•uihonnss of RCRA and CERQLA with
respect to all PRPs at a site. This
in'- -nanon rtlttst should generally bt
c ontd ot> a rtaprocal rtlaasa of
in. Cation by PRPs. Tht information
request nttd not bt siaultanwus. but
EPA should rtcaiv* tht information
within a rtasontblt time.
FV Settlement CritatU
The obi«ctivt of negotiation* ia to
colltct 100% of dtanup costs or
compltlt dtanup from rtsponsibli
parties. The Agency recognizes that in
narrowly limited circumstances,
exceptions to this f oal may ba
appropriate, and has estabUthedcritaria
for determining whara such exceptions
an allowed. Although tht Agency will
coatidar offers of laaa than 100* to
accordanca with this policy, it wtll do so
in light of tht Afancy's position.
reinforced by meant coon decisions.
that PR? liability U itriet (oint and
savaral ualasa it can ba shown by tfaa
PRPs that injury at a sit* U claariy
divisibla.
Basad on a full avalutioa of tht facts
and~t conprahtnaivl aaalytis of all of
tht Ustad of taria, tha Afaacy may
considar accaprtaf offtrs of fats than
100 parcant Rapid and afftctiv*
Mttlamant depends oa a thorough
•valuation, and an affmsiva
informatton coUaction profram is
nacassary to prapara affaenva
•valuation*. Propoaals for less than total
Mttlamant should S* a»»«iw
-------
Ftdml RtfUrar / VoL SX No. 24 / Tuwdiy, Ftbnanr 8. 1985 / Notict*
to reimburse tht Fond la nasoeabls
installment* 9»« a period of time, if th*
parry ii unable to pay in a lump turn.
aad in»ullmtnt payment* would benefit
the Government. A (fractured
Mttlement providing for payments ovtr
doe should be at a payment level that
take* into account th* party'* cash flow.
AD exetMive amount could fore* a
party into bankruptcy, which will of
count make collection very difficult.
St* tb* memorandum dattd August28-
1MX entitled "Cost Recovery Actions
under StctioB 107 of CERQA" for
addition*! guidance OB this subject.
S. Uttfativt Ritki in Prsx»tding to Trial
Utigetive nskt which might ba
aaeouatand at tnal tad which ahould
wai|fa in contidtranon of any settlement
offer includa traditional factors tuch ai:
a. Admtuibiiity of At Gevimaent't
tvidtnct
If necessary Government avidtnc* ii
unlikely to b« adnuttad in a trial
bteausa of procedural or »ub»t*ntiv*
problem* in tht acquisition or station
of. tht evidence, this infirmity should bt
considered ai reducing tht
Covtnuntnt'i chanca of succtas and,
therefore, reducing the amount tht
Government ihouid txpect to receive in
a settlement.
b. Adtquacy of tht Covt.Tmtnt'i
tridtnct
Canain aspects of this point havt
alnady batn discuiMd abovt.
Howtvtr. it dastrvis mention «gain
because '.he Government'* cast deptnda
on wb*tantial quanttats of sampling.
analytical and othtr technical data and
expen testimony. If tht evidence in
support of tht Government's cast is
incomplete or based upon controversial
science, or if the Government'} evidence
is otherwise unlikely to withstand the
scrutiny of • thai the amount that the
Government might expect to receive in a
settlement will be reduced.
c. Availability of dtftntti
In the unlikely event that oat or more
of the settling parties appears to havt a
defense to the Government's action
under section lOTfb) of CERCLA. the
Government should expect to receive
less in a settlement tram that PRP.
Availability of one or more defense* to
one PRP which are not common to all
PttPi in the east should not however.
lower the expectation of what an entire
offering group should pay.
ft Public //ittrttt Coiuidentiont
The purpose of site cleanup is to
protect public health and the
environment. Therefore, in enslytins a
settlement proposal the timing of the
cleanup and the ability of the
Government to clean up the site shuuld
be considered. For example, if the State
cannot rand its portion of a Fund-
financed cleanup, t private-party
cleanup proposal may be given more
favorsbU consideration thaa one
received In t case when the Slate can
fund Its portion of cleanup costs. If
necessary.
Public interest considerations also
Include the availability of Federal funds
for necessary cleanup, and whether
privately financed action can begin
more quickly than Federally-financed
activity. Public interest concerns may be
need to Justify a settlement of less than
100% only when there is a demonstrated
need for a quick remedy to protect
public health or the environment.
7. frtetdtatiaJ Vaiut
In somsrease*. the factual situation
may be conducive to estsblishing a
favorable precedent for future
Government action*. For example.
strong case law can be.developed in
cases of first impression, in addition.
settlements in such cases tend to
become precedents in themselves, and
an examined extensively by PRPs in
other cases. Settlement of such cases
should sjwayi be en terms most
favorable to the Government. Where
PRPs will not settle on such terms, and
the quality and quantity of evidence it
strong, it may be ta the overall interest
of the Government to try the case.
8. Valut of Obtaining a PnnntSiai
Ctnoin
It money can be obtained now and
turned over to the Fund, where it can
earn interest until the tune it ia spent to
clean up a site, the net present value of
obtaining the sum offered ia settlement
now can be computed against the
possibility of obtaining a larger SUB in
the future. This calculation may show
that the net present value of the earn
offend is settlement is. ia reality, higher
thaa tht amount the Government can
expect to obtain at trial EPA has
developed an economic modd to assess
theM and othtr related economic
factors. More information on thii model
can be obtained from tht Director.
Office of Waste Program! EnvorcemeaL
A Ififfwtitf andAanratiat Factor*
All analyses of settlement proposal*
should flag for the decision maken any
apparent inequities to the settling
parties inherent in the Govtramtnfs
case, and apparent inequlUt* to other* if
the settlement pwpoaal i* accepted, and
any aggravating factor*. However, it
must be under*tood that the statute
operates on the underlying principle of
strict Uebility in*' th«t equitable
matters are not d
JO ffoturt of (At Cow that JUnoint
A/tar Seu/tflMfit
All settlement rvalue ttoo* should
address the natun of th* case that
remain* if tht settlement is accepted.
For example. If then an no financially
viable parties left ta proceed against for
the >>«IM««« of tat flt"T after tat
settlement, the settlement otter should
constitute evtrytblng the Government
expect* to obtain at that sit*. The
question* art: What dot* tat
Government gain by settling tail portion
of the castT Dot* tht etttittBtat or ta
tarm* harm the remaining portion of tht
oastf Will the Government have to
expend the same amount o! resource* to
try the remaining portion of the case? If
so. why should the settlement offer be
accepted?
This analysis it extremely Important
and should com* at the conclusion of
th* evaluation.
V. Partial Qtaaut*
On occasion. PRPi may offer to
perform or pay for one phaie of a tit*
cleanup (such «* a turfac* removal
action) but not commit to any othtr
phase of the cleanup (lucb a* ground
wattr treatment). In tome
circumtiaitces, it may be appropriate to
inter into settlement* for tuch partial
cleanups, rether than to resolve all
Unit* in one Mttlement. For example, in
some casts it is necessary to conduct
initial phases of lite cleanup in order to
gather lufBcitnt data to evaluate the
need for and type of work to be done on
subsequent phase*. In inch eaies. orTen
from PRP* to conduct or pay for less
than all phases of site cleanup should be
evaluated in the utne manner aad by
the tea* criteria a* set forth sbove.
Settlements performed it the tite. This
provision dot* not cover preparation of
an RI/FS, which is covered by a
teptratt guidance document Lte
Thomu aad Courtney Price's
"Participation of Potentially Responsible
Parties in RI/PS Development" (March
VI. CMtribwHoa Proteetlou
Contribution among mponiiblt
parties is based on tht principle that a
Jointly and severally liable party who
ha* paid all or a portion of a jvdgmnt
or settlement may be entitled to
reimbursement from other jointly or
severally liable parties. When th*
Agency reaches a partis! sctUtratnt
with some paroe*. it will frequently
pursue an enforcement action agsinsl
non-settling nsponsibl* parties to
recover the remaining eo*t« of cleanup.
If such an acCfln i* undtrtskin. there is
a possibility that tnost r.on-»««lor*
-------
RefiXs* / VoL SO. No. Z4 / Tueidiy. Fabmary 5. 1965 / Notice*
would la rum sue settling parties. If this
action by nonaettUag parties is
successful, ihta the Mttiiai parties
would end up paying a larger than of
cleanup costs tbaa was dstanined in
the Agency s settlement Thie ia
obviously a disincentive to settlement
Contribution protection in a COOMDI
decree can pravant this outcome, la a
contribution protacttoa clauaa. (he
UniUd Slate* would a|nt to redoce its
lodgment against tat non settling
puttee, to the extent accessary to
extinguish tat atttllaf party's Ubility to
the MDMttUni third party.
The Agency recognizes toe value of
contribution protacttoa ia limited
situations ia order to provide some
measun of finality to settlsaenla..
Fundamentally. w« believe that icttlini
parties an protected from contribution
action* aa a matter of law. bated on the
Uniform Contribution Among
ToEtfeasors Act That Act provide* that
when settlements are entered into ia
"food faith", the settlors are dlacharted
tram "all liability for contribution to any
other joiat tortfeasors." To the extent
that 'his law ii adopted aa (he Federal
rule of dociaion. there will be no need
for apeeific clauaea in content
agreements to provide contribution
*otoctfon»
rhere haa not yet been any ruling on
^a iaane. Tout, the Agency may still be
uked to provide contribution protection
in the form of offsets and nductiona in
judgment Ia detenainiaf whether
sxpiicit contribution protection dauiet
are appropriate, the Region should
coninder the following factors:
• Explicit contribution protection
dauMt are leneraUy not appropriate
unleat liability can be cliarly altocatsd.
to that the ritk of nepportionment by a
judfe in any future action would be
• Inclution ebould depend oa case-
by••'
an solsly technology-based.
Expansive releases may b* xor.-
appropriate when the private party
remedy is a demonstnted effective
alternative to land disposal sach aa
incinenbon. Such releases are possible
whether the hazardous material ia
transported offsite for tnanneat or the
tnatment takes place on site. In either
instancs. the use of tnatment can result
in gnater certainty tha! futun- prrm»
will not occur.
Other remedies may be less
appropriate for expansive «!*•»**
particularly if the consent order or
agreement does not include perfarauac*
standards. It may be appropriate in such
circumstances to negotiate nlejtcs t.'ut
become effective seven! yean ifu?
completion of the nmcdial action, to
that the effectiveness end reliability of
the technology can be ciasriy
demonstrated. The Aee.icy anttnpatn
that responsible pastes may b- ahV to
tchievt a gnster decree n( rrnj-.a m
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S040
Raejata* / Vol 50. Nc. U 1 Tuttdiy. February 5. ifles / Notice
wttteotou when the state of scientific
understanding concerning thiM
technical U*UM hu advanced.
Rafardlea* of the relative
expaaiiveneM or stringency of tht
releea* IB other respect*, it i mpiifmim
tinltmtot document* mutt include
ceopeaen allowing tht Covinxacnt to
modify terms and conditions of thi
agreement for tht following type* of
circumstance*:
• Where previously unknown or
undetected condition* that ariat or are
diMOvarod at tbt tit* aftar the time of
the agreement miy present an imminent
and nbitantial endangerment to public
health, welfare of tht environment
• Whart tbt Agency receives
additional information, which wai not
avaiiabia at tht cunt of tht agreement.
concerning tht scientific dttemunationi
on which tht settlement wn premised
(for cxanplt. health tflact* associated
with level* of expoiurt. toxitity of
hazardous subitanct*, end the
appropriateness of tht remedial
technologies for conditions at the lite)
and tius additional information
indicant thtt »ite condition* may
prat ant an imnuntnt and substantial
endangermont to tht public hailth or
walfan or lha environment
la addition, ralaaaa clauses must not
preclude the Government from
recovtriai cost* incurred in responding
to the type of imminent and substantial
endangeonemi identified above.
la extraordinary cimimitancca. it
may be clear after application of the
settlement enttna sat out in section IV
that tt is in the public interest to agree to
a man limited or more expansive
release not subject to the conditions
outlined above. Concurrence of the
Assistant Administrators for OSWER
and OEO4 (and the Assistant Attorney
General when the itleaae is given on
behalf of tat United State*) must be
obtained before the Government's
Defoliating tug, J, iBihorUed to
negotiate retarding each a release or
cevenant
The extent of releases should be the
same, whether the private parties
conduct the cleanup themselves or pay
for Federal Government cleanup. When
responsible parties pay for Federal
Government cleanup, the release will
ordinarily not become effective until
cleanup it completed cad the actual
costs of the cleanup are ascertained.
Responsible parties will thereby bear
the risk of uncertainties arising during
execution of the cleanup. In limited
circumstances, the release may become
effective upon payment for Federal
Government cleanup, if the payment
includes a carefully calculated premium
or other financial instrument that
adequately insures the Federal
Government against thtsi aa-TertaintSes.
Finally, the Agency sia, oe mere willing
to settle for leas than the total costs of
cleanup when it is not precluded by a
relaaae clause from eventually
recovering any additional costs that
ought ultimately be i&cantd at a aite.
Ralaaaa clauses an also subject to the
following Umitadona:
• A ralta
taae or covenant may be given
only to thi PRP providing the
consideration for the raloaae.
• The release or covenant must not
cover any claim* other than thoae
involved in the case.
• The release must not address any
criminal mattet.
• Reletses for partial cleanups that
do not extend to the entire site must be
limited to the work actually completed,
• Federal claima for natural resource
damages should not be released without
the approval of Federal trustees.
• Responsible partial must release
any related claims against the United
Slates, including the Hazardous
Substance* Responat Fund.
• Where the cleanup i* to be
performed by the PRP*. tht release or
covenant should normally become
effective only upon the completion of
the cleanup (or phase of cleanup) in a
manner satisfactory to EPA.
• Release clauses should be drafted
a* covenant* not to sue. rather than
rtltaiH from liability, where thi* form
may be neceitary to protect the legal
. right* of the Federal Government
A release or covenant not to tu*
terminate* or seriously Impairs the
Covemmest's rights of action against
PRP*. Therefore, the document should
be carefully worded so that the intent of
the partis* and extant of the matters
covered by the release or covenant are
dearly stated. Any vcpaed settlement
""*•*"''? a rale*** .- •-• a poettbie
ambiguity will be returned for further
negotiation*
vm. Targets for Utigaooo.
The Regions should identify particular
case* for referral in light of the following
factor*
—Substantial environment*! problems
exttt
—The Agency's case ha* legal merit
—Tat amount of money or dearop
involved la significant
—Good legal precedent it possible
(case* should be rejected where the
potential for advene precedent is
subitanttal^
—The evidence is strong, well
developed, or capable of
development
—Statute of limitations problem* exist;
—Responsible parties art financially
viable.
The goal of me Agency it to bring
enforcement action wherever needed to
asaure pnvatt party cleanup or to
recover cost*. The following type* of
case* are the highest priorities for
referrals;
—tor actions in which aH cost* have
beea incurred:
—Combined 108/107 action* IB which a
aignificant phaae ha* bean completed.
additional injwctive relief is needed
and identified, aad th* Fund will not
be used:
—108 action* which will not be the
aubject of Fu&d-finaaced cleanup.
Referrals for injunctw relief may aUo
be appropriate in caaes when it is
possible that Fund-financed cleanup will
be undertaken. Such referral* may be
needed where there are potential statute
of limitation concern*, or where the site
has been identified ai enforcement-lead,
and prospect* for succeuful litigation
are good.
Regional oBce* ihould periodically
reevaluate current target* for referral to
determine if they meet the guideline*
identified above.
At indicated before, under the theory
of joint and several liability the
Government i* act required to bring
enforcement action against all of the
potentially responsible parties involved
at a aita. The primary concern of the
Government in identifying target* for
litigation it to bnng a mtntonous case
against responsible parties who have
tht ability to undertake or pay for
reipons* action. The Government will
determine the targets of litigation in
order to reach the largest manageable
number of partee. baaed on tojoetty and
volume, and financial viability. Owners
and opera ton wtfl generally be the
target of litigation, oaleu bankrupt or
otherwise judgment proof, la
appropriate case*, the Government will
conaidtr pmeemring daim* in
bankruptcy. The Government may aUo
•elect targets for litigation for limited
porpoeea. such as ait* aceeaa.
Partie* who are targeted for litigation
are of course not precluded from
involving parties who have not beea
targeted in developing settlement offers
for consideration by the Government.
In determining the appropriate target*
for litigation, the Government will
coniider the willingness of parties to
settle, udemooMrated In tht
negotiation stage. In identifying a
manageable number of pame* for
litigation, the Agency will conaider the
recalcitrance or willingne** to **tt)e of
the parties who were involved in the
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Ftderal RetJrter / VoL SO. No. 24 / Tuesday. February 5. 1985 / Notice* 5041
negotiation*. The Agency will aleo
coiuidtr oihtr aggravating aad
mitigating factors concerning
responsible ptrty action in identifying
targets for litigation.
In addition, it may be appropriate.
when tha A|tncy » conducting phased
cleanup and hat reached a settlement
for oat phase, to Rnt aut only non-
MttUnf coapaaita for tbt next phase,
atauming that tuch financially viabte
partitt an available. Thia approach
would not pnduda suit agamat Mttilag
partita, bat oon-tettlon would bt sued
Initially.
Tbt Agency recognizes that P«daral
agencies may bt rtsponiiblt for cleanup
coata at htzardoua want sites.
Accordingly. Federal facilities will bt
itautd nonet Ittttn aad administrative
ordira whtrt appropriata.'inatead of
litigation, tha Agency will ust tha
procedures titabliihtd by Executive
Ordtn 12088 and 12140 and til
appHcabla Mamonnda of
Understanding to resolve issues
conctnuni luch agency's liability. Tht
Agency will takt all steps ntctuary to
tncoura|t luccaiaful negotiations.
". TUsing of Nt«odtttoot
(Jndar our rtvistd policy on
rtapoaaiblt party participation ia RI/FS,
PRPt htvt laerttitd opportunities for
inyolvemtnt in tht dtvtiopmtnt of tht
rtaudial investigations aad feasibility
atudita which tht Agency uan to
idtndfy tht appropnatt rtmtdy. In-light
of tht fact that PRPs will havt rtcetvtd
nonet Itttart aad tha information
identified ia itction ID of tail policy.
prtlltiiMon negotiations can bt
conducted ia an expeditious fashion.
Tbt Negotiation* Dtcuton Oocumaat
(NDO). which followa completion of the
RI/FS, maktt Iht preliminary
Identification of tht tppraprittt rtmtdy
for tht site, Pnlittgation negotiation*
bttwttn tht Govtramtnt and tht PRPt
thould normally not txtted for nort
than 00 day* tfttr approval of tht NDD.
If aifnificaai progreoa la not madt within
a reasonable amount of ttoa. tht
Ajtncy will not htfiutt to abandon
negotiations and procttd immtdUttly
with tdniaiatrative tenon or litigation.
It thould bt notad that thatt attpt do
not prtcludt hvthtr negotiation!.
Exttatiofu can bt conaidtrtd ia
compltx cuat whtrt thtrt it no thrttt
of atrioutly dtUytnf cltaaup action.
Aay trttnaion of thit ptrtod mutt bt
prtdlcattd on htvtaf a food faith offtr
from tht PRPi whlck If nccttafully
^•toUattd. will Mvt Iht Covtmntnt
bttannal ttmt and mourctt in
.(taiaiaf tht cleanup obrtenvn.
X. MtBtftBtst aad Rtvitw of
Stnltffitflt Ntfotttttooa.
All (tttlaoant document* mu*t
rtctivt coacumact from OWPE and
OECM-WMtt, aad bt approved by tht
Aaaiatiat Adminiitratcr of OECM ia
accordanct with daltfauoaa. Tht
OMaaftmtat yiidtlint diacaattd la
Stction n allow* the Region* to
""""•"g* ntfooatipna if ruponaiblt
putt* makt aa iaititi offtr for a
uibaftntlal praporttoa of tht cltaaup
coata. Btfort mmntnonf ntfotunont
for partial Mttltmtatt. tat Rtfiona
abould prtptn a preliminary draft
evaluation of tht caat uain$ tht
Mttitmtnt cntaria in aaction IV of thia
policy. A copy of thit evtluation thoud
bt forwarded to Htadquarttra.
A final detailed evaluadon of
atnltmanta ia rtquirtd when tht
Rtfiona rtqutat Headquarter* approval
of thtat ttttltmtatt. Thia written
evaluation should bt tubraittid to
OECM-Wtitt and OWPE by tht left!
and ttchntcal ptnonntl on tht caat.
The** will normally bt tht Rational
attorney and technical rtprtatntativt.
Tht tvaluatioa atmonuidum should
tadicata whether tht Mttltmeat ia for
100K of tht work or cltaaup coata. If thi*
lifun ia Itaa than 100%. tht
aitmoraaduffl thftutd iacludt a
ditcutaion of tht advantaijtt aad
dUadvaatagt* of tht prapoatd
Mttlemtnt aa mtiturtd by tht criteria ia
section IV. Tht Ajtncy expect* full
evaluation* of each of 'Jit criteria
specified in tht policy and will return
inadequate evaluation*.
Tht Rtfioa* art authorised to
coacludt-ttttlamtata ia certain type* of
hazardous waste cuts on their own.
without prior review by Htadouarttrt or
DO). Cut* atltcttd for thia treatment
would nomaDy havt lower priority for
ttttpttoa. Cattforitt of caatt MI
•object to Headquanera review Include
Dtfottatioa for coat recovery etaet
uadtr taouaoo tad ntfotiation of daima
Hied ia bankruptcy, la cott recovery
caata. tht Rtpoa* thould pay particular
attention 10 wtijhiaj the reaeurcee
ntcttatry to condnct ntfottttiona aeJ
libtauon aatiaat tha ^mouata that aey
be recovered, aad the proapecta (or
Authority to tpptar and try caatt
btfort the Bankruptcy Court would not
be delegated to the Rations, but would
be retaiatd by tht Department of
futtict. Tht Department will (Ut ctaat
whtrt aa acceptable nejotitted
settlement cannot bt retched. Copitt of
ttttltmtnt documents for such
agreements should be provided ot
OWPS and OECM.
Specific details eonceminf these
authorizations will bt addrttted in
deltftnon* thit will bt forwarded to tht
Region* under stptrttt cover.
Httdquartera is conducting aa
evaluation of tht efftcoventtt of
txiattag dtltganoaa. and i* as*et*ing
tht poaaibility of additional delegation*.
Not* ea Putpott aad Utea «f tail
Tht policiM aad procedure* tit forth
here, tad latent! Government
procedure* tdopted to implement thttt
polio**, art intended a* guidance to
Agency and other Government
employe**. They do not constitute
rulimaking by the Agency, and may not
bt relied on to create a lubstantivt or
procedural right or benefit enforceable
by any other person. The Government
may takt action that is at variance with
tht policies tnd procedure* in this
memorandum.
If you havt any que*rions or
comment* on this policy, or problems
that need to bt addrtsted in further
guidance to implement thia policy,
please contact Gent A. Lucero. Director
of the Office of Waste Programs
Enforcement (FTS 382-48141. or Richard
Maya. Senior Enforcement Counsel (FTS
382-4137).
Appendix—Oiscuaaioo of Itautt Rtiatd
by Interim CERCLA Settlement Policy
This appendix discmtt in greavr
dttail certain issues raised by the
interim policy and identifies specific
issues for public comment. It focuse* un
issue* of broad public concern, rather
than issues related primarily to internal
Agency management. The section
headings of thia attachment generally
parallel the specific secnona of th*
enforcement policy.
I CeaaralFriadptea
Tbt discussion of general principle*
*tts oat tht overall philotophy
governing tht Suptrfund enforcement
program. To achieve tht greatest
possible number of timely aad efftcttv*
cltaaup action*, tha Agency must strikt
« btlaaca betweea two opposite
approachea. One approach emphatic*
quick man to the Fund and
eaforetmeat authoritiea. and the other
features more incentives for priv*:«
party deeaup.
We have attempted to combine
feature* of both thttt approtcbM into t
vigorous enforcement program that will
encourage private party cleanups. Thw
approachea. and their limitation*. ar»
dttcribtd in gtetttr dttvl btlow.
Under one general approach, the
Aftney would quickly rttor to r.-h^r
-------
SBC
Federal
I Vol SO. No. 24 / Tut«diy. Febnury l 1963 / Notice*
eaforceaeat action each u Uttfitioa
•ad sdmuustrativt order*. or Federal
government, dtaaup under the Fund.
RtleaM* from lUbitity and explicit
contribution protection dauaei would
be f trietly limited under thit approach,
•ad tht time for negottatiaai pnor ta
eBforcament or ^T^^-^ntn^+rl deeniip
action would be toon. Tht limitation of
thi* general tppreach it thatEPAaay
Ml tlwtjn bt iblt to Bore to elMB up
•noogh site*, bectuM of rettrtctioni on
the UM of tht Food aad tat tat ud
TMOUKU needed to COBptl cUiflUp
niuugh enforcement Furtheiinun.
muy pnvmt* partite believt that, u •
general Bitter. thty can conduct
cleanup icfcvitit* BOM quickly and at
law cott than tht Ftdtrai govtrnaent.
and hev* elamtd that thu approach may
ditcoureft privatt party initittivit.
Uodtr tht othtr general approach, tht
Agency would providt additiooal
ineentivtt to tncounft PRP dtariup.
For txample. ttttltmtou would allow
Bon expansive reltates from liability,
contribution prottctioo would bt
provided. and EPA would takt ti much
bat at atedtd to rtsolvt issues through
negotiations btfort it rttoned to
eaforctmtat action or Fund-financed
cltanup. It ij poaaibla that tht Agency
would mcfa aort negotiated
settlements u&dtr thii ipproach. Ont
limitation of thu tpprotch it that tht
Aftncy would aatumt financial ritkt if
it bteoBtt clear ia light of changed
circumstance* or unprovtd knowltd|t
of trteprobltmt that additional dtaoup
action it needed: t xpantivc rtitaics
from liability would prtdudt tht
Aftncy from punuini retponsiblt
parties for additional cleanup caiu.
Alto, protrscttd negotiation* would
dtlay dtaatfp of sites. Futthtr, privatt
party dtanupi may not iacrtaM without
u ttttndant aggmtiv* tnforeement
program (unilateral adauittrative
ordan, imminent haxard tn/ofotBtnt
action* uadar CERCLA ttctioa 108. ud
cocMtcovery action* md«r ttctioa 107)
because private partUt Bay lack an
iac*nUvt to rtack oafotUted
ttttlttntat*.
Wt oavt atttapud to toilet a
baknet bttwwm tht two directions.
rtooftuzifli that no approach Bay bt
ooapltttiy adequate to tatufy all of
tfaeat concenu. While tht Aftncy
rmaint eonunitted to a ttronf arid
% ifforout ea/orceaeat pntna. it
ncofnizei that atfotiittd pnvait party
cleanup* art tttmtial to t lucenaful
dtannp projrmm. Tbt Aftr.cy will
ptdiaaau to voluntary
ttttleaenta or make* complete
ttttltatnt iapottiblt.
Tht Agency solicits comments on-
whether any tddinonal factor* or
pnaaplet thould be considered by tht
Agency in formulating a tettlemeat
policy.
0. MaaegetMttl GwhiiM* for
dtaaup. and
tnforctatnt tenon afaintt thott partin .
whott rtctleitnnct prtvtnu
Tht prtvlout Mtdement policy
iadudtd a motuct aanattBcnt
luidelint far DM after tht Aftacy bat
evaluated tat catt utinf tat ttttitmant
criterit and dttennined that the
protptcu for tueceetfoUy purtutaf the
catt were food. Tht fuidaUnt tttttd
that tht Aftacy would ftatrally
ntfoa'ttt only if tht initial offer from
PRP» was for to percent of the rtmtdy
or catu of dtanup. Thii 80 ptrctnt
thmhold wat ttttbtithtd to that the
Rational offictt would tptnd their time
and mourcttotfoOatinf ctitt where
settlement on tcctpttbrt term* tttmt
sort likely. EPA contidtrtd rttttninf
that guidtlint in thu inttrim policy.
The thmhold wat cot intended to bt
an abiolutt barrier to offers for let*
thu 80 percent, and tht etriiett erttfu
of thit inttrim policy indicated that
offen for lett tbtn that amount mifht bt
contidtrcd. However, tomt PKP* mty
have ptrceived tht fttidtline u an
tbtolutt barritr. and been rtluctant to
tpprotch the Aftncy with ralid
ttttltmtnt often becautt tbo*e offen
were not for 00 percent of the remedy or
cottt of tht cleanup. Minor volumetric
contributor! of wattei to tht file would
ftstrally be unwilling to offer 60
percent It it alto pottible that t few
recalcitrant partie* who rtfuitd to join t
froup itttlement offtr could prevent the
other* from cominf up with an 80
percent offtr.
The Afcacy contidtred a variety of
approacatt for prwrtdinf potentially
rwpoaalbla partet with a patter
opportunity aad incentive for becominf
involved In nejotiation*. They induda:
• Fiimin«HW| (of threthold:
• g»i«ti..H«| tht threthold for ctrtain
catttoritt of PRP« or ca»t*.
• Lowtrinf tat thrcshola-
• Allowiuf devit tioa Iron the
threthold when tht Region hat prepared
an evaluation of the catt, and
Headquarter! hat reviewed thit
evaluation; W*A
• Allowing negotiation* with
individual parti**.-a* leaf at the Rtfinn
ultimately recover* a certain perceauee
of the cofttc of citeUiup.
The approach in tht interim policy
conbinti tltmeau of a nuaber of thtte
option*. It tliminttet the K percent
threthold. Intteid. tht interim policy
itatt* thai tht Aftncy will ntfouau
only If tht initial offtr frott PRP*
conttitutet t tubttannai proportion of
tht remedy or dtanup coat*. RefiOBJ
art uktd to wtifh tht potential
retource deaaadt for eonducflnf
nttouttion* axaintt tht likelihood of
Itnini 100 percent of cottt or a
complttt remedy. That, while an offer
of to percent it not required to initiate
Bttottationi. then will be catt* when
offer* of to ptrctnt will da deaaed
inadtquatt. Offtr* to oeaotiitt for t
partial Mttltaant or dtaaup thould be
mhiattd by Region* u*ing tht criteria
tet forth in tectioa (V of tat policy. A
copy of the** draft tvalaattoat art to bt
forwarded to Httdquantn for review.
Tht policy announced today alto
rtcofnixe» that in ctrtain limited
cattf one* of etMt, it may bt
tppropritte for Region* to tnttr into
Detonation* even though offer* do not
rtprtttot t tubttannai porann of cott*.
Thtte eattfont* iadudt tdminittrttivt
ttttlemtnti of cott recovery tction*
where total dtaaup cottt were let* than
S200.000. »*i«
-------
Ftdtni RtfisttT / Vol. JP. No. 24 MWtday. February 8. 1965 / Noticw
5M3
parties an left to provide iht remaining
cleanup costs.
The Agency solicits commtnt on
whether substantial settlementa will bt
possible without a threshold «nd
whether eliminating the thmbold will
encourage a frtaur aiunbtr of
strutatata for either • substantial
porttM of the cotu of dtanup or of tht
deanup itself. The Agtncy also solicits
comment on how tht ttrm ~d» aaiumit
contributor" should bt dtftntd.
OL •sltast of lafotmalioa
Tht Agency will release information
concerning tbt site to facilitate
discussions of Mttltmtnt 10004 ****•
This information will include
—Identity of node* letter recipients:
—Velum* md nature of wastes
idfntifitd u dility for dtanup u'previously
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S044
Federal Renter / VoL SO. No. 24 / Tuesday. Febrmry 5. 1985 / Noticet
unknown or undetected conditions arise
or an discovered after settlement, or if
new information indicate* thtrt may be
an imminent and substantial
endangerment to public health or
welfare or the environment
Three broad approaches for
reconciling the concern* of the Agency
andofPRPsare to:
• authorize releases for remedial
actions taken pursuant to EPA-approved
Rl/FS and design:
• authorize total releases for remedial
actions taken pursuant to EPA-approved
RI/FS and design, but include a
reopener clause allowing the Agency to
seek additional cleanup action or
cleanup costs for unknown conditions
that indicate possible imminent and
substantial endangerments;
• allow vary limited releases with
reopener clauses that not only cover
imminent and substantial
endangerments. but require private
parties to respond to all other releases
or threats of release from the site.
The guidelines in this policy take the
second approach. We recognize that an
expansive release policy would be an
incentive for private party cleanup, but
its value as an incentive must be
weighed against the scientific
uncertainties surrounding the nature of
exposure to hazardous substances, their
degree of toxicity. and the effectiveness
of remedies.
Generally, the expansivenns of a
release will depend on the degree of
confidence that the Agency has in a
remedy. It may be appropriate to
negotiate « more expansive release
where responsible parties consent to
meeting and continuing to attain health
based performance standards. In
addition, the Agency is considering
allowing more expansive releases where
the private party remedy is a
demonstrated effective alternative to
land disposal such as incineration.
Under the second approach, designed
for remedial actions, PRPs will be
required to assume risks of imminent
and substantial endangwmcnts
attributable to problems not known by
ths Agency at the time the remedy was
selected. In return, EPA will ba
responsible for responding to future
releases of contaminants that do not rise
to the level of an imminent and
substantial endangerment (assuming
mat if PRPs conduct th« remedial
action, the approved remedy is
maintained as required).
Releases will be of a similar scope.
whether activities will be conducted by
EPA or by pnvate parties. Any release
policy that allowed more extensive
releases when the Agency conducted
the cleanup actions than when private
parties conducted the actions would
discourage private party cleanup, or. at
a minimum, encourage private parties to
pay for government cleanups rather than
conduct the remedial action themselves.
Private parry conduct of the remedial
action j* preferable because it is likely
to occur sooner than Agency cleanup.
and the use of private money frees the
government to use the Fund for other
sites with no identified PRPs.
The Agency is also considering
whether a more expansive release may
be allowed when the PRPs hire an
approved contractor to perform the
cleanup, and the PRPs' performance is
secured by a satisfactory pr:=ium
payment or surety bond in an amount^
well in excess of the estimated cast of
the work. The term "preaiiim payment"
refers to risk apportionment device
under which the risk of an ineffective
remedy would be mitigated by a cash
payment in excess of cleanup costs, or
another financial assurance mechanism.
The Agency solicits comments on the
interim release policy, including the
circumstances under which releases
should be granted, reopener conditions
that should be included, and whan
releases should become effective. The
Agency also solicits comment on the
premium payment or surety bond
concept.
VUL Targets for Utiganoc
The Agency is not legally required to
bring action against all potentially
responsible parties at a site. The interim
policy provides that the Agency will
continue to identify targets for Litigation
on the basis of factors such as financial
viability, strength of ths case, snd our
ability to manage litigation. This policy
also provides an additional incentive for
voluntary cleanup by targeting
recalcitrants for litigation.
The presence of a Federal agency a* a
potentially responsible party at a
hazardous waste site sometimes delays
negotiations because the position of the
Federal PRP may not be dear to
government negotiators or other PRPs.
The interim policy provides that Federal
facilities are to b« treated like other
PRPs in most respects except being
joined as a party in litigation. The
reference to administrative orders is
intended to direct the Regions to make
more aggressive use of administrative
orders in dealing with Federal facilities.
Instead of litigation, we will use the
procedures established by Executive
Orders 12C83 snd 12146 and appropriate
Memoranda of Understanding to resolve
issues remaining with these fccilities
after negotiation sr.ds. EPA will
encourage Federal facilities to
participate in the*; negotiations.
(FR Doe. SS-23M Filed 2-t-si •:« «n)
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OSWER #9835.2
DRAFTING CONSENT DECREES IN HAZARDOUS WASTE
IMMINENT HAZARD CASES
-------
TABLE OF CONTENTS
Page
Incroduccion l
I. Releases and Contribution Protection 2
A. Scope of Releases 2
B. Timing of Releases 3
C. Limiting Releases to Account for 3
an Inadequate Remedy
D. Contribution Protection 5
E. Sample Language on Releases and 7
Contribution Protection
II. Site Access 9
III. Authority of the Signatories 10
IV. Insurance/Financial Responsibility 10
A. Insurance 10
B. Financial Responsibility 11
V. Establishment of a Trust Fund 1 1
VI. Restrictions on Conveyance 13
VII. Priorities of Claims Versus Non-Settling 14
Parties
VIII. Preclusion of Claims Against the Fund 15
IX. Joint Responsibility Anrong Responsible 16
Parties for Implementing the Decree
X. Public Access to Documents 17
XI. Dispute Resolution Provisions 18
XII. Stipulated Penalties 20
XIII. Admissibility of Data 22
Disclaimer 22
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OSWER #9835.2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHfNGTON. D.C, 20460
MAY | Q85
MEMORANDUM
SUBJECT: Drafting Consent Decrees in Hazardous Waste Imminent
Hazard Cases /^.
f\ _ _ 'N j)
FROM: Courtney M. Price\__J^^J_^ It HT — iTX-<-^-
Assistant Administrator for Eiforceraent
and Complian/be Mjonitori
Jac* W.
Acting Assitnt Administrator for Solid Waste
and Emergency Response
TO: Regional Administrators
INTRODUCTION
On October 19, 1983, the Office of Legal and Enforcement
Counsel issued guidance on drafting judicial consent decrees.
That document provides general guidance on drafting consent
decrees for settlement of hazardous waste cases, provides a
checklist of provisions which ordinarily should appear in a
decree, and offers sample language for many commonly used
consent decree terms.
As the Agency enters into more and more consent decrees as
part of che hazardous was-te program, there has arisen an
increasing need for supplemental guidance specific to imminent
hazard enforcement actions under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) and section
7003 of the Resource Conservation and Recovery Act (RCRA).
These actions share common factual circumstances and yet are
sufficiently distinct from other enforcement programs to warrant
separate additional guidance. For example, many hazardous
waste cases are characterized by multiple def endants , raising
unique liability issues which must be addressed in each decree.
This guidance document will focus on those consent decree
provisions which are vital to settlement in hazardous waste
cases, but which are handled differently (or not at all) under
other programs.
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The guidance is based upon and supplements the Agencv's
settlement policy as stated in a memorandum entitled "Interim
C'£RCLA Settlement Policy" (hereinafter "Settlement Policy")
vvhicr. we issued, along with Hantc Habicht of the Department of
Justice, on December 5, 1984. EPA enforcement personnel should
interpret and apply this memorandum consistently with the
Settlement Policy and any subsequent revisions thereto.
Each decree will be negotiated amidst widely varying factua.
situations. Thus it is not appropriate to mandate tne inclusion
of model terms in each hazardous waste decree. Rather, this
memorandum is intended to suggest ways of achieving the govern-
ment's settlement goals. The sample consent decree provisions
may be incorporated as is or modified to accommodate the
inevitable eccentricities present in each case.
I. Releases and Contribution Protection
Although the greater portion of this memorandum addresses
terras which the government wishes to include within consent
decrees, it is also useful to discuss the major provisions
which are generally requested by responsible parties in settlement
discussions, i.e., releases, covenants not to sue, and protec-
tions against contribution. Since releases directly affect
liability for current and future hazards posed by a site, these
provisions must be drawn as narrowly as possible.
A. Scope of Release
The Agency's policy, absent extraordinary circumstances,
is to grant releases from liability only for that part of a
cleanup performed or funded by the responsible parties. If
only surface cleanup has been effected, the release should
clearly be Limited to liability for the work undertaken to
respond to surface contamination (as defined in the decree),
and should expressly reserve our right to bring actions against
the settling and non-settling parties for all other removal or
remedial activities. The release ordinarily should not forgive
government oversight, monitoring, and enforcement costs„
unless the settlement payment takes these costs into account,
nor should it include natural resource damages without the
consent of the trustee.
The consent decree should clearly state that the release
only extends to named parties to the agreement, and not to all
parents, subsidiaries, and affiliates, unless 1003 of the
cleanup costs are recovered. Judicial or administrative causes
of action against any other parties are to be reserved. This
language is particularly crucial where State law may require
the release of all joint tortfeasors if a release is given to
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any one_of them. Although it is our view that CERCLA calls
for unirorm federal rules of decision, as a precautionary nu_
cor.sent decree releases in these States should be phrasea "in"
terns ot a covenant not to sue in oraer co -niaimize the sossibili"
chat non-settling parties would be released from liability oy
the decree. Furthermore, the release should not extena co
liability under any statutory claim which did not norm che
basis for the complaint or clearly apply to the activities of
the settling party. (For example, a RCRA subtitle C regulator-/
action release should not cover liability under section 3013
or 7003 of RCRA or section 106 of CERCLA). Similarly, a release
or covenant not to sue should expressly apply only to civil
liability. Finally, in most cases (see the Settlement Policy,
page 15), releases should specifically reserve the defendant'1 s
redisposal liability, i.e., liability arising from off-site
disposal of wastes removed from the site.
B. Timing of Releases
Many responsible parties have sought to obtain
releases which become effective in advance of completing the
needed abatement actions. As a general rule, the Agency should
require that releases only become effective when all of the
work (including monitoring ) has been completed to EPA's
satisfaction, whether defendants financed or conducted the
work.
C. Limiting Releases to Account for an Inadequate Remedy
Although settlement agreements are often designed to
accomplish a complete and permanent remedy, the Agency must
protect itself from the possibility that the chosen remedial
option will fail to entirely abate the releases at a site and
the potential for an imminent and substantial endangerment
resulting therefrom. The Agency should use the consent decree
to minimize the risk that the government will be left to finance
a future cleanup resulting from failure of the remedy at the
site*
L» Where circumstances permit, compliance with
the decree should be linked to achieving enforceable performance-
based standards. The Agency must be in a position to move
against the settling parties for failure to attain a standard.
To the extent possible, the decree should not merely be a
broadly phrased agreement on a remedy designed to generally
meet the goals and objectives of the decree or the statute at
issue.
2. The decree should contain detailed oversight,
operation, maintenance, inspection, and monitoring requirements-
designed to prevent and uncover deviations from technical
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scandards over an extended period of time. These requirements
should be embodied in workplans submitted for approval pursuant
to che decree.
3. The decree should contain financial responsLbiLLcv
requirements, (discussed below), sufficient to cover'any costs'
arising from failure of the remedy.
4. The decree should clearly articulate any assumptions
upon which the remedial program is based. For example, a remedv
may be designed with certain characteristics of the'surrounding'
area in mind. If land use patterns change, (for example, where
a previously unused aquifer is tapped for drinking water), che
level of protection afforded to the environment by the remedy
may be insufficient to protect human health. If any of the
stated assumptions change, the Agency should reserve the right
to pursue modifications to the remedial program.
5. Finally, the decree should contain a clause
authorizing the government to reopen the decree if the site
may present an imminent and substantial endangennent to the
public health or welfare or the environment due to:
The discovery of previously unknown or
undetected conditions at the site; or
the receipt of new information concerning
the scientific premises of the decree.
(See che Settlement Policy, page 16.)
This reservation should allow the government to obtain further
remediation by the defendants or perform the work itself and
seek cost recovery. Despite best efforts at designing,
constructing, and implementing a remedial program, it is
inevitable that in a certain percentage of cases additional
work will have to be performed to eliminate such endangennents.
Responsible parties, of course, want the decree to
represent: a final disposition of responsibilities. However,
hazardous waste site abatement technology has not progressed
to the point where the Agency can be relatively sure that the
remedial techniques selected and implemented today will provide
complete and permanent protection to the public on the hundreds
of sites where work has been or will be performed. The five-part
program outlined above should maximize the degree of finality
afforded to settling parties consistent with the need to
safeguard the interests of the public.
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D. Contribution Protection
Concribution is an equitaole remeav basea on the
principle chac one who has paid Tore than a r'easonaoLe urojor-
cion of a judgment or debc is entitled to reinoursersenc' rr.rti
ocher liable parties. The issue of contribution will ?e
particularly critical in nuic i - party cases chac involve secne-
ments with fewer than all or che responsible parties ana -.ere
the government may sciLL sue some or all or tne non-sett.. ,r.z,
parties. Ancicipacing chac the government 3ay sucessrully
pursue a non-secclor, a defendant may demand chac the United
States agree to protect it from any claim tor contribution
from any non-settling party as a condition to signing a consent
decree. The efface of such a contribution protection Clause
sought by a settling defendant would be co have cne Unitea
States agree to reauce its judgment against a non-settling
responsible party by che amount or contribution ordered to oe
paid by a settling defendant to the non-settling party in
subsequent Litigation.
It is the Agency's view chat contribution protection
clauses are largely unnecessary. Many States* have already
enacted Laws which protect setclors from subsequent contri-
bution actions. These laws have been modeled on Section u of
the Uniform Contribution Among Torcfeasors Ace (1955 Revision),
drafted by the National Conference of Commissioners on Uniform
State Laws, which provides:
"When a release or a covenant not to sue or
not to enforce judgment is given in good faith
to one of two or more persons liable in tort
for the same injury or the same wrongful death:
"(a) It does not discharge any of the other
tortfeasors from liability for the injury or
wrongful deacn unless its terras so provide;
but ic reduces the claim against the others to
th* fcxtfcat of, any aioount. stipulated by t,h.e
release or the covenant, or in the amount of
the consideration paid foe it, whichever Is
the greater; and,
* Seventeen States have adopted this Section or a similar
provision: Alaska, California, Colorado, Florida, Illinois,
Massachusetts, Michigan, Missouri, Nevada, North Carolina,
North Dakota, Ohio, Oklahoma, Oregon, Tennessee, Virginia, and
Wyoming.
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"(b) Ic discharges the torcfeasor co whom it
is given from all liability for contribution
to any other tortfeasor."
Under this rule, once a reasonable, comprehensive, and good
faith agreement has been reached, settling parties would be
immune from third-party contribution claims.
The Agency is taking the position that federal courts
should use Che model rule as the standard for resolving
contribution questions. The United States will be willing Co
include language in a consent decree which states thac it
is the intention of the parties that future contribution
actions against settlors be prohibited and encouraging courts
to consult the Uniform Act as the federal rule of decision.
Contribution protection clauses will therefore generally not
be necessary for consent decrees.
As the Settlement Policy points out, however, providing
protection from contribution to settling defendants may be
appropriate in limited cases. If, under the law likely to be
applied, contribution actions by nonsettling defendants may
be permitted, EPA may consider providing contribution protection
when two factors are present:
1) the settlement addresses a very high percentage of the
total cleanup; and
2) the relative responsibilities of the responsible
parties can be clearly allocated, so that future actions are
not likely to reapportion liability.
On a case-by-case basis, the litigation team will assess whether
these factors and other circumstances in the case warrant
inclusion, of cao.tr tbxition protection in the decree.
Of course, the greater the percentage of cleanup covered
by the decre«r the Lower che risk that claims for contribution
will be successfully asserted against settling parties. Compre-
hensive settlements will maximize the chances that compliance
with the terms of the decree discharges a company's liability
for a site.
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E. Sample Language on Releases and Contribution
Protection
The following sample consent decree language assumes
that tocal cleanup has been or will be undertaken by the
responsible parties pursuant to EPA approved procedures. It
also assumes that the site is located in a State where the
release of one joint tortfeasor operates as a release on all
others.
Covenant Not to Sue
In consideration of work which has been and
will be performed and payments which have
been made by the Company under the terms of
the Decree, the Governmental Parties (herein-
after "Government") hereby covenant not to
bring any civil judicial or administrative
action against the Company and its officers
and employees for any claim or cause of
action cited in the Complaint relating to
"covered matters." "Covered matters" include
liability arising from [work performed under
the decree] and [specified costs incurred to
date]. The covenant shall become effective
upon completion to EPA's satisfaction of the
remedial activities described in the attached
specifications. To the extent that State
law is deemed to govern liability arising
from activities related to the Site and the
interpretation of the terras of this Decree,
the parties do not intend this section to
serve as a general unqualified release.
This section should: be construed as a coven-ant
not to sue the Company, and should not act
to release any other party from liability.
ThLs covenant not to sue does not extend to
liability for damage to natural resources, as
defined in CERCLA, to liability arising from
hazardous waste removed from the site, or to
future monitoring or oversight expenses incurred
by the Government. In addition, notwithstanding
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any ocher provisions of this decree, che Government
reserves che righc co seek modification Co chis
Decree or insticuce a new accion co seek additional
remedial measures ac che sice, through an accion
co compel che defendants' co perform remedial work
or reimburse che Governmenc for cleanup coses, if:
(1) ac any cime previously unknown or undececced
conditions at che Sice presenc or may presenc an
imminent and substantial endangerment to the
public health or welfare or che environment;
(2) the Agency receives new information,
concerning che nature of che substances ac
che site or che appropriateness of che remedy
described in Appendix I, which indicates that
site conditions may present an imminent and
substantial endangerment to the public health
or welfare or the environment.
(3) [there occurs a change in one or more
assumptions upon which the remedial program
is based. (See discussion in part C above) .}-
The parties recognize the possibility thac
there may be brought or asserted against che
Company suits or claims for contribution for
liability for covered matters by persons or
entities that have noc entered into this
settlement that might, if successful, obligate
the Company to pay amounts toward covered
matters in addition to those recognized in
this Decree. It is the expressed intention
of the parties chac the Company not be required
to pay amounts in contribution for covered
matt.era or be required to remain as parties
in any suit or claim for contribution for
covered matters. It is also agreed that the
Government shall be under no obligation to
assist the Company in any way in defending
against such suits for contribution..
The parties represent that this Decree was
negotiated in good faith and that the
Company's undertakings at the Site represent
a fair and equitable assumption of the Company's
alleged responsibilities for covered matters
considering, among other factors, the fact that
it is in the best interest of the Government
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Co encourage equitable settlements without
burdensome litigation. The parties agree
that federal law should govern questions
of contribution among parties that may be
adjudicated to be liable jointly or severally
for covered matters. The parties agree
that, in determining the appropriate federal
rule of decision to establish the effect of
this Decree on possible rights of contribution,
a court should adopt the principle set forth
in Section 4 of the Uniform Contribution Among
Tortfeasors Act.
II. Site Access
It is essential chat EPA have access Co the site in order
to observe any work taking place and monitor compliance with
the terras of che decree. Language grancing access should
provide access during the effective period of che decree ana
describe the scope of che inspector's powers.
A sample site access clause is:
During che effective period of Chis decree,
EPA or ics representaCives, including
contractors, shall have access at all ciraes
to the Sice and all property owned or
controlled by che defendanc for purposes of
conducting any accivicy authorized by CERCLA,
including but noc limited co:
A. Monitoring the progress of activicies
taking place;
B. Verifying any data or information
submitted to EPA;
C. Conducting investigations relating to
contamination at or near the site;
D. Obtaining samples at the site; and
E. Inspecting and copying records, operating
Logs, contracts, or other documents
required to assess the defendant's
compliance with the Decree.
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In addition, che defendant will not object to
EPA's obtaining, for che above purpose, access
co any establishment or place owned or operated
by_any third party under contract with the
defendant. Nothing herein Limits or otherwise
affects any right- of entry held by EPA pursuant
to applicable laws, regulations, or permits.
Where it is necessary for EPA to have access to the
property of a defendant for a long period of time, an easement
over the property may be desirable. The easement should run
with the land and be recorded co place all future purchasers
on notice.
It is important that access considerations be taken into
account at the beginning of a lawsuit in order that all
appropriate parties be brought under the court's jurisdiction.
The government may often want to name an "innocent" landowner
as a defendant solely for the purpose of facilitating access
to his or her property to conduct response activities.
III. Authority of the Signatories
Obviously it is important that persons signing a
settlement agreement have authority to sign for and bind their
principals. Sample Language Co provide for chis is:
Each of the signatories to this Decree certifies
thac he or she is fully authorized to enter into
the terms and condicions of chis Decree and
to legally bind che parcy co che Decree so
represenced by him or her.
Where there is any doubt regarding che coramicment of the
principals to the decree, or in .cases where substantial suras
are at stake, the government, in an abundance of caution, may
wish, to require thac the principals themselves be signatories
co the> decree-.
IV. Insurance/Financial Responsibility
A. Insurance. Where the cleanup is being, conducted
by a responsible party, che party shouLd be required to
protect both itself and EPA from liability, by purchasing
insurance or through another financial mechanism, from injuries
to third parties due to acts or omissions of the party conducting
the work. For example:
The Company shall purchase and maintain in
force insurance policies in the maximum amount
available, which shall protect the United
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Scaces and the public against any and
all Liability arising ouc of che' Company's
and its contractors' and other agents'
acts or omissions in performance of the
work. Prior to commencement of work at
the Site, the Company shall provide EPA
with a certificate of insurance and a copy
of the insurance policy for EPA's approval.
B. Financial Responsibility. In addition to liability
insurance, it is important to have assurance that the party
conducting the work will have the financial capability to
complete the work. This can be accomplished by several r.eans :
(1) Performance bond;
(2) Letter of credit;
(3) Guarantee by a third party; or
(4) The party conducting the work, can present the
Agency with internal financial information sufficient to satisfy
the Agency that the party has enough assets to make it unnecessary
to require additional assurances. If this method of financial
responsibility is chosen and if the term of compliance within
the Decree is greater than one year, then the Decree should
provide for the party to annually submit internal financial
information. If the Agency then determines the financial
assurances to be inadequate, the Decree should provide that
the party can be required to obtain a bond or one of the other
financial instruments listed above.
A performance bond by a reputable company is generally
the preferred type of assurance. The bond should assure that
the work will be completed regardless of remaining cost. The
latt.ec two mechanisms require a detailed examination of the
financial status of Che party doing the work and the Guarantor.
No matter which financial instrument is used, EPA should be
authorised in the Decree to approve such instrument before it
is incorporated into the agreement.
V. Establishment of a Trust Fund
Frequently in multiple-party generator cases, the
generators will want to select a contractor to clean up the
site. If the contractor is a party to the litigation, the
consent decree may make the contractor expressly responsible
for the cleanup and the generators responsible for paying for
the cleanup. However, in order to assure completion of the
work, the generators should also remain liable until completion.
The funds to pay for the cleanup are collected in advance from
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che generacors. The most commonly used mechanism for accomp-
lishing chis is che escablishraenc of a cruse cund or escrow'
accounc for paving che concraccor. The cruse rund or che
account can be administered by a Scace or ocher public ar.cicv
or a bank or similar encicy experienced in administering cruse
funds. Neither EPA nor ocher Federal agencies should aaminisce:
che fund. 'However, che Decree should . provide chac EPA muse
approve che form of che Trusc o'r escrow agreemenc. The consent
decree should specify how che fund will be creaced, how mucn
money is Co be deposited inco che fund, and how disbursements
will be made from Che fund. The fund accounc should earn
inceresc.
Disbursements are usually linked to completion of cercain
oiilescones required by Che decree. Agency approval may oe
required for each disbursemenc. The final paymenc should not
be made until the contractor has certified, ana tne Agency has
confirmed, chat all work Co be paid for by the fund has been
completed. It may also be desirable to establish a scnedule of.
payments from the fund to assure that the money remaining in
the fund is sufficient to pay for completion of the cleanup
should the contractor default. The Decree should provide chac
EPA does not guarantee the sufficiency of the fund. A sample
trust fund clause is:
Within three days after the entry of this
Decree, the Companies each shall pay to the
site Trust Fund (hereinafter the "Trust Fund")
established at the Bank the sum which is shown
for chat Company in Exhibit A hereto. Prior co
establishment of the Trust Fund, the form of the
trust agreement must be submitted to EPA
for its approval. The Trustee shall deposit
the money in an interest-bearing account
and use the money In the Trust Fund to pay the
Contractor to perform the Work described in
Exhibit: B hereto (hereinafter referred to as
the "Work"), which Exhibit is hereby incorporated
by reference and made a pace of chis Decree as
though it were set forth verbatim. All money-
remaining in the Trust Fund after completion
of Che work, including inceresc earned, shall
be deposited in the Hazardous Substances Response
Trusc Fund as recompense for response coses
incurred by the United States not otherwise
reimbursed under the terms of this Decree.
EPA does not guarantee the monetary sufficiency
of the Trust Fund established by this section.
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A sample Schedule of Farrier.:: clause is:
The funds vjill be disbursed in accordance with
che following sci-.ecule.
(a) Upon entry of this Decree che Contractor
snail receive SLOG,000 from -he Trust Fund.
(b) Upon completion and approval by EPA
of items 1, 2, and 3 of the work, the
Contractor shall receive 3300,000 from che
Trust Fund within no more than 20 days
after receipt of the Trustees of an applica-
tion for payment by the Contractor.
(c) Upon completion and approval by EPA,
of items ^, 5, 6, and 7 of the Work, the
Contractor shall receive 3500,000 from the
Trust Fund within no more than 20 days after
receipt by the Trustees of an application for
payment by the Contractor.
(d) Upon inspection of the Site and
certification by the United States that
the Contractor has completed the Work., the
Contractor shall receive $500,000 from the
Trust Fund within no more than 30 days after
receipt by the Trustees of an application
for payment by the Company. All remaining
money in the Trust Fund, including earned
interest:, shall be deposited in the Hazardous
Substances Response Trust Fund.
VI. Restrictions on Conveyance
It is important that a subsequent purchaser of real
property is notified thac che site is the subject of a consent
decree, and chat he may be required to fulfill the terms
therein. There are several methods of providing such notice:
1. Depending upon che State, one may notify a
subsequent purchaser by recording or filing a copy of the
consent decree with the County Recorder (Registry of Deeds) or
Clerk of Courts, so chat a title search would reveal the exis-
tence of the decree. Individual Scare law will have co be
considered as to the proper method of recordation.
2. The decree may require that the grantor notify
the plaintiff, prior to che transfer of title, of che name of
the grantee and, subject to EPA approval, what specific
requirements of the consent decree will be performed by the
grantee.
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3. The grancor nay be required co include
notification in che conveyance (deed) chac che property is
subject co che terms of che consenc decree, ar.a nay also be
required co describe in che conveyance che prior use of che
sice, (e.g. , use as a hazardous waste disposal facility,'!.
The :najor concern in fashioning any type of language is co
allow for free alienation. Language such as the following
should achieve our objectives:
Within thirty days of approval by che Courc
of chis Decree, defendant shall record a
copy of this Decree with the Recorder's
Office, County, State
of .
The site as described herein may be freely
alienated provided that at least sixty days
prior to the date of such alienation derendanc
notifies plaintiff of such proposed alienacion,
the name of the grantee, and a description or
defendant's obligations, if any, to be performed
by such grantee. In the event of such alienacion,
all of defendant's obligations pursuant to chis
Decree shall continue to be met by defendant or,
subject to EPA approval, by the grantee.
Any deed, title or other instrument of conveyance
shall contain a notice that the sice is che
subject of this Decree, setting forth the style
of the case, case number, and Court having
jurisdiction herein.
These provisions, of course, are only applicable to sices
where the landowner is a named defendant. In cases involving
non-landowner defendants, the government may wish to specify in
the decree that sale of che sice has no effect on the obligations
of such defendants.
VII* Priority of Claims Versus ffon-Settling Parties
When a case is settled for less than the cocal araounc
necessary to complete a response action or to reimburse
plainciff fully for costs incurred, it may be- done so with the
anticipation that the non-settling parties will be available
Co reimburse che Agency for che remaining balance and/or
complece che response accion. To ensure chac sufficienC funds
are available or co avoid delay in colleccing on any judgmencs
as co non-seccling parcies, a provision may be included in che
consenc decree providing chat an Agency judgment obcained
againsc non-seccling parties cakes prioricy over chac obcained
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by ar.v of the seeding parries. Sample prior-ley of claims
language is as follows:
Defendant's cLai^i against any other responsible
party in this or any other proceeding for
contribution or indemnification of ail or a
portion of the cost of its .settlement herein
shall be secondary-to the'United States'
claim against such other responsible party
as to any remaining balance for the response
actions or other costs incurred for action
taken at the Site.
VIII. Preclusion of Claims Against the Fund
Section 112 of CERCLA provides a procedure whereby a
private party which has performed a CERCLA cleanup may assert
claims to recover such costs from the Fund assuming the party
has received "preauthorization" pursuant to the National
Contingency Plan. See 40 CFR § 300.25(d). The right to
recover such claims is subrogated to the United States by the
payment of such a claim.
In multiple party consent decrees, it is important to
include a provision prohibiting future claims against the Fund
by the responsible parties, unless the responsible parties
are explicitly preauthorized to bring a claim as part of the
settlement.^/ Such a provision is particularly important in
cases where defendants may later allege that the percentage
of the total remedial costs that they contributed to the settle-
ment is disproportionate to the extent that they contributed
to the problem at the site.
The language should be extremely broad and unequivocal.
An example of such a provision is provided below:
In consideration of the entry of this Consent
Decree, defendants agree not to make any claims
pursuant to Section 112 of CERCLA, 42 U.S.C.
Section 96TZ, or any other provision o£ Lav
directly or indirectly against the Hazardous
Substance Response Trust Fund established by
CERCLA or other claims against the United States
V As EPA policy on the Issue of combining private party
cleanup with Fund expenditures evolves, there may arise
situations where a claim against the Fund would be permissible.
The language above should be followed pending further guidance
on circumstances where exceptions might be permitted. In addition,
statutory amendments to CERCLA that would obviate the need for
this provision are currently under consideration by Congress.
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for expenses related ~o chis cas«2 -ip.d this
Consent Decree. Notning in this Consent Decree
shall be deemed to constitute preauthorization
of a CERCLA clai-n within tae meaning of ^0 Cir'R
§ 300.25(d).
Consent decrees with similar provisions include the Petro
Processors, Bluff Road, Chetn-Dyne, and Seymour decrees. In
cases involving just one responsible party, such a provision
should also be included since there is always some doubt
concerning whether there may be other, perhaps unknown at the
time, responsible parties.
This provision should be relatively non-controversial
because any defendant willing to enter a consent decree
presumably is willing to pay the portion of the cleanup
specified in the decree.
IX. Joint Responsibility Among Responsible Parties for
Implementing the Deere"?
The Agency has consistently interpreted CERCLA as
authorizing imposition of joint and several liability on all
responsible parties. The predominant case law accepts that
interpretation. It is important to preserve this principle in
multiple defendant cases. Also, from a practical point of
view, it is necessary to have the consent decree recognize
joint responsibility in order to prevent the insolvency or
other problems of one defendant from delaying the entire
cleanup.
In order to provide assurance that cleanup will proceed
on schedule, consent decrees should include a joint responsi-
bility provision, such as the example set forth below:
The Industry Defendants shall implement the
remedial actions for both sites as provided
in this Decree, in accordance with the
schedules established in the various plans
and in this Decree.
In che event of the insolvency or other
inability of any one or more Industry
Defendants to implement the activities
required by this Decree, the remaining
Industry Defendants agree to complete all
such activities and actions required by
this Decree.
If there is only one responsible party, then particular
care must be taken in drafting the Guarantee, Performance/
Completion Bond or Financial Responsibility provisions, to
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provide assurance chac there will be adequate resources to
complete implementation of "he remedial measures.
X. Public Access to Documents
Many consent decrees require an elaborate L nves citation
and study phase, similar to a CERCLA RI/FS, before scoe or all
of the final remedial actions are Determined. In all cases,
many engineering details, protocols, and specifications are not
determined until the consent decree is implemented. Substantial
amounts of technical information and detail will be determined
during the implementation of the consent decree unaer EPA's
oversight.
The public is otten intensely interested in tne progress
of such remedial actions. When EPA is performing the remedial
action pursuant to CERCLA, the Agency makes information and
draft proposals available through a community relations plan.
It is EPA policy to implement at all sites, regardless
of whether the cleanup is performed by the government or the
responsible party, a community relations plan which encourages
public participation in the cleanup process. This policy,
however, must be balanced against the need for confidentiality
in enforcement actions. Since the implementation of a consent
decree may give rise to disputes with the responsible party
which end up before the court, implementation of the consent
decree is still litigation-related.
In general, consent decrees should contain provisions
that explicitly require that all technical data and factual
information generated and submitted by the defendant are
available for public inspection unless they are requested to
be made confidential by Che defendant pursuant to EPA regulations
(see 40 C.F.R. Part 2). Where possible, specific and general
categories of data and information that the defendant must
make public should be specified. Because of the need to protect
open and frank inceragency communication, this provision should
not apply Co Agency information or documents. However, raw
technical data generated by EPA or the State, if applicable,
should be made public nonetheless after all applicable quality
assurance/quality control protocols have been complied with.
After a consent decree is signed, EPA. and the defendants
may nonetheless continue negotiations over matters left
unresolved by the decree, (e»e., remedial proposals which must
await completion of additional sampling and analysis). In some
cases, EPA and the defendants might be urged to make public
all draft remedial proposals leading up to settlement. To
avoid this unproductive and impractical procedure, EPA should
include explicit language in the consent decree exempting
negotiation documents from the public disclosure provision.
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- 13 -
Also. EPA should consider clearly articulating from, che
of che comraunicy relations program chat "negotiation" d
are not official submissions within the meaning or che consent
decree clause.
An example or such a provision is provided below.
All data, factual information, and documents
submitted by the Defendant to EPA ana the
Scate pursuant to this Consent Decree shall
be subject to public inspection unless
identified as contidential by Defendant
in conforraance with 40 C.F.R. Pare 2 or
applicable State law or otherwise exempted
by the terms of this Consent Decree. The data,
factual information and documents so identified
as confidential will be disclosed only in
accordance with EPA regulations or applicable
State law. The Defendant shall not; assert
confidentiality regarding any..hydrogeological
or chemical data, data submitted in support
of a remedial proposal or any other
scientific or engineering tests or data.
This provision does not apply to documents
exchanged by the parties relating co issues
of liability or the determination what additional
remedies, if any, other than those specifically
required by the terms of this Decree, may be
necessary to remedy conditions at che site.
XI. Dispute Resolution Provisions
Hazardous waste consent decrees may require one or
several parties to take samples, perform studies, and implement
other remedial steps about which there may arise differences
of opinion whether the obligation was satisfied. Such
differences of opinion may also arise over whether or not a
force maj eufe event has occurred, or whether che defendant has
incurred liability to pay stipulated penalties under che decree.
As noted in the general guidance on consent: decrees, it La
useful for the decree to specify a mechanism or mechanisms to
resolve such disputes.
Such mechanisms may include negotiations among the parties
as well as judicial resolution. The sample Language below
provides for both, although the parties would probably discuss
the issue and engage in limited negotiations even if the decree
did not expressly mention such1-a mechanism.
Particularly where the dispute concerns the implementation
of remedial work, it is important to resolve it quickly. Some
disputes may be more quickly resolved by discussion and
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negotiation among che parries rather -han a juaiclai hearir.2,
however1, it is important not co allow negotiations co consume
coo much time. Therefore, che government shouLc not nesicace
co seek judicial resoiucion of disputes which che parties
cannot readily resolve among themselves.
"/."here possible, it is helpful co minimize che drain on
Agency resources by placing on che defendanc che burcen co
demonstrate chat ics proposal is -nose consistent wich che
purposes of che decree. An accepcable sample provision :olLc;
DISPUTE RESOLUTION
The parties recognize chac a
dispuce may arise among defendanc, EPA
and che Scate regarding plans, proposals
or implementation schedules required co be
subraicted by defendanc pursuant co che terms
and provisions of this Consent Decree, or
regarding whether a force majeure event, as
defined in paragraph ot this Decree,
has occurred, or whether defendants have
incurred liability to pay stipulated penalties
under paragraph . If such a dispute arises,
the parties will endeavor to settle it by gooa
faith negotiations among themselves. If the
pa-rties cannot resolve the issue within a
reasonable time, not to exceed thirty calendar
days, then any party may file a petition with che
Court setting forth the matter in dispute.
The filing of a petition asking the court
to resolve a dispute shall not extend or
postpone defendant's obligations under this
decree with respect to the disputed issue.
In the event of a dispute between
defendant and EPA or the State, defendant
shall have the burden of: (1) showing that
Its proposal Is more appropriate than the
proposal of EPA or che Stace co fulfill che
terms, conditions, requirements and goals
of this Decree, and (2) demonstracing chac
its proposal is consiscenc with the National
Contingency Plan; will abate hazards at, che
sice; and will protecc public healch, welfare,
and the environment from the release or
threat of release of .hazardous substances at
the site. If the dispute concerns an issue
of science, technology, or public policy
within the areas of EPA's expertise, the
Court shall adopt the position (if any)
proposed by EPA, unless the Court finds that
position to be arbitrary and capricious.
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XII. Stipulated Penalties
Hazardous wasce decrees which establish obligations for
defendants to complete in the future should contain stipulated
penalty provisions to assure that the defendant will comply
with its obligations and co minimize disputes over the
appropriate, sanction for failures no comply. Such obligacions
will typically include the implementation of remedial work
(including construction requirements), and reporting ana
monitoring requirements.
The purpose of a stipulated penalty clause is to deter
potential violations of the decree by associating with each
violation the immediate obligation to pay a Large enough
penalty to make compliance more attractive crxan violation.
However, even payment of a stipulated penalty should not
deprive the government (or the court) of other remedies,
including injunctive relief, and every stipulated penalty
provision should contain a clause to this effect. Stipulated
penalties should never be considered as setting a maximum
penalty exposure, subject to negotiation downward.
The authority of the district court to impose monetary
penalties or fines for prospective violations of consent
decrees flows not only from the civil penalty authorities of
the environmental statutes (e.g., RCRA §§ 30O8, 7003(b) ;
CERCLA § 106(b)), but also from che court's civil contempt
power — its independent statutory authority Co punish violation
of its lawful orders by fine or imprisonment. 18 U.S.C.
§ 401. When fines under § 401 are prospective, applying only
to future violations, they are considered "coercive," intended
to give the defendant an. incentive to comply with the court's
order. Prospective fines under § 401 are noc subject co the
monetary limits in the penalty provisions of other statutes.
Stipulated penalties should be large enough to provide a
real incentive to the defendant to fulfill its obligations on
time, considering the financial strength of che defendant, any
economic saving iron delaying compliance, and. any bvana or risk.
of harm to public health or the environment from delaying
compliance. (See Perfect Fit Industries, Inc » v. Acme Quilting
Co., Inc., 673"T72d 53 (2d Cir. 1982). cere, denied 103 S.Ct. 7i.)
AE the same time, the magnitude of stipulated penalties should
not be so great that che defendant prefers to allow the govern-
ment to perform remedial work with Superfund money, rather
than perform work itself.
Depending on the facts of the case, it may be appropriate
to-, a) specify all numbered paragraphs the violation of which
will be penalized; b) establish a schedule of per diem penalties
which increases with the duration or extent of the violation;
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or c) establish higher penalty amounts for Tore important
violations.
Stipulated penalties -nay be divided between the Unites
States and a State is co-plair.t if £ s , provided that : (1) the
State has taken an -.acive part in the litigation, including
the seeking of stipulated pena.Lci.es , -and (2) State law provides
independent authority for the State to obtain civil penalties.
The following sample language demonstrates escalated
stipulated penalties, and a division of stipulated penalties
between the [Jniced States and a State.
STIPULATED PENALTIES
(A) Unless excused by the provisions
of paragraph (force majeure clause], the
Defendant shall pay the following stipulated
penalties for any failure to comply witn
time requirements of this Consent Decree,
including any implementation schedules
submitted by Defendant and approved by
EPA/State or this Court:
Period of Failure to Comply Penalty Per Violation Per Dav
1st through 14th day 51,500
15ch through 44th day 55,000
45th day and beyond 510,000
(B) Stipulated penalties under this paragraph
shall be paid by two certified checks of equal
amounts with one-half of the daiLy penalty payable
to the "Treasurer of the the United States" and
the other one-half payable to the "Arkansas
Department of Pollution Control and Ecology."
(C) The stipulated penalties set forth above
shalL be Iff addition co any ocher remedies or
sanctions which may be available to EPA/State by
reason of Defendant's failure to comply with the
requirements of this Consent Decree.
(D) If che parties disagree whether
Defendant has violated a provision of this decree
for which a stipulaterf-pejialty is due, the
Defendant may petition the Court under [dispute
resolution paragraph"]. Defendant must file any
such petition within 30 days of receiving written
demand for payment from the Plaintiff.
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XIII. Admisslbi.Li.tv of Data
In order Co avoid disputes over the integrity of sample
resales or other data in the evenc that che parties disagree
over how to implement the consent decree, the decree should
provide that verified data is admissible in evidence.
A model clause is:
The Defendants waive any evidentiary
objection to the admissibility into evidence
of data gathered, generated, or evaluated
pursuant to this decree that has been verified
by the quality control/quality assurance
procedures contained in part . However,
a Defendant may object to a specific item
of evidence if the objecting party demon-
strates that such item of evidence was not
gathered or generated in accordance with the
sampling and analytical procedures estab-
lished pursuant to the site Work Plan.
The Decree should provide that EPA must approve sampling
and analytical procedures. Additionally, it is necessary for
there to be a careful oversight program.
DISCLAIMER
The policies and procedures established in this document
are intended solely for the guidance of government personnel.
They are not intended and cannot be relied upon to create any
rights, substantive or procedural, enforceable by any party in
litigation wich the United States. The Agency reserves the
right to act at variance with these policies and procedures and
to change them at any time without public notice.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 204(0
JUL 121985 9832>6
MEMORANDUM
SUBJECT: Snail Cost Recovery Referrals
FROM:
~ »/ «^«»».*w ^
Frederick F. Stiehl &*^t
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9832,6
As you know, the Agency is working toward providing the
Regions with both the tools and the authority to settle small
cost recovery cases (up to $500,000) administratively. To
ensure that such administrative resolutions are attractive
options for responsible parties, however, the Agency oust be
prepared to take judicial action against those who do not
cettle on terns acceptable to the Agency. Under such circum-
stance*, email cost recovery actions will take on an even
greater importance, since it will .be necessary to show the
regulated community that the Agency is serious about pursuing
•mall cost recovery cases in the judicial, as veil at the
administrative, forum. In furtherance of that effort, our
offices and the Department of Justice are prepared to fully
support snail cost recovery cases referred by the Regions which
further prograa goals and are otherwise consistent with Agency
policy.
For most of you this memorandum simply confines operating
guidance which you are already following. We wanted to ensure,
however, that the Settlement Policy did not create any undue
reluctance on the part of the Regions to develop «aall cost
recovery cases for referral.
cc: David T. Buente, Department of Justice
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY OSWER * 9837.1
\
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- 2 -
or present precedential issues, Headquarters or the
Department of Justice can be brought in informally
without a referral.
• Financial Viability of Potential Defendants. It is
important that all referrals contain complete information
based on thorough research regarding the financial
status and insurance assets of potential defendants.
Chapter III of the Case Management Handbook describes
the contents of a hazardous waste referral, including
the types of information required regarding potential
defendants.
* Endangerment Assessment. A complete endangerment
assessment must be included in all referral packages
for CERCLA S106 and RCRA §7003 cases. The endangernent
assessment should contain information sufficient to
establish a prima facie imminent hazard claim.
Appendices two and three of the Case Management Hand-
book contain a checklist of facta necessary for imminent
and substantial endangerment cases.
* Cost Docunentat ion. The Region must submit accurate
cost recovery check lists to OWPE at least six weeka
prior to submitting the referral package to Headquarters.
This will ensure chat cost recovery cases referred to
the Department of Justice will have thorough cost
documentation as required by the Case Management Hand-
book, Appendix one.
The Department of Justice is required to file a complaint
within 60 days of the referral froa EPA. The 60 day period is
intended to allow the Department of Justice co review the
litigation report and prepare its final pleadings. The 60 day
period is not intended to allow che Agency time co provide
supplemental information for Che referral package or make
initial contact with -the defendants regarding che possibility
of settlement.
All requests co che Department of Justice co delay che
filing of a case beyond che 60 day period must be Bade by che
Assistant Administrator for OECM. To originate such a request,
the Region smsc write che Assistant Administrator for OECM.
Any request by che Region Co OECM co extend che filing date of
an action should be made before Che 60 day period ac the Depart-
ment of Justice has run. We have informally stressed co che
Department thac che filing of cases should noc be delayed in
reliance on che Region's intention to request such a delay.
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- 3 -
Effective prosecution of hazardous waste cases, once
referred co the Department of Justice, is & critical element
of the Agency's enforcement strategy. Compliance with the
procedures set out above and in the <"?<:•> Management Handbook
will assure that matters approprii . Judicial enforcement
will be referred and filed in a tiseiy way. If you have any
questions regarding these procedures, please contact me.
cc: Gene A. Lucero, Director, OWPE
David T. Buente. Acting Chief, Environmental Enforcement
Section, DOJ
Richard H. Hays, Senior Enforcement Counsel
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OSVJL. 9334.2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C 204(0
OCT 9 1335
O«»iCt O»
W*$T£ AND
MEMORANDUM
SUBJECT: Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters^ and Release of Information
FROM: Gene A. Lucero, Director
Off-ice of Waste Programs
TO: Addressees
PURPOSE
This mer.orandan re-emphasizes the importance of early
identification of potentially responsible parties (PRPs) and
timely issuance of notice letters for the RI/FS. These actions
support the Agency's policy to secure cleanup by responsible
parties in lieu of Superfund use, where such cleanup can be
accomplished in a timely and effective manner. The sooner
PRPs are identified and notified about their potential responsi-
bility, the more time they have to organize themselves to
assure responsibility for the RI/FS and cleanup (See "Partici-
pation of Potentially Responsible Parties in Development of
Remedial Investigations and Feasiblity Studies Under CERCLA*"
Lee M. Thomas and Courtney M. Price, March 20, 1984).
This memo also clarifies Agency policy on release of
site-specific information to PRPs and others. It supplements
the information release section of the Interim CERCLA Settle-
ment Policy (December 5, 1984). The clarification is designed
to facilitate information exchange in order to encourage effec-
tive negotiation and coalescing by PRPs among themselves.
Effective PUP negotiations and coalescing are likely to engender
effective settlement discussions with the government.
INITIATION OF PRP SEARCHES
In an effort to expedite and streamline the RI/FS process,
you should focus attention on early identification of PRPs and
timely issuance of notice letters. As you are aware, in FY 86
you will be required to conduct PRP searches for NPL Updates
3, 4, S, and 6. This will be reflected in your SCAP targets.
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OSWER * 9834.2
-2-
In order to acccrpli:-u. this, it will be necessary to start ?5?
searches concurrently witn developing sites for listinc. At
the latest, PRP searches should be initiated when candidate
sites are sent to K? for NPL quality control "review. You win
need to plan accordincly for this activity, particularly in
your case budgets.
Technical assistance resources for PRP searches are avail-
able through the Techncial Enforcement Support Contracts, TES I
and TES II, and are coordinated through the case budgeting
process. Each Region will be given a line of credit to support
the costs of responsible party searches, title searches, and
financial assessments. This credit will be allocated by a
straight-forward calculation of average past costs of such
activities multiplied by the nunber to be done in each Region.
Because of the heavy work undertaken by TechLaw in both
the TES I and TES II contracts, the prime contractors have been
distributing new work assignments for PRP searches to other
subcontractors. This should result in more timely reports.
NOTICE LETTER ISSUANCE
Timely issuance of notice letters for the RI/FS normally
means that notice letters are issued as soon as possible after
completion of the PR? search and prior to any Federally-financed
response action. Timing of the notice letter should take into
account the number of PRPs and the complexity of the data
associating PRPs with the site. In general,-notice letters
should be issued 60 days before obligation of RI/FS funds
(See "Procedures for Issuing Notice Letters," Gene A. Lucero,
October 12, 1984). PRPs should therefore have sufficient time
to organize themselves and initiate preliminary contacts and
discussions with Agency personnel. This will also avoid delay
in beginning a Fund financed RI/FS should it become necessary.
Notice letters are generally combined with information
requests under RCRA $3007 and CERCLA S104(e) (See "Policy on
Enforcing Information Requests in Hazardous Waste Cases",
Courtney M. Price, September 10, 1984). Notice letters are an
important step in determining whether a PRP is willing and
financially cap.able of undertaking a proper response. The
NEIC Technical Information Center is a useful source for assess-
ing the financial viability of PRPs that offer stock to the
public. For privately held companies, the TES contract can be
used to estimate the financial capability.
Notice letters should be issued only to parties where
sufficient evidence is available to make a preliminary determi-
nation of liability under CERCLA $107. Where doubt exists as
to whether available information supports notice letter
issuance, information recuests should be sent prior to notice
letters.
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_3_ OSWER * 9834.2
In the past, retire letters were se-t t: PRPs v'r.z -ay cr
nay not have £>een liarle under CERCLA. This -ay oe avoided by
issuing notice letters to parties where sufficient evidence is
availasle to make a preliminary deter-.ination of liability
under CERCLA $107. Frr exar.ple, parties known to have arranged
for disposal of material which is not known to contain a hazard-
ous substance should not receive a notice letter. The Regions
should be particularly aware of the adequacy and completeness
of the PRP seanrches. This will -far. spending resources on
the quality review of contractc • ' I'm sure this will
save critical resources at a la;.-. . in the enforcement
process.
In addition, it is imperative that copies of notice letters
be sent to Headquarters for purposes of tracking and responding
to information requests. Along with other reporting require-
ments, eacr. Region will be responsible for sending copies of
notice letters quarterly.
RELEASE OF SITE-SPECIFIC ISTORMATTCN'
It is important to conduct PRP searches, issue notice
letters and collect information as soon as possible, not only
to expedite the RI/FS process, but to ensure that certain
site-specific information is available for use by PRPs. Avail-
ability of tnis information to PRPs will help PRPs organize
and negotiate among themselves.
As stated in the Interim CERCLA Settlement Policy, EPA
will release certain site-specific information to PRPs in
order to facilitate settlement discussions. This information
includes:
• Identity of notice letter recipients;
8 Volume and nature of wastes to the extent identified
as sent to the site {"waste-in" list)? and
• Ranking by volume of material sent to the site, if
availaDle
There »rm f however, certain limitations with regard to the
•information outlined above. For example, summary conclusions
about the volum* and nature of waste sent to a site, including
a volumetric ranking should be provided to the extent .that
such information exists. Volumetric rankings should be developed
when the Region determines that the rankings will be of signifi-
cant benefit to the Agency and responsible parties in facili-
tating settlement or cleanup. Moreover, due to their preliminary
and summary nature, EPA will not expend resources to explain
or defend any list or ranking. Lists or rankings released to
PRPs and others should always contain appropriate disclaimers.
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-4-
OSIVEf? * 9834.2
T.k.e settlement policy states that release of information
to PR?s should generally ^e conditioned on a reciprocal release
cf information by F?.?s. T.-.e reciprocal release pslicy does r.c:
apply to the release to ??.rs of the nares of other notice letter
recipients on a site, or to waste-in lists and volunetric rank-
inss. Release of any additional information, however, should
be conditioned on a reciprocal release of 'information by PRPs.
In determining the type of. additional information to be released,
Regions should consider the possible impact on any potential
litigation.
Again, it is important to conduct PRP searches, issue
notice letters, and collect information as soon as possible so
that the information discussed here is available for use.
Waste-in lists and volumetric rankings should be developed as
soon as possible after coff.pletvart ci ?W searches. This infor-
mation should b* provided with notice letters, if available.
Such information nay also be released in advance of notice
letters upon request when the Region determines it will facili-
tate settlement.
The nanes cf notice letter recipients are available to the
public in respor.se to requests under the Freedom of Informa-
tion Act (FOIA) (See "Releasing Identities of Potentially
Responsible Parties in Response to FOIA Requests," January 26,
1984;. The nanes nay also be released at the Agency's initia-
tive without a fOIA request. Now, to the extent the information
exists, waste-i,i lists and volumetric rankings *ill also be
available to the public un6«r T02A and at the Agency'* discre-
tion. Thus, requests for information on notice letter
recipients and for waste-in lists or volunetric rankings, should
be handled consistently whether the requests ar* made by PRPs
or th« general public.
For further inforftEtior. OT* topics discussed in this meno,
please contact Linda SoJtherland at FTS 382-2035.
Addressees:
Director, Office of Emergency and R«w«dial Response
Region II
Director, Air and Haste Management Division
Reg-ion* III, IV, VI, VII, VIII
Director, Waste Management Division
Regions I, V
Director, Toxics and Waste Division
Region IX
Director, Air and Waste Division
Region X
Regional Counsels, Rer;ior:s I-X-
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY n=-^n 0 «
WASHINGTON, o.c.r-"- " '
NOV 21
orriei or ts
AND COMPLIAMCI
MOMTO«rNG
MEMORANDUM
SUBJECT: Procedural Guidance on Treatment of Insurers Under
CERCLA
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators, I-X
Regional Counsels, 1-X
INTRODUCTION
Defendants in EPA's CERCLA enforcement cases have begun
to look to their insurance carriers for both legal representation
and indemnification. It is expected that che number of
collateral actions involving the insurance carriers of CERCLA
defendants will continue to grow, particularly in CERCLA cases
involving multiple parties. _[/
The purpose of this guidance is to provide EPA Regional
offices with the appropriate procedures to follow in issuing
notice letters, developing referrals, and tracking CERCLA
enforcement cases chat nay include insurers as third party
defendants. A separate reference notebook and memorandum
of lav arc being prepared by OECM and the Department of Justice
to supplement this guidance. The memorandum of law will summarize
the recent judicial decisions which have interpreted the
applicability and coverage of insurance policies in hazardous
waste cases*
I/ Most insurance policies are effective on an annual basis
~ and parties commonly changed carriers during the disposal
period, or had several policies in effect at the same time.
Therefore, large CERCLA lawsuits could involve multiple insurance
carriers and multiple policy periods.
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- 2 -
INSURANCE INFORMATION REQUESTS - IDENTIFICATION OF POTENTIAL
DEFENDANTS'
EPA Regional offices are responsible for preparing and
issuing CERCLA notice letters to potentially responsible
parties. These notice letters generally include requests for
information under RCRA $3007(a)(3) and CERCLA I104(e)(4). All
information requests should include a request for copies of
insurance policies in force during the FRP's association with
the site. The requests should solicit information regarding
insurance policies that are currently in effect as veil as
those effective during the period of activity in question. £/
The information request responses from potentially
responsible parties should be reviewed by the Regional Counsel's
Office to determine the types of policies carried by the party
and the extent of coverage under each policy-. Insurance carriers
determined to have exposure should be notified at the sane time
we notify the insured PRP.
REFERRALS TO THE DEPARTMENT OF JUSTICE
The Department of Justice attempts to ascertain the
existence of insurance coverage and, where appropriate,Ho
assert licigacion theories which would enable the United States
to proceed against insurance carriers in hazardous waste cases,
or to involve them in settlement negotiations. The Department
of Justice has requested that EPA provide insurance information
as a routine portion of our case development report and reterral
package.
All referrals of hazardous waste cases to the Department of
Justice should include a brief summary of the insurance coverage
of potential defendants. This information is particularly
important for actions involving bankrupt or potentially Insolvent
parties.
21 See Memorandum "Procedures for Issuing Notice Letters"
~ Trom Gene A. Lucero, Director EPA Office of Waste Programs
Enforcement, to Directors, Waste Management Divisions Regions I-
X; Directors. Environmental Services Divisions Regions 1-X;
Regional Counsels, Regions I-X. (October 12, 1964). Pages 4-5,
and 24-25 discuss information requests regarding the insurance
policies of potentially responsible parties.
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- 3 -
THE INSURANCE POLICY - DETERMINING THE SCOPE OF THE COVERAGE
The standard liability insurance policy is broken down
into three sections: 1) declarations; 2) statement of general
liability; and 3) che standard coverage section. The declara-
tions section contains general statements of the intent of
the parties and the name of the insurer and the insured. The
statement of general liability contains the definitions
applicable to che policy and the provisions common to the
various standard coverage sections. The standard coverage
sections constitute the bulk of the policy and contain the
insuring agreement and exclusions, including Any pollution
exclusion provisions. The standard coverage section usually
includes the insurer's promise to pay on behalf of che insured
and the insurer's duty to settle or defend claims against the
insured alleging bodily injury or property damage covered
under the policy. $/
The interpretation of the insurance policy should begin
with a review of the standard coverage section to determine the
theories upon which EPA can proceed. Most insurance policies
only obligate che insurance carrier to defend against any suit
seeking damages or to pay on behalf of the insured such damages
which are covered' under the terns of che policy.
Thus, ic is important to examine che scope of coverage of
the insurance policy before referring an action to che Department
of Justice which aay have insurance aspects. Claims for injunctive
or equicable relief are usually not included within che coverage
of. che insurance policy, and che referral for such relief need
not include che insurer as a potential defendant. It may
nevertheless be prudent Co notify involved carriers of such
a claim.
Where any CERCLA 1107 damage claim is included as a basis
for relief, the insurer may be idencified as a potential
defendant-. Claims for punitive damages aay also be covered
under che policy and che Regions should include insurers as
3/ The insurance carrier has a duty to defend the insured
~ even, if the claims are groundless, false or fraudulent.
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- 4 -
defendants where punitive damages are sought. 4/ The referral
package prepared by the Region should also include a discussion
of the types of policies which were issued to the responsible
party.
TYPES OF INSURANCE POLICIES
There are two types of insurance policies. The first is
the traditional casualty insurance contract known AS the
Commercial General Liability Policy (CCL). The standard CGL
policy covera accidental or sudden bodily injury and property
damage. The second type of policy it the "claims-made" pollution
liability policy or Environmental Impairment Liability (EIL)
policy. The EIL policy covers the insured for liability for
bodily injury and property damage resulting from gradual pollu-
tion, or clean up costs incurred by the insured. EIL pollution
liability policies enable owners and operators of hazardous
waste treatment, storage, and disposal facilities to comply
with RCRA's financial responsibility requirements.
CCL Policies
There are four separate areas of coverage available under
the CGL policies which may be applicable to CERCLA actions.
The first is the premises and operations hazard policy. This
policy provides coverage for liabilities resulting from a
condition on the insured'a premises or from the insured's
operations in progress whether on or away from the insured's
premises. This type of policy would cover the owner or operator
of a facility, whether the hazardous waste facility was active
or inactive, as long aa the'covered liability resulted in
a condition which originated during coverage.
The second area of coverage under the CGL policy is the
products and completed operations policy. This policy provides
coverage for liabilities arising after products have left .the
physical possession of the insured and after the work performed
has been completed or abandoned. This type of policy nay
cover the generator of hazardous substances if the waste can
be characterized as a final product.
4/ Most policies are silent regarding coverage for punitive
"~ damages. Some states have allowed claims by the insured
for punitive damages paid to the federal government.
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OUTLIHE OF INSURANCE ISSUES
TABLE OF CONTENTS
INTRODUCTION Page
I. Types of Policies Iisutd 3
General Introduction 3
A. The Comprehensive General Liability (CGL) 5
Policy
B. Development of che Pollution Exclusion 7
C. The Environmental Impairment Liability 9
(EIL) Policy (appearing in che late
1970'»)
D. The Insurance Services Office 9
(ISO) Policy
II. Judicial Construction of CGI and
CGL/Pollution Exclusion Policies
A. Construction of CGL Policies Generally 10
1. ".Accidents" under pre-1966 policies. It
2. Definition of the "occurrence" under 12
post-1966 policies. (Discussion of
the "exposure," "manifestation," and
"triple-trigger" theories for deter-
mining when an occurrence has taken
place.
3. Apportionment of liability among 17
insurers and insureds.
4. The scope of "property damage" 17
coverage. (Discussion of the extent
to which remedial activity is covered.)
S. Statute of limitation questions. 18
6. Defenses available to the insurer. 19
B. Construction of OGL/Pollution Exclusion 20
Policies
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INTRODUCTION (continued) Page
III. Construction of EIL and ISO Policies 24
A. The EIL Policy 24
B. Th« ISO Policy 25
IV. Statutory Insurance Requirements 25
A. RCRA Financial Responsibility 25
Requirements
B. CERCLA Financial Responsibility 29
Requirements
V. Potential Claims Against Insurers 31
A. Claims Under Federal Lav 31
1. RCRA enforcement claims 31
2. CERCLA enforcement claims 32
B. Assigned or Subrogaced Claims of the Insured: 36
Assignment After Judgment, Assignment Before
Judgment. Assignment of Claims for Breach of
Duties, and Assignments After Bankruptcy
C. Policy Provisions Allowing Direct Action 46
D. Common Lav Denial of Direct Action 47
E. State Direct Action Statutes 48
F. Other Procedures for Litigation Betveen the 49
insurer and the United States
1. Intervention by the insurer in an action 49
by the United State* against the insured
2. Declaratory judgment suits betveen the 50
insurer and the insured — including
a discussion of vhether the United States'
may be estopped from bringing a subsequent
direct action claim by opposing insurer
intervention In its-enforcement action,
or by declining to participate in a
declaratory relief action betveen the
insurer and'the insured.
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INTRODUCTION
Sine* ch« passage of the Comprehensive Environmental
L/
Response, Compensation, and Liability Ace (CERCLA7 in 1980,
the Environmental Protection Agency (EPA) and the Department
of Justice (DOJ) have initiated more than 100 enforcement
actions against the owners and operators of hazardous waste
facilities, generators who arranged for the disposal of
hazardous substances, and transporters who handled hazardous
substances. Many of these cases, some of which were built
upon prior claims under the Resource Conservation and Recovery
II
Act (RCRA),~ involve clains for millions of dollars of response
costs. Defendants in these cases generally have sought legal
representation and indemnification from their insurance
carriers. It is expected that the number of collateral
actions involving the insurance carriers of RCRA and CERCLA
defendants will continue to grow, particularly in cases.
I/
involving multiple parties.
The first purpose of this handbook is to provide a basic
understanding of insurance lav and potential claims for relief
against insurers which vill allow EPA and DOJ enforcement
I/ 42 U.S.C. II 9601-9656.
y 42 U.S.C. IS 6901, £!!•£• tto>c commonly 42 U.S.C. I 6973.
3/ Most insurance policies are effective on an annual
~ basis, and generators commonly changed carriers
during the disposal period or had several policies in
effect at the same time. Therefore, large RCRA/CERCLA
lawsuits can involve multiple insurance carriers and
multiple policy periods.
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lawyers to litigate chcse claims, as vtll as respond to
defenses raised by insurance carriers.
The second purpose of this handbook is co offer an
understanding of the insurance requirements of RCRA and
CERCLA. Under the financial responsibility regulations
promulgated pursuant to Section 3004(6) of RCRA, each
owner or operator of a hazardous waste management facility
must aaintaln liability insurance against both sudden
y
and accidental occurrences. An owner or operator of a
hazardous waste facility nay also satisfy post-closure
care financial assurance requireaents by obtaining post-
closure insurance."" The handbook will review these regu-
latory requirements and their enforcement through compliance
actions, and will also briefly address Che insurance program
provided for in Section 108 of CERCLA, which has yet to be
implemented.
Finally, the handbook is intended to.serve as a basic
reference resource. Sons of the best articles and notes on
insurance issues are included as appendices and, in the
ease of some issues, are referenced in lieu of primary
discussion. In addition, an alphabetical compendium of
selected cases appears at the back of the handbook.
4/ 40 C.F.R. 264.147.
S/ 40 C.F.R. 264.l43(e)
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I. Types of Pelieiea Issued
General Introduction
The standard liability insurance policy is broken down
into three sections: (1) declarations; (2) Che statement
of general liability; and (3). the standard coverage sections,
The declarations section contains general statements of the
intent of the parties and the naaes of the insurer and
the insured. The statement of general liability contains
the definitions applicable to the policy and the provisions
common to the various standard coverage sections. The
standard coverage sections constitute the bulk of the
policy and contain the insuring agreement and exclusions,
6/
including any pollution exclusion provisions. The standard
coverage section usually includes che insurer's precise
co pay on behalf of che Insured and che insurer's duty
Co scccle or defend claims againsc Che insured alleging
. !/
bodily injury or property damage covered under che policy.
The interpretation of che insurance policy should begin
with a review of the standard coverage section. Most
insurance policies only obligate the insurance carrier to
6/ See pp. 20-24 for • detailed discussion of the pollution
~ exclusion.
7/ The insurance carrier has a ducy co defend che insured
~ ev«n if che claims are groundless, false or fraudulent.
See Jackson Tovnship v. Hartford Ace. & Idea. Co.. 186
ITU. Super. '156, Uo (1982} unciudee in the compendium).
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dtftnd against any iuic iceking "damages" or to pay on behalf
of cht insured "damages" covttcd under the terns of the
policy. Thus, ic is important co examine the scope of
coverage of che insurance policy in reviewing any potential
referral or suit against a carrier.
Claias for injunctive or other equitable relief usually
are not included expressly within the coverage of the insurance
policy. Nonetheless, several courts have sustained claims
to recover costs of abateaent or response incurred by the
insured. See discussion below at pp. 17-18. CERCLA Section
107 daaages and response cost claims .generally will be
covered, or a cognizable claia nay be made. Claims for
penalties under CERCIA Section 106(b) or punitive damages
under CERCLA Section 107(c)(3) may also be covered under
the policy, although sone insurance agreements specifically
exclude coverage for punitive damages." The referral
package prepared by EPA should include, if information is
available, a discussion of the policies which were issued
to the responsible party and copies of the policies.
There are two basic types of insurance policy. The
first is eh* traditional casualty insurance contract known
aa the Comprehensive General Liability Policy (CCL). The
standard CCL policy covers accidental or sudden bodily injury
and property damage from an "accident," or "occurrence," during
8/ Most policies are silent regarding coverage for punitive
~ daaages. Some states have allowed claims by the insured
for punitive daaages paid to the federal government.
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Che policy period, regardless of when che claim is actually
Bade. Since about 1970, CGL policies generally have attrapced
to exclude coverage of any hazardous substance injuries
that were not "sudden and accidental" in nature and contain
a "pollution exclusion" to that effect. These clauses
have not succeeded in excluding coverage in a broad range
of situations involving hazardous waste "damage,"
The second type of policy is the "claims-made" pollution
liability, or Environmental Impairment Liability (EIL)
policy. The EIL policy covers the insured*s liability for
bodily injury and property damage resulting from gradual
pollution or cleanup costs incurred. It is called a "claims-
made" policy because it covers only claims made during the
tern of the policy. The EIL policy it analogous to health
or life insurance, where che claimant is not required to
make a shoving of accidental injury. One class of claims-
made pollution*liability policies is specifically designed
to enable owners and operators of hazardous waste treatment
storage and disposal facilities to qomply with RCRA's finan-
cial responsibility requirements. For brief descriptions
of the various types of policies which have been issued
3J
and key typical clauses, see Appendix A.
A. The Comprehensive •;?:.-• si Liability (CCL) Policy
There are three types of coverage available under CCL
policies. The first is premises and operations hazard
97 T. Smith, Jr., "Environmental Damage Insurance -- A
Priner," reported at VII Chen. & Rad. Uaate Lit.
Rptr. 435"(1983).
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coverage. This coverage is for liabilities resulting froa
A condition on che insured'* premises or from the insured's
operations in progress, whether on or away from che insured'*
premise*. This type of policy would cover che owner or
12/
operacpr of a facility, whether che hazardous wasce facilicy
was accive or inactive. as long as che disposal, «corag* or
treatment was acill in progress.
The second and third areas of CCL coverage are produce
hazard coverage and completed operacions hazard coverage.
These two, originally combined, are now separate and
discinct. Product hazard coverage covers injuries arising
out of product use, and is probably irrelevant to virtually
all CERCLA claims, unless the court can be persuaded to
view a pollutant as a product. In addition, the event of
release probably must take place after relinquishmenc of
control by the generator, and away from che generator's
premises. Completed operations coverage nay afford a
somewhat broader basis for recovery, but is nontheless
subject to limitations which would require appropriate
facts and careful pleading. See Appendix G, pp. 562-563
for a summary discussion of key facts of both product hazard
and completed operations coverage.
The standard coverage section of a general liability
policy sets out the scope of the insurance agreement and
the exclusion* applicable to claims made by the insured.
Uy CERCLA Section 107(a), 42 U.S.C. 9607(a).
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The exclusions to the scope of the insurance coverage muse
be clearly and precisely drafted"!"" The exclusion which
insurers invoke against-claims for damages created by
hazardous wastes is the pollution exclusion. The standard
pollution exclusion reads:
"This insurance does not apply ... to bodily
injury or property daaace arising out of the
discharge, dispersal, release or escape of
smoke, vapors, soot, fumes, acids, alkalis,
toxic chemicals. liquids or ftases, vaste
materials, or ocher irritants, contaminants
or pollutants into or upon land, the atmosphere
or any water course or body of water; but this
exclusion does not apply if such discharge,
release or escape is sudden and accidental."
(Emphasis added.)
The historical development of this exclusion to the standard
liability policy provides a key to understanding recent
interpretations of the applicability of the pollution
exclusion to hazardous vaste cases.
B. Development of the Pollution Exclusion
The first standard,form for general liability insurance
policies was developed in 1940. The model policy provision
was drafted to include liability for all claims made by
che insured that were "caused by accident." This provision
vas widely interpreted by che courts co include coverage
for common law nuisance claims for environmental damage if
11 / Because che insurer selects che language for the policy.
the exclusions are generally interpreced in favor of che
insured. An exclusion muse be drafted with clear and exact
language co be given effect by che courts. See e.g. Allstate
Ins. Co. v.-Slock Oil Co.. 426 N.Y.S. Zd 603"ftT.YT App. i960)
(induced in the Compendium).
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• 8 •
cht pollutant* were suddenly and Accidentally discharged?"
In 1966, the Insurance Racing Board developed a new
aodel contract which covered claim* "caused by occurrence"
rather than claims "caused by accident." The Board defined
occurrence bro*dly co include "an accident/' including
continuous or repeated exposure to conditions, which results,
during the policy period, "in bodily injury or property
daaage neither expected or intended froa ehe standpoint of
the insured." The new language required a finding that the
damages were not foreseeable or intended. However, the
courts continued to hold insurance companies liable for
environmental daaages even where the pollution was foreseeable
I!/
it the damages were accidental. in 1973, comprehensive
general liability policies were revised to include the
pollution exclusion clause. See p. 7 for the text of
the exclusion. The courts which have interpreted the
pollution exclusion clause have agreed on three relevant
points: (1) the insurer has the burden of proving noncoverage;
(2) the exclusion applies to the Intentional polluter; and
• ""
(3) the exclusion does not apply to entitle* which neither
expect nor intend their conduct to result in bodily injury
127 See Appendix C, Hourihan, "Insurance Coverage for Environ-
mental Daaage Claims" IS Forun 551, 552 (1980).
IS/ Grand River Lime Co. v. Ohio Casualty Ins. Co.. 32 Ohio
App. Zd. 178, 289 N.E. 2d 360 (
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or property damage. Sec discussion at pp. 20-24.
C. The Environmental Impairment Liability (EIL) Policy
Regulations promulgated pursuant to. RCRA (see notes
4 and 5 > have prompted several insurance carriers to offer
first party insurance coverage -- that is, coverage for
injuries* caused by the insured, obtained by the insured.
The* most common of these "claims-made" policies is the
EIL policy, which generally provides insurance coverage for
personal, injury and property damage only from gradual
pollution, but not that which is sudden and accidental.
Off-sice cleanup costs, including those incurred to avert
a loss, arc typically covered; on- site cleanup costs are
not. A. Lao typically excluded from EIL policies -are coverage
of oil and gas drilling, liability arising from nuclear
fuel, damage to property owned or occupied by the insured,
fines or- penalties, punitive damages, costs of cleaning up
pre-exiajcing conditions at any sice owned or leased by
the insured, and costs of maintenance or routine cleanup.
D. Insurance Services Office (ISO) Policy
Another type of "claims-made" policy is the ISO
pollution liability policy — also developed in response
*
to RCRA regulatory insurance requirements. ISO policies
]±l For a detailed history of che developaent of the pollution
exclusion, see Appendix D, S. Hurvitz & D. Kohane, "The
Love Canal - Insurance Coverage for Environmental Accidents,"
Insurance Counsel J., July 1983, p. 378.
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provide indemnification and defense coverage for pollution-
caused bodily injury and property damage and reimbursement
coverage for pollution cleanupa iapoaed by law or voluntarily
assumed with the content of 'the iniured. Inaurance coverage
under 'an ISO policy is alao extended to aitea uaed by the
insured for storage or treatnent but which are operated
by others. Costs of defense are provided apart froa
the liaits of liability. The policy excludes from coverage
daaages which are expected or intended by the insured,
costs of cleanup for sites owned, operated or used by
the insured, liability froa abandoned sices, or liability
arising from the intentional violation of statutes or
t
regulations, but does cover both gradual and sudden and
accidental daaages and injuries.
Despite an increase in "claims-Bade" environmental
insurance policies, coverage for.pollution-related
damages under an E1L or ISO policy is still rare. It is
ouch more likely Chat a potential EPA hazardous waste
enforcement aeeion will involve a general liability
policy (CGL).
III. Judicial Construction of'CCL and CGI/Pollution
Exclusion policies'
A. Construction of CCL Policies Generally
Decisions generally consenting CGI policies have focused
on several issues: whether a covered "accident" or "occurrence"
has taken place, whether damage co che affecced "property"
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is covered, what statute of limitations should be applied
and in what Banner, what defenses art available to insurers,
and how should liabiliC7 be apportioned aaong insurers and
insured*. A discussion of these issues will be followed by
a atparatt discussion of pollution exclusion clause construc-
tion.
1. "Accidents" under pre-1966 policies,
CGL policies written prior to 1966 insured against damage
or injury "caused by accident." Early dtcisions considering
when events giving rist to an injury were covered focused on
whether or not tht event was "... [a]n event that takts
place without one's foresight or expectations; an undesigned
sudden and unexpected event, chance, contingency." United
States Fidelity & Guaranty Co. v. Briscoe. 205 Okla. 618,
239 P.2d 754, 757 (1951) (included in the Coopendiua),
quoting from Webster's International Dictionary. Thus,
cases addressing injuries arising out of consequences of the
insured'• business which were typical and obvious tended to
deny coverage while eases involving unintended consequences
(even those arising out of failure to foresee that which
should have been seen) tended to affirm coverage. Two articles
address these issues. Appendix E, J. Coulka, "The Pollution
Exclusion," VI Chen. & Rad. Waste Lit. Rptr. 745, 745-748.
(1983) contains a succinct introduction to these cases.
Appendix F, C. Mitchell and J. Tesoriero, "When Does the
Occurrence Exist Under the General Cooaercial Liability
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Policy?," VII Chen. & Rad. Waste Lit. Rpcr. 657 (1984),
provides an additional detailed background on the history
and development of both the "accident" and "occurrence"
clauses.
2. "Occurrences" under post-1966 policies.
In 1966, most CCL policies began to insure against
damages and injuries arising out of an "occurrence" during
the policy period — leaving open the central question
of when an "occurrence" has taken place and the related
issue of whether sequential or multiple occurrences have
taken place. The former question is critical in evaluating
which policy or policies may provide coverage and occasionally
whether the statute of limitation may have run on the claim.
The latter question is critical to these issues, to what
policy limits or multiples of limits may apply, and to issues
of apportionment among carriers."""
CGL policies generally define an occurrence as "an
accident, including continuoua or repeated exposure to
conditions, which results in bodily injury or property
damage neither expected nor intended from the standpoint
If insurance coverage exists for the entire relevant
period of time, but the plaintiff cannot establish when
the damage began or how it was apportioned during the period.
of time, courts will normally only require the plaintiff to
prove that damages occurred, and leave to the insurance
companies the burden of allocating the damages among them-
selves. See Appendix G, Hourihan, "Insurance Coverage for
Environmental Damage Claims," 15 Forum 551, 559 (1981).
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of chc Injured." The theories upon which courts have
determined whether and when a covered "occurrrence" has
happened arc several, having evolved co aeet generic fact
patterns. A discussion of chose theories follows. See
generally Appendix F and Appendix 0, Charles Maher,
"Ashesto• Extravaganza," 5 Calif. Lawyer 60, 62-63 (June
1985).
In ainple property damage cases not involving slow
accumulation of damage, the general rule is that there
is no "occurrence" until the actual harm for which relief
is aougrie manifests itself. National Aviation Underwriters.
Inc.-v. Idaho Aviation Center. Inc.. 93 Idaho 668, 471
• • *
P.2d 56 (1970). See also Annot.. 57 A.L.R. 2d 1385 (1958).
This rul,« is generally known as the manifestation theory.
On che other hand, in cases where damages arc sought
for sickness or disease resulting from long term exposure
eo toxic substances, courts have found that actual injury
occurr*^ during the policy period in which exposure alone
oceurre>d. Insurance Company of Horth America v. Forty-
EUht' Insulations.. Inc.. 451 F.Supp. 1230 (E.D. Kich. 1978),
aff'd 633 F.2d 1212 (6ch Cir. 1990). This rule is generally
ctlletd Che exposure theory. .In addition, in contrast to
ordinar-y property damage eases where the manifestation
theory applies, in property damage cases where damages
slowly accumulate, courts have generally applied the
expotur-c theory in determining insurance coverage. So
long am there is any tangible daaage (even if minute)
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resulting from exposure, Che courcs have allowed coverage
froa that time, although the damage Bay not aanifesc itself
until ouch later. See, e.g.. Chaapion International Core.
v. Continental Casualty Co.. 546 F.2d 502 (2d cir. 1976),
cert" denied, 434 U.S. 819 (1977); Porter v. American Optical
Corp.. 641 F. 2d 1128 (5th Cir. 1981); Union Carbide Corp. v.
Travelers Indemnity Co.. 399 F.Supp. 12 (U.D._Pa. 1975); and
Cruol Construction Co. v. Insurance Co. of North Aaerica.
11 Wash. App. 632 524 P.2d 427 (Wash. Ct. App. 1974).
Thus., it appears that application of the exposure theory
is appropriate in the context of CtfcCLA hazardous waste liti-
gation, since tangible injury and damage to the environoent
can occur soon after exposure to hazardous wastes, although
damage may not manifest itself until auch later. At least on
court has held that where a landfill leaches toxic vast* into
groundvater over a nuabcr of years and harm results, the
1 o/
exposure theory should be applied. Application of the
exposure theory in the CERCLA context means that coverage
would be triggered under the insurance policies from the
time when the environment vas first exposed to the hazardous
waste. Presumably, under Che exposure theory, all policies
from the time of disposal forward would be implicated% so
long as some tangible damage to the environment could
be shown to have occurred at the tiae of exposure and to
have continued thereafter.
Jackson. Township v.. American Homes Assurance Co., Docket
~~ 1-29236-80 (N.J7 Super.; cunreportec), citeo in Jacjcson
Township v. Hartford Ace. & Indemnity Co.. 186 N.J. Super. 150,
165-166 (1982) (included in the Compendium).
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Notably, Application of the txposurc ch*ory to trigger
insurance coverage does not necessarily rule out application
of the manifestation theory to trigger subsequent coverage.
In some cases, in order that*the purpose of the policy not
be undercut and in order to protect the reasonable expectations
of the insured, the insurance coverage during the period of
manifestation of the injury or damage is alao triggered.
See Kcene Corporation v. Insurance Company of Rorth America.
667 F.2d 1034, 1045 (D.C. Cir. 1981). This approach is
commonly known as the "trlpple-trigger" or "continuous injury".
theory.
The application of the exposure, manifestation, and
triple-trigger theories has frequently risen in the analogous
context of the asbestos-related disease cases. In those
cases dealing vith a slowly progressive disease in which
tissue daaage occurs shortly after initial inhalation
(exposure), cht courts have generally favored the more
generous exposure and triple-trigger theories. See. Porter
v. American Optical Corp.. supra; Insurance Co. of North
America v. Forty-Eight Insulations. Inc.. supra; and Kcene
Corp. v. Insurance Company of North America, supra.
(applying boch the exposure and manifestation theories
co trigger maximum coverage under the policies.)* One district
court, however, has adopced solely the manifestation theory
in an aabeseos related disease case. See Eaale-Picher
Industries v. .Liberty Mutual Insurance Co., 523 F.Supp.
110 (D. Mass. 1981).
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Therefore, although only one unrcporctd state trial
court dtcifion has addressed chis issue in che hazardous
vasta context, there it strong analogous authority to
support application of the more expansive exposure theory
to trigger insurance coverage in waste cases. Moreover.
there is sone analogous authority to support application
of both the manifestation and exposure theories to trigger
insurance coverage. Consequently, once a pollution incident
has been determined to constitute an "occurrence" not excluded
from coverage under a pollution exclusion clause, there
should be little problca in triggering coverage under the
maximum number of policies by application of these theories.
Finally, the question must be answered of how many
"occurrences" have taken place, where the injury continues
over a period of time and may manifest itself in distinct
and separate kinds of damages. Courts determine the fre-
quency of the "occurrences," for purposes of applying a
policy's per occurrence limit or deductible provisions, by
i?/
applying one of several tests. Tor a discussion of each
of these tests, see tenerally Appendix C, pp. 559 et. se£.
/ Centrally, these tests include: the "affect test"
" (looking to eh* vantage of the injured party and
commonly finding more than one "occurrence"); the
"causation test" (widely accepted view baaed en examination
of cause); the "time and space test" (focusing on proximity
of causative factors in time and space), the hoperative
hazard test" (examining the number of distinct causative
acts); and the "average person test" (which is what it
seems -- the favorite of judges not enamored with more
abstract, rationalized standards).
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3. Apportionment of liability among insurers and insured*.
Determinations concerning the number and duration of
"occurrences" can have a substantial impact upon the extent
to which multiple carriers o'f a single or many insured parties
•ay b« liable « a problem greatly compounded by th« technical
complexity and large numbers of defendants typical in hazardous
waste litigation. For a thorough treatment of the theories
for determining when "occurrences" take place and the conse-
quential application of those theories to apportionment
problems, see Appendix H, Note. "The Applicability of General
Liability Insurance to Hazardous Uaste Disposal," 57 So. Cal.
L. Rev. 745 (1984).
4. The scope of "property damage" coverage.
Courts have become progressively more willing to extend
covered "property damage" to costs of voluntary and compulsory
remediation — especially where the insured is responding to
conditions which may result in further damage to property,
health or the environment, or where a governmental entity
may incur costs and seek eventual reimbursement. See Lansco.
Inc. v. Dept. of Environmental Protection. 138 N.J. Super.
275 (1975) (included in the Compendium) (coverage of on-site
•pill remediation required by state law); US Aviex Co. v.
Travelers Ins. Co.. 125 Mich. App. 579 (1983) (included in
•
the Compendium) (coverage of investigative and remedial
costs for state-mandated groundwater cleanup, founded upon
holding that groundwater was not property of the insured);
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and Richl v. Travelers Ins. Co.. Civ. No. 83-0085 (W.D.
Pa. Aug. 7, 1984), VIII Chea. & Rad. Waste Lie. Rpcr. «39
(included in chc Compendium) (coverage of CERCLA potentially
reponsible party's abatement'costs). For a aore detailed
discussion of this issue, see Appendix I, M. Rodburg and
R. Chesler of Lowenatein, Sandier, Brochin, Kohl, Fisher,
BoyIan & Meaner, "Beyond the Pollution Exclusion: [etc.],
(1984), pp. 364-369; and Appendix J. K. Rosenbaum,
"Insurance, Hazardous Waste, and the Courts: Unforeseen
Injuries, Unforeseen Law," 13 ELR 10204, 10205-10207
(July 1983).
5. Statute of limitation questions.
In state common law suits for injuries or damage, the
court's choice among exposure, manifestation, and triple-
trigger theories of occurrence may have a substantial
relationship co the running of the applicable statute of
limitations.. Fortunately, this choice of theories to
determine when injury or'damage "occurs" within the meaning
of a comprehensive general liability policy would not
determine when the statute of limitations should commence
187
running under CE&CLA. Otherwise, the date that injury
18./ Under Section 112(d) of CERCLA. 42 U.S.C. 9612(d):
No claim may be .presented, nor may an
action be commenced for damages under
this title, unless that claim is
presented or action commenced within
three years from the date of discovery
of the loss or the date or enactment
of this Act, whichever is later . . .
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or dusage is deemed to occur for purposes of statutes of
limitation* is generally the date of manifestation. See,
e.g.. United States v. Kubrick. 446 U.S. Ill, 123-26
(1979); Urie v. Thompson. 337 U.S. 163, 170-71 (1949).
6". Defenses available to the insurer.
VJhere an injured person may sue Che insurer directly,
before or alter judgment against the insured, that suit is
generally subject to all the defenses the insurance company
*'
has against the insured, including the defense that the
insurance company has not received notice of the underlying
lavsuit *s per the policy terms and deadlines, and the
defense chat the insured has not cooperated with the
insurance company. Generally, judgment creditors stand in
the shoes of the insured and have rights no greater and no
less than the insurer's rights would be if it had paid the
judgment and then sued its insurance company to recover the
amount paid. Creer v. Zurich Insurance Co.. 441 S.U. 2d
15,30 (Mo. 1969); accord HcSeal v. Manchester Insurance and
Indeanitiitr Co.. 540 S.W. 2d 113, 119 (Mo. Ct.App. 1976)
(rights of the injured person are derivative and can rise
no higher than chose of the insured). See also Appendix L,
Appleaan, Insurance Lav as Practice 14 4813-4817 (hereafter
"Appl«a«n").
Probleas with notice, etc., may present considerable
difficulties during aeteapta by the United States to recover
for CERCLA costs against insurance companies.
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B. Conacruecion ef CCL/Pollution Exclusion
In response to Che judicial interpretation of the new
"occurrence" language in CGL policies che insurance industry
developed a specific exclusion Co its policies which was
•cane.to clarify insurance coverage for claims for pollution
daaage. See pp. 7-9 for exclusion language and history.
This exclusion, referred to as the "pollution exclusion,"
has now been incorporated into the printed provisions
of aost commercial insurance forms. It was intended by
the Insurance Rating Board not to restrict coverage, but
merely to clarify coverage by the use of the new language.
The pollution exclusion disallows claims for bodily injury
or property damage due to a release of toxic chemicals, waste
materials, pollutants or contaminants into the environment
unless the release is "sudden and accidental." There is a
split of authority regarding the meaning of these terms.
Several courts have held that they are ambiguous, and have
construed the clause broadly in favor of the insured. In
these cases, coverage of the polluter has been upheld. In
contrast, SOB* recent decisions have held that the exclusion
may apply to eh* knowing, frequent hazardous waste polluter,
and that there is no ambiguity in the "sudden and accidental"
clause in such cases.
Long-standing principles of insurance contract construc-
tion include chc requirement that to be effective, an
exclusion must be conspicuous, plain, and clear, and must
be construed strictly against the insurer and liberally in
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• 21 -
favor of tht tniurtd. Sjee, e.g.. Pepper Industries, Tne. v.
Home Insurance Co.; 134 Cal. Rptr. 904, 67 C.A.3d 1012 4th
Diet, (included in cht Compendiua). Any ambiguities muse
be resolved in favor of the insured. See, e.g^. Abbie
Uriguen Oldsaobile-Buick. Inc. v. United States Fidelity
Ins. Co.. 95 Idaho 501, 511 P.2d 783 (Idaho 1973) and note
11, supra. The courts Chat have considered the pollution
exclusion clause have almost unanimously held it to be
ambiguous, since it is fairly susceptible to two different
interpretations. As such, they generally have rt«olv*d that
ambiguity in favor of the insured, gee, e.g.. Dnion Pacific
Insurance Co. v. Van Vestlake Union. Inc.. supra; Niagara
County v. Utica Mutual Insurance Co.. 103 Misc. 2d 814, 427
N.Y.S. 2d 171 aff'd 439. R.Y.S. 2d 538 (1981) (included in
the Compendiua); and Molten. Allen & Uilliama, Inc. v. St. Paul
Fire & Marine Ins. Co.. 347 So.2d 95, 99 (Ala, 1977) (included
in the Compendiua).
The terms of the pollution exclusion clause focus on
the insured'a intent in the actual discharge of the pollutant.
The definition of "occurrence," on the other hand, focuses
on the insured's expectation or intent with regard to
causing daaage or hara. The majority of courts, taking a
broad view of insurance carrier's liability, have interpreted
the pollution exclusion clause, together with the definiton,
of "occurrence," to provide coverage except where there is
an intentional consequence, caused by a polluter who expects
or intends his conduct to cause daaage. See, e.g.. Allstate
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- 22 -
Insurance Co. v. Klock Oil Co.. supra (included in the
£oopendiua); Union Pacific Insurtnec Co. v. Van's West lake
Union. Inc.. 34 Wash. App. 208, 664 p.2d 1262 (Wash. 1983);
Jackson Township Municipal Utilities Authority v. Hartford
Aecidtnt & Indemnity Co.. 186 N.J. Super. 156, 451 A.2d
990 (N.J. Super App. Div. 1982) (included in che Compendium).
In Lansco Inc. v. Department of Environaental Protection.
supra at p. 282 (included in the Compendium), the court found
that the term "sudden," rather than meaning "brief or of short
duration," aeans "happening without previous notice or on
very brief notiet; unforeseen; unexpected', unprepared
for." The ten "accidental" aeans happening "unexpectedly
or by chance." The court therefore concluded:
. . . under the definition of "occurrence"
contained in the policy, whether the
occurrence is accidental must be viewed
from ehe standpoint of the insured and
since the oil spill was neither expected
nor intended by Lansco, it follow* that the
spill was sudden and accidental under the
exclusion clause even if caused by the
deliberate act of a third party.
Similarly, in Union Pacific Insurance Co.. supra.-
a massive gasoline leak occurred at the insured's gas
station. Approximately 80,000 gallons of gasoline leaked
out of a small hole in an underground gasoline pipe over a
period of month*. Despite the policy's requirement that
an occurrence be "sudden" or else subject to the pollution
exclusion clause, the court held that the leaking from'cht
line was not .expected nor intended, nor was the resulting
damage. Therefore, the pollution exclusion clause did not
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- 23 -
«xclud« coverage. 664 P.2d AC 1266. Set also
Insurance Co.. supra at 605., where the court staces that
the discharge or escape of gasoline could be both sudden
and accidental, even though undetected for a substantial
period, of tine, aince "sudden," as used in pollution exclusion
clauses, "need not be limited to an instantaneous happening."
A few courts have refuaed to find any ambiguity in
cne terms "sudden and accidental" where the insured knowingly
discharges a substance as a normal feature of operations,
but.. has no expectation of intent to cause daaage. In Great
Lakes Container Corp. v. Rational Union Fire Ins. Co.. 727
F.2d 30 (1st Cir. 1984) (included in the Compendium) the
court dete rained that no insurance coverage was provided to
Great Lakes in connection with a CERCLA action by the
United States against Great Lakes.and others for hazardous
waste contamination. Notably, the district court and the
First Circuit focused on two documents in deciding, whether
insurance coverage was triggered: (1) the comprehensive
general liability insurance policy; and (2) the United
States' complaint against Great Takes. Becauae the United
States' complaint alleged that Great Lakes was liable for
contamination which "has taken place as a concomitant of
its regular business activity . . . ". the First Circuit
determined that no sudden o> -accidental occurrence triggering
coverage was alleged. The court found that there is no
ambiguity in the policy "when the policy is read against
the conplaint." Thus, where insurance is or nay be a
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• 24 -
factor., care must be taken to avoid counterproductive
pleading.
The U.S. District Court for the Eastern District of
Michigan followed the Great Lakes decision in AcerJean
States Insurance Co. v. Maryland Casualty Co. 587 F. Supp.
1549 (E.D. Mich. 1984) (included in ehe Compendium). The
court held that the insurance coetpanies did not have a
duty to defend or indemnify the company because the under-
lying National Drum litigation involved the continued,
non*accidental dumping of waste at the site.
In summary, the general and widely accepted view is
that CCL policies with pollution exclusion clauses provide
coverage for pollution incidents where either the discharge
itself or the resulting damage is unexpected or unintended.
But, under the First Circuit's decision in Great Lakes
Container, supra, the discharge must be "accidental." For
example, coverage exists for pollution incidents which
involve gradual seepage or leaking which is unexpected or
unintended.
III. Cons cruet JOT of EIL and ISO Policies
A. The EIL Policy
The Environmental Impairment Liability (EIL) policy
was developed to provide coverage for liabilities not
thought to be covered by CGL policies following development
of the pollution exclusion — that is, claims for property
damage and personal injury such as bodily injury, mental
anguish, disability, death at any time — present or in
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• 25 •
cht future — caused by non-sudden, non-accidental "environ-
mental lapairaenc." These policies have not been the subject
of significant Judicial construction. For an excellent
discussion of their terns, issuance and use, ste Appendix K
\
P. Hilvy. "Environmental Impairment Liability Insurance
and Risk Assessment," The Environmental Forua, Oct. 1982,
p. 30.
B. The ISO Policy
The Insurance Services Office (ISO) policy is
generally acre limited. The EIL policy — restricting
coverage to damage* and losses arising out of a "pollution
incident," which includes only "direct" releases that result
in "injurious aaounes" of pollution — is generally believed
to cover only fortuitous damages, not those which are
"expected or intended." These policies have not been the
subject of significant judicial construction, but cheir
terns are discussed in•substantial detail and contrasted
with those of EIL policies at Appendix A, pp. 449-453.
IV. Statutory Insurance Requirements
A. tCRA Financial Responsibility Requirements
Under section 3004(6) of RCRA, EPA must establish
standards "as may be necessary or desirable" for financial
responsibility, including financial responsibility for
corrective action, applicable to owners and operators of
. * i
hazardous waste treatment, storage, and disposal facilities.
!£/ 42 O.S.C. ! 6924(a)(6).
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- 26 -
The 1984 amendment* to RCRA added in section 3004(t) that
financial responsibility may be established by any one
or a combination of the following: insurance, guarantees,
surety bonds, letters of credit, or qualification as a
£o/
self-insurer. RCRA also requires owners and operators
of facilities with interim status to certify that the
facilities are in compliance with financial responsibility
21/
requirements.
The regulations require each facility owner or operator
to certify financial assurance for both closure and post-closure
activities and to maintain liability insurance against both
sudden accidental and non-sudden accidental occurrences.
The requirements constitute Subpart H of Parts 264 and 265
of 40 C.F.R. Part 264 contains standards that apply to
interim status facilities. RCRA also provides for interim
authorization of state prograas that are substantially equiva-
lent to the federal program. Many states have some type of
financial requirements for closure and post-closure, but
they vary considerably from seat* to state.
The first step to establish financial assurance for
closure and post-closure is to estimate the cost of closure
and the annual cost of post-closure monitoring and maintenance.
207 42 U.S.C. $6924(t).
2J/ 42 U.S.C. Section 6925(e)(2)(B) and
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- 27 -
Th« aaount of financial assurance must at lease tqual chc
adjusted cost estimates. The ownet and operator may use one
or »ore of several mechanisms allowed by the regulations to
meet the requirements. As noted above, the possible mechanisms
include trust funds, surety bonds (that either guarantee pay-
ment into a 'trust fund or guarantee performance of closure
or post-closure), letters of credit, and insurance; or the
owner or operator may meet the requirement by satisfying
a financial test that provides a corporate guarantee of
22/
closure or post-closure. To meet the financial assurance
requirements, an owner or operator may use more than one
of the options, except the financial test mechanism.
On* option may be used to assure funds for all facilities
of one owner or operator. The most often used mechanism
is the financial test (about 80 percent) and the least
used is insurance (about 2.7 percent). EPA will release
the facility from the financial assurance requirements
after receiving certification that closure has been
accomplished as sec out la eh* closure plan.
Closure and post-closure insurance must satisfy a number
of requirements. The owner or operator must submit a certifi-
cate of insurance to the Regional Administrator. The .policy
must be insured for a face amount at least equal to the
227 40 C.F.R. 264.143, 265.143.
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- 28 -
closure or post-closure cost estimate, and it oust guarantee
that the insurer will pay for che closure or post-closure
activities. If the cost of closure or post-closure is
significantly greater than the face aaount of the policy,
EPA say withhold reimbursement of funds. The owner or
operator nay not terminate the policy without EPA approval,
nor «ay the insurer cancel the policy except for failure
to pay the preaiutn. Even upon failure to pay the premium,
the insurer cannot cancel the policy if within 120 days
of notice of failure, the facility is abandoned, interim
status is terminated, closure is ordered, or the owner or
13/
operator is named a debtor in a bankruptcy proceeding.
In addition to che closure and post-closure financial
assurances, the owner or operator must demonstrate financial
responsibility for claims arising from its operation for
24 /
personal injuries or property damage to third parties.
For sudden accidental occurrences, the owner or operator
•use maintain liability coverage of at least 31 million per
occurrence with an annual aggregate of at least $2 million.
for non-sudden accidental occurrences, the owner or operator
of a surface impoundment, landfill, or land treatment facility
tract maintain liability coverage of at least $3 million per
occurrence with an annual aggregate of $6 million. The owner
23/ 40 C.F.R. 264-143(eK8), 40n C.F.R. 265-143(d) (8).
24/ 40 C.F.R. 264.147, 265.147.
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- 29 -
or operator Bay deaonstrate financial responsibility by
257
having liability insurance, as specified in the regulations—
by passing a financial test for liability, or by using both
aechanisas. Variances froa these requireoents are available
if the owner or operator deaonstrates that the levels of
insurance are higher than necessary. Conversely, the Regional
Adainistrator may iapose higher levels of coverage if warranted.
The owner or operator oust continuously provide liability
coverage for a facility until final closure. Therefore, after
final closure, claims for personal injury or property damage
to third parties arc no longer covered by insurance required
by RCRA. However, upon eventual transfer of liability,
CERCLA'a Post-Closure Liability Trust Fund will-assuae "the
liability established by this section or any other law for
the owner or operator of a hazardous waste facility. . ."
B. CERCLA FINANCIAL RESPONSIBILITY REQUIREMENTS
,^77
CERCLA Section 108(a) requires that the owner or operator
of each described vessel "carrying hazardous substances
as cargo" aaintain at least $5 Billion in "evidence of
financial responsibility." Proof aay be established by
any combination of "insurance, guarantee, surety bond, or
qualification as a self*insurer." This requireaent is
essentially an expansion of preexisting spill response
257 242 C.F.R. 265.U7(a) (1) .
267 42 U.S.C. I 9607(K). The 99th Congress is considering
eliainating the entire post-closure liability transfer
scheoe.
277 42 U.S.C. S 132l(p).
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- 30 -
287
program rcquircntnts undtr the Clean Uater Ace. Insurance
policies issued under these programs should be considered
whenever « release froa a vessel is involved. CERCLA
29.7
Seccion 108(b) requires c:\«c the Admin is tracer, no
•arlier Chan December 11, 1985, promulgate financial respon-
sibility requireaents for facilities not covered under the
RCRA subtitle C prograa. Priority is to be given to "those
classes of facilities" which "present the highest level of
risk of injury." This prograa has not begun, but should
be considered as a potential source of coverage after
December 11, 1985.
Two articles discuss aany of the above issues in
greater detail. Appendix B, D. Jeraberg, "Environmental
Risk Insurance," FIC Quarterly, Winter 1984, pp. 123, e£
seq., briefly addresses the RCRA and CERCLA insurance
schemes and follows with a detailed discussion of coverage
under different policy types and examines various develop-
ments in the writing of exclusions. Appendix C, A. Light,
"The Long Tail of Liability, [etc.J," 2 Va. J. Mat. Res.
L. 179 (1982), discusses uncertainties concerning coverage
at between RCRA prograa insurance and the CERCLA post-closure
liability fund.
28/ 42 U.S.C. S 9608U).
29/ 42 U.S.C. f 9608(b).
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• 32 -
"for bad filch cither in negotiating or in filling co
negotiate the settlement of any claim." Thus, cht United
Stitts may assert state dirtec action claims or assigned
bad faith claiaa in addition'Co it* federal direct action
claia.
One likely enforcement i«*ue occurs where the insured
is in bankruptcy. RCRA Subsections 3004(t)(2) and (3)
leiv«s open the question of whether the insurance proceeds
are part of the estate in bankruptcy. Our probable position
will be that if the judgment is not satisfied fron the
estate after a period of time specified by state law,
which is likely since it is in bankruptcy, then the proceeds
are not part of the estate and the government or other
claimants say take action directly against the insurer for
the judgment.
2. CERCLA enforcement claims.
The only express rights of action against insurance
carriers under CERCLA are authorized at subsections 108(c)
and (d), 42 U.S.C. 9608(c) and (d), and which provide:
(c) Any claim authorised by section 9607
or 9611 of this title may be asserted directly
against any guarantor providing evidence of
financial responsibility as requried under
this section. In defending such a claim, the
guarantor may invoke all rights and defenses which
would be available to the owner or operator under
this subchapcer. The guarantor may also invoke
the defense that the incident was caused by the
willful misconduct of the owner or operator, but
such guarantor may not invoke any other defense
that such guarantor might have been entitled to
invoke in a proceeding brought by the owner or
operator against him.
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- 33 -
(d) Any guarantor acting in good
faith against which claims under this
Act art asserted as a guarantor shall
be liable under section 9607 of this
title or section 9612(c) of this title
only up to the monetary.limits of the
policy of insurance or indemnity contract
such guarantor has undertaken or the
guaranty of other evidence of financial
responsibility furnished under this
section, and only to the extent that
liability is not excluded by restrictive
•ndorseaent: Provided, that this subsec-
tion shall not alter the liability of any
person under section 9607 of this title.
The authorization of a direct claim against a guarantor
is limited to a "guarantor providing evidence of financial
responsibility as required under this section" (emphasis
added). Section 108 has two provisions requiring evidence
of financial responsibility. Section 108(a) requires evidence
of financial responsibility by the owner or operator of
certain vessels and offshore facilities, in accordance with
regulations promulgated by the President. Thus, once the
President or his designee promulgates such regulations, a
right of direct action is available against any insurer
issuing insurance under those regulations to a covered
307
vessel or offshore facility.
The second requirement for evidence of financial
responsibility is in Section 10S(b). Section 108(b)
30/ The Coast Guard takes the view that section 108(a) of
CEKCLA "implicitly" repeals or supersedes financial
responsibility regulations under section 311(p) of the Clean
Water Act, 33 U.S.C. 1321(p). and that under the provision
section 302(c) of CERCLA, 42 U.S.C. 9652(c), the section
[FOOTNOTE CONTINUED ON NEXT FACE]
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- 34 -
establishes a framework for imposing financial responsibility
requirements on onshort facilities, but on a prolonged
schedule. Not later than December 11, 1983, the President
is to identify the classes of facilities for which financial
responsibility requirements will be developed. The actual
requircaents are to be promulgated no earlier than December
11, 1985. When the regulations are promulgated, they are
to impose incremental financial responsibility requirements
over a period of not less than three years nor more than
six years from the date of promulgation. Thus, under the
framework established in Section 108(b), financial respon-
sibility requirements would not begin until at least December
11, 1985, and consequently, a direct claim against an
insurer under Section 108(c) could not be made until
3J./
after that date.
[FOOTNOTE CONTINUED FROM PREVIOUS PAGE]
311(p) regulations remain in full force and effect until
such ciae as section 108(a) regulations are issued.
Financial responsibility requirements and direct cause
of action provision* similar to chose contained in section
108 of CERCLA arc also found in section 311(p) of the Clean
Water Ace, 33 U,S.C. 1321(p). and in section 305 of the Outer
Continental Shelf Lands Act Amendments of 1978. 43 D.S.C.
1815.
The authoricy to promulgate financial responsibility
regulations required under CERCLA section 108 (-a) regarding
vessels and offshore facilities was delegated to the Coast
Guard by Executive Order 12418 (May 5, 1983), 48 Fed.Reg.
20891 (May 10, 1983).
31 / This entire provision may be qualified in the saae
— manner" as set forth in RCRA Section 3004(t) during
reauthorization of CERCLA in 1985.
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- 35 -
Tht nexc question is whether soae other federal daia
against insurers may be found or implied under CERCLA.
The two sections of CERCLA most relevant to the possibility
of a right of direct action'against an insurer are Sections
107 and 108, 42 U.S.C. f 9607 and 9608. Section 107 is
the sain liability provision of CERCLA and does not by its
tens include insurers among the list of responsible parties
listed in Section I07(a). Section 107(t) preserves the
validity of insurance agreements, but does not implicitly
or explicitly authorize actions directly against insurers
by a party other than the insured. As noted above, an
analysis of the language of section 108 reveals a legislative
intent to permit actions directly against financial respon-
sibility insurers, but only under limited conditions.
A clear federal direct right of action under CERCLA
against insurance companies appears to be dependent upon the
issuance of financial responsibility regulations. As to the
onshore facilities with which we deal most frequently, such
regulations vill not b* promulgated until at least December
11. 1985. In the interim, there is only a potential for
developing an interstitial federal common lav. based on
the need for a uniform approach to the ^assertion of claims
generally allowed under .state lew. CIR.CLA section 302(c)
preserves financial responsibility regulations issued
under section 311(p) of the Clean Water Act and RCRA, as
well as all state direct action claims which the United
States may be entitled to assert.
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- 36 -
B. Assigned or Subrogated Claims of the Insured
Assignment After Judgment, Assignment Before
Judgment, Assignment of Claims for Breach of
Duties, and Assignments After Bankruptcy
This section vill discuss whether and under what condi-
tions a defendant or potential defendant in a RCRA or CERCLA
case could assign its claia against its liability insurance
carrier to ehe United States. As with other insurance issues,
these are largely issues of State lav. Accordingly, specific
state authorities should be consulted before any strategic
decisions are made.
Resolution of assignment questions depends to a sub-
stantial degree on the factual context of the case. This
discussion assumes that the United States has a RCFA or
CERCLA claia against a defendant and that Che defendant has
possible liability insurance coverage with respect to that
claia. If the defendant is a "deep-pocket," i.e., it will be
able to satisfy any judgment against it, the United States
probably would not want to take more than a passive role with
respect to insurance, coverage issues. Acordingly, for purposes
erf further discussion, we can assume that the defendant has
Little if any assets to satisfy the CERCLA judgment and that
the United States' primary hope for substantial recovery is
froo the insurance carrier.
Assignment After Judgment
Fundamental issues regarding the prosecution of direct
action claias against an insurer are usually dependent on
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- 37 -
whether a Judgment has yec been entered against the insured
defendant on the claim. If it has, there are a number
of possible methods for pursuing claias directly against the
insurance carrier. These may include, depending on the
jurisdiction and the insurance policy involved, proceeding
as a third party beneficiary under the policy, as a judgment
creditor garaishee, as an assignee, or proceeding under
applicable statutory provisions allowing direct suit against
the insurance carrier. See A* Windt, Insurance Claims and
Disputes 365 (1984). Of course, if the insurance carrier
has defended its insured without a reservation of its
right to deny coverage, it can be expected to pay the
judgment, to the extent of policy limits, without the need
for further proceedings.
In the absence of a policy provision providing for
direct action by che injured party, the United States could
proceed after judgment via garnishment or applicable statutory
provisions allowing direct claims against the insurer.
Alternatively, an assignment could be taken of the insured's
rights agiinst its insurer, in partial or full settlement of
the United States' claim against the insured.
Liability insurance policies generally have a provision
prohibiting assignments. The following provision is typical.
Assignment. Assignment of interest -under this
policy shall not bind the company until its
consent is endorsed hereon.
Nevertheless, courts have almost uniformly held that the
prohibition is one against assigning the general coverage
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- 38 -
providtd by tht policy before lo«s, and chat it does not
encompass a prohibicion againsc assignment after a loss has
occurred. The basis for chit distinction has been explained
as follows:
Although there is some authority co the
contrary, the great weight of authority
supports the rule that general stipulations
in policies prohibiting assignments thereof
except vith the concent of Che insurer apply
co assignments before loss only, and do noc
prevene an assignment after loss, for the
obvious reason that the clause by its own
terms ordinarily prohibits merely the assign-
ment of the policy, as distinguished from a
claim arising thereunder, and the assignment
before loss involves a transfer of a contractual
relationship while che assignment after loss
is the transfer of a righc co a money claim.
16 Couch on Insurance 2d 163:40 (Rev. ed.); accord. 7
Appelman, Insurance Law & Practice §4259; Maneikis v. St.
Paul Insurance Co.. 655 F.2d 818. 826. (7ch Cir. 1981) ("Policy
provision [against assignments], however, can only prohibit
assignment of policy coverage, noc assignment of an accrued
cauae of action."); International Rediscount Corp. v. Hartford
Accident & Indemnity Co.. 425 F.Supp. 669 (D. Del. 1977);
and Brown v. State Farm Mutual Automobile Insurance Asso-
ciation. 1 111. App. 3d 47, 272 R.E. 2d 261, 264 (1971)
Following an assignmenc, che assignee stands in che
shoes of the Insured and will be subject co any defenses chat
ehe insurer had against che insured prior Co assignment. See
A. Uindc, supra. ac 367. Thus, che insurer can assert.that
che claim is noc within che coverage of che policy or that
policy conditions have noc been complied with. Therefore,
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- 39 -
tht value of Any Assignment should be examined CArefully
prior Co its acceptance AS consideration for settlement.
Assignment Before Judgment
While An Assignment After judgment is generally
Allowed, assignments before judgment present special
problena And «Ay not be AppropriACe in certAin situAtions.
At leAst two problems Arise in the prtjudgment context.
First, liability policies generally require the insured
to cooperate with the insurer. Assignment of a claim under
the policy AgAinst the insurer could be construed AS A viola-
tion of the cooperation requireaenc. Such A construction
would be likely if the insurer HAS Agreed to defend And hAs
not denied coverage. The c —-ration clause of A liAbility
insurance policy vill be deemeo violAted where the insured,
by collusive conduct. AppeArs to be Assisting the claimant
in the maintenance of his action. 14 Couch on Insurance.
supra. $51.115; And Brown v. State Farm Mutual Automobile
InsurAnee Association, supra. 272 N. E.2d AC 264 ("[Cjollusion
in respecc eo liability is, of course, A direct violation
of che non-cooperACion clauses of che insurance policies, And
if established is a defense eo che insurer's liability.").
However, in a situation where che insurer has denied
coverage and has refused cv? nd. An assignmenc should not
violate the cooperation requirement. Ic has generally been
held chac chere is no duty eo cooperAte once che insurer has
denied coverage. 14 Couch on Insurance, suprA. 151.121; A.
Windt, suora. AC 97; Shernoff & Levine, Insurance; Bad Faith
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- 40 -
Litigation. 13.06(3] (1984); and see Critz v. Farmers Insurance
Group. 230 Cal. App. 2d 788, 41 Cal. Rptr. 401 (1964). In
Critt. the court rejected tht argument that an assignment of
rights again*c the insurer violated the cooperation agreement
of the policy in a situation where the insurer had itself
failed to comply with the policy. 230 Cal. App. 2d at 801 .
The Court stated:
Whatever may be [the insured'•] obligation eo
the carrier, it does not demand that he bare
his breast to the continued danger of personal
liability. By executing the assignment, he
attempts only to shield himself from the
danger to which the company has exposed hia.
He is doubtless less friendly to his insurer
than he might otherwise have been. The
absence of cordiality is attributable not
to the assignment, but to his fear that the
insurer has callously exposed him to extensive
personal liability. The insurer's breach go
narrows Che pelicyholder's duty of cooperation
that the self-protective assignment does not
violate it.
The other obstacle to an assignment before judgment is
the standard policy provision — called the "no action"
provision — requiring a judgment against the insured, or a
settlement consented eo by the insurer, before suit is
commenced against the insurer. One such provision provides:
Action Against Company. No action shall lie
against the company unless, as a condition precedent
thereto, there shall have been full compliance with
all of the tens of this policy, nor until the
amount of the Insured's obligation to pay shall
have been finally determined either by judgment
against the insured after actual trial or by
written agreement of the insured, the claimant
and the company.
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- 41 -
See generally. 11 Couch on Insurance, supra, $$44 .-318-44:323.
Again, in situations where che insurer -has agreed to defend
ics insured, this provision will likely prohibit any pre-
judgment assignment. However, an assignment may be possible
if che insurer refuses to defend.
As noced above, the standard policy provision requires,
as a predicate to the insurer's liability, a Judgment or a
settlement among the claimant, the insured and the insurer.
If the situation which creates the desire for an assignment
is one where the insurer refuses to settle, a settlement
without the insurer's consent would not ordinarily create a
basis for liability by the insurer. However, it has been
held chat if che insurer refuses Co defend che insured, che
. •
insured may enctr inco a reasonable settlement and, there-
after, seek reimbursement from ics insurer. This rule is
stated by Appieman as follows:
If an insurer unjustifiably refuses Co defend a
suit, che insured may make a reasonable settlement
or compromise of che injured person's'claim, and is
chen encieled eo reimbursement from the insurer,
even chough Ch« policy purports eo avoid liability
for settlement made without che insurer's consent.
7C Appleman, supra. $46.90. In such a situation, che insured
may, as pare of a setclenenc, "simply assign cercain rights to
che plaintiff." Id. See also id. 14714. In other words, the
settlement can include an assignment.
Maneikis v. St. Paul Insurance Co.. 655 F.2d 818 (7th
Cir. 1981) illustrates chis point. There, Maneikis
initially sued an attorney, Solocke, who represented him
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- 42 -
in * prior business matter. Solotke'a professional liability
insurer, St. Paul Insurance, denied coverage and refused to
defend, claiming the natter sued upon was not vithin scope
of the policy. Thereafter, Maneikis and Soloeke entered
into a settleacnt agreement of $200,000 to be satisfied by
Solotke's payment of $50,000 and his assignaent to Haneikis
of his rights against St. Paul. Maneikis sued St. Paul on
the assignaent. The trial court granted sumaary judgment
Co St. Paul. The Seventh Circuit reversed. It found chat
the policy provision prohibiting assignments did not apply
to assignments of an accrued cause of action and that an
"insurer's wrongful refusal to defend permits the insured
to negotiate a reasonable settlement." Ld at 827. See
also Carter v. Aetna Ca«ual"CT~and Surety Co., 473 F.2d
1071 (8th Cir. 1973); Crit« v. Tamers Insurance Croup.
supra; Samson v. Transaaerica Insurance Co.. 30 Cal. 3d
220. 240-41, 178 Cal. Rpcr. 343, 636 P. 2d 32 (1981);
Shemoff & Levine, supra. 13*06(3) ("It has also been
held that when the insurer denies coverage and refuses to
defend* its insured, the insure^ need not notify the
insurer of any assignment of his or her rights against the
insurer prior co Judgment."); and 14 Couch on Insurance.
supra. $51.72. Couch states the rule as follows:
If the insurer unjustifiably refuses to defend
an action against the insured, on the ground
that the action was based upon a claim noc
covered by the policy, ic cannot successfully
invoke che no erial clause co bar liability,
for che reason chat when che eectleaenc by
the insured after che unjustified refusal to
-------
- 43 -
dcftnd WAS made in Absolute good filch in
order to ovoid che chariot of An Adverse verdict
for A much 1'Arger sum, ic would seen grossly
unjust, if not concrAry to public policy, to
insist ehst there aust be in every CAse An
Actual triAl And verdict.
To sumoArize, where the United StAtes hAS not yet
obtAined A judgment And where A defendsnt's insurer BAS
32/
refused Co defend, A settleaent could be considered with
the defendant which included, Aaong other things, Assignment
of the defendAnt's clAims AgAinst its insurer. Specific
stAte Authority should, of course, be consulted before such
An Assignment is negotiated And Accepted.
Assignment of ClAims for Breech Duties
Another fACt situation in which the Assignment issue
frequently Arises-involves bad faich refusal to settle.
1C is generally held that an insurance carrier which in
bAd fAith refuses to settle A clAim within policy limits mAy
thereafter be liable Co chc insured if a judgment is entered
beyond the policy limits. This subject is discussed AC length
in 7C Appleaan. supra f14711-15; See, e.g.. Critz v. Farmers
Insurance Croup, supre?.
For example, assume chat plaintiff sues defendant for
$50,000. Defendant has an insurance policy with a $25,000
317 An insurer may frequently defend its insured with a reser-
vation of lea right co ultimately deny coverage. There is
a division in authority as co whecher such a reservation of
righcs, or non-waiver agreement, muse be consented to by the
insured. See 14 Couch on Insurance, supra. 8651:89. As noted
above, if chere is a defense by che insurer with reservation
of rights, ie may be questionable whether the defendant
could enter into A settlement without che insurer's consent
end scill preserve its righcs AgAinst che insurer.
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- 44 -
policy ll«ic. During che course of litigation, plaintiff
offers co settle for $25,000. If the insurance carrier in
bad faith refuses to accept the settleaent and judgment is
thereafter entered for $50,000, the insurer will be, if its
bad faith is established, liable eo pay che encire $50,000
and may also be subject to a punitive daaage award.
In the situation described, one assignment issue arises if
the insurer, after judgment, pays plaintiff $25,000 but
refuses to pay the other $25,000. Can the defendant assign
its bad-faith-refusal-to-pay claim to plaintiff in satisfac-
tion of the judgment against it? Most courts have said yes.
Brown v. State Farm Mutual Automobile Insurance Associa-
tion, supra, illustrates this situation. There., an insured
was sued for $40,000. It had ah automobile liability
policy for $20,000. After discovery, the plaintiff offered
to settle for $20,000. The offer was refused. Judgment
was entered for $40.000. The insurer then paid $20,000.
The insurer's only assets were $5,500 and a potential dais
against the insurer for bad faith refusal to settle. Those
assets vert assigned to plaintiff, who then sued the insurer.
The Illinois appellate court allowed the assignment stating:
"We find no valid reason in public policy why the cause of
action should not be assignable." 272 H.E. 2d at 264; accord.
Murphy v. Allstate Insurance Co.. 17 Cal. 3d 937, 132 Cal.
Rptr. 424, 533 P.2d 584, 587 (1976) ("The insured may assign
his cause of action for breach of the duty to settle without
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- 45 -
consent of the insurance carrier, even when che policy provi-
sion* provide to che contrary.").
Bad faith refusal to pay claims may well arise in CERCLA
cases, particularly as the requirements of CERCLA become
oore clearly established. In situations where the claim of
the United States exceeds policy limits and the insured has
little if any assets of its own, it nay be advisable for the
United States to consider making a less-than-policy-limits
settlement offer. If the offer is refused and a judgment
beyond policy limits is obtained, the United States can then
consider taking an assignment of the insured's claim against
the insurer for wrongful refusal to settle.
Finally, assignments in Che excess liability context,
i.e.. where a Judgment exceeds policy limits, are apparently
quite common and allow the judgment creditor to seek full
reimbursement from the insurer. One treatise describes the
situation AS follows:
A common practice by which the injured third-
party claimant achieves full compensation, and
the insured is absolved from the liability
Judgment, is an assignment by the insured
of his rights against the insurer to the
insured's Judgment-creditor. In exchange
for the assignment, che claimant signs a
covenant not to execute above the policy
liaits against che insured. The assignment
thus becomes a convenient way for Che insured
to fully satisfy the injured party. In
situations where the insured is basically
'judgment proof,1 ic may well net che injured
party far more than execution of che judgment
against the insured. One disadvantage of
this technique for the claimant is that the
risks of collectibilicy and litigation
against the insurer fall upon the claimant.
1 Long, Law of Liability Insurance 15.46.
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- 47 -
Allows a party who ha* obtained judgatnc under the policy
co proceed against the insurer. It provides:
Any person or organization or the Itgal
representative thereof who has secured
such judgment or written agreement shall
thereafter be entitled to recover under
this policy to the extent of the insurance
afforded by this policy.
Where such provisions are present, they are probably
required by statute.
21/
0. Common Lav Denial of Direct Action
Coaaon lav generally denies claims by injured
persons against a tortfeasor's insurer. Ap pieman. S 4861.
Liability and indemnity policies (the first covers the
insured's liability, the second primarily serves to cover the
insured's losses) typically contain clauses barring joinder
of the insurer .in actions against the insured, which are
upheld in the absence of a statute to the contrary. Appieman,
S 4861. Similarly, most jurisdictions do not allow the insurer
to intervene in an action against the insured. Applcaan.
I 4861 . See, e.g., United States v. Hortheastern Pharmaceu-
tical and Chemical Co.. Inc.. Civ. No. 80-5066-CIV-S-4
(V.D. Mo., May 3. 1983) (included in the Compendium) (denying
insurer intervention in a RCRA ! 7003 and CERCLA Si 106 and
107 action).
33/ The discussion under this heading and the next is
derived largely from two sources: Appleoan, Insurance
Lav and Practice (1981, Supplemented 1984), SS 4861 , et. seq,
("Appleaan") (Appendix L), «nd American Insurance Asso-
ciation. Statutes Affectint Liability insurance (198U
(AlA survey) (A summary of airect action rules in the 50
states, Guam and Puerto Rico is presented at Appendix M.).
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- 68 -
Thert is one notable exception to the common law rule
regarding direct action. Some jurisdictions allow direct
actions, in the absence of a direct action statut.e, where
the policy is required. Alabaaa recognizes such an exception,
while Arizona does not. In Illinois, it is recognized in
actions on employer's liability and compensation policies.
Appleaan, S 4862. This exception is sometimes qualified for
specific forms of insurance. See Appendix M. Since states
operating approved RCRA regulatory programs will probably
require insurance under state lav, this exception may be
significant.
E. State Direct Action Statutes
Aa of 1981, twenty-seven states, Puerto Rico and
Guam had adopted some form of direct action statute. See
Appendix M. These statutes may allow joinder of insurers,
independent prejudgment litigation against insurers, post-
judgment suits to recover directly from insurers, or some
combination of these options. These statutes typically
provide that liability policies must contain provisions
allowing such suits, or provide that such suits may be
brought notwithstanding a policy clause to the contrary.
Frequently, authorized direct action claims are limited
by category or arc otherwise conditioned. For example,
34/ The first direct action suit brought by the United States
to recover from the-insurer of a &CRA/CERCLA judgment
debtor is United States v. Continental Insurance Co.. Civ.
No. 85-3069-CV-5-<» (V.D. Missouri, nieo narcn I?B:>;. The
complaint is presented as Appendix N.
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- 49 -
sixteen states allow post-judgment suits against insurers
only if tht judgment has not been be act by execution upon
the insured. Only Louisiana, Guam and Puerto Rico allow
broad prtjudgment direct actions. See Appendix M, and the
AIA Survey, which contains details of individual state
statutes.
Due to the extraordinary variety of state statutes
on this subject, the United States nay be served best
by arguing the necessity of a uniform federal common law rule
for direct action in RCRA and CERCIA cases, as has been done
successfully for the similarly diverse issues of joint and
several liability and contribution. See United States v.
A & F Materials. 578 F. Supp. 1249, 1255-56 (S.D. 111. 1994);
United States'v. Chem-Dyne. et al.. 572 F. Supp. 802. 807
(S.D. Ohio 1983; and Vehner v. Syntex Agribusiness. Inc..
Civ. No. 83-642 (2) (E.D. Mo. April 1, 1985) IX Chem. & Rad.
Uaste Lit. Rptr. 879.
F. Other Procedures for Litigation Between
Insurers and the United States
1. Intervention by the insurer in an action by
Che United State* against the insured.
As indicated ac p. 47. supra, the courts generally
h*ve not allowed insurers to intervene in suits against the
insured. This has proven true in all cases in which the
question has been tested under RCRA and CERCLA. On the other
hand, if all parties to the litigation support permissive
intervention in an action by the United States under an
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- 50 -
environmental statute, there is no obvious reason why
intervention must be denied.
2. Declaratory judgment suits between the
insurer and the insured.
Private and governmental civil suits urder RCRA
and CERCLA have spawned several suits for declaratory relief
between insurers and purportedly insured waste site owners
and operators, transporters aad generators. A private
attorney reportedly stated in April, 1985 that Aetna Casualty
Ins. Co. (one of the major carriers in the field) was then
receiving an average of two hazardous waste related claims
per day. In several state court cases involving coverage
disputes between CERCLA responsible parties and their insurers,
efforts have been Bade to join the United Staes 'a* a third
party defendant on the grounds tht it is an interested party.
Hone of these efforts -has succeeded.
Sovereign immunity bars any suit against the United States
in the absence of a specific congressional waiver. There is
no statute providing that the United States can be named as
a defendant in on* of these cases. The type of relief sought
does not seen to affect the applicability of the immunity
one way or the other; and the cases generally hold that the
doctrine is absolute. Thus, the state courts do not have
jurisdiction over the United States in these insurance
suits. Block v. North Dakota. 103 S.Ct. 1811, 1816 (1983);
United States v. Sherwood. 312 U.S. 584, 586 (1941).
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- 51 -
Success by the insured in coverage litigation probably
precludes the insurer from contesting some or all questions
of coverage in a subsequent direct action by the United
States. The doctrine of collateral estoppel, or issue pre-
clusion, holds that where an issue of fact or lav was actually
litigated and determined by a valid and final judgment, that
determination is conclusive in a subsequent action involving
the sane parties or at least the same party as is sought to
be held, whether it is on the same or on a different claim.
Wright. Law of Federal Courts I 100A (4th ed. 1983) [hereinafter
Wright] , and cases cited.
If the United States is not a party to the litigation,
could it be bound? Ordinarily, persons who were not parties
to the first action will not be estopped. 18 C. Wright, A.
Miller & E. Cooper, Federal Practice, Procedure, and Juris-
diction ff 4448-4449 (1981) and [hereinafter Wright and Miller)
and eases cited. Where a defendant is not subject to the
jurisdiction of a court, it can not be a party and thus can
not be"bound by collateral estoppel. Zenith Radio Corp. v.
Hazeltine Research. Inc.. 395 U.S. 100. 110 (1969); Oil &
Cat Ventures First 1958 Fund. Ltd, v. Rung. 250 F. Supp.
744, 753-54 (S.D.N.Y. 1966); and 18 Wright & Miller ! 4449.
Thus, if a court could not exercise jurisdiction over the
United States, the United States could not be considered a
party and could not be estopped by any decision by the court.
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- 52 -
However, nonparties to suits can sometimes be held to
bt collaterally estopped -- if the nonparty actively partic-
ipated in the prior case, and was a party in everything but
name; if the nonparty's in", ists were specifically repre-
sented in the first action, e.g. a trustee or guardian was
involved in the first suit; if the nonparty had some actual
duty to either enter the lawsuit or give soae notice that it
was not interested in the suit and would not -consider itself
bound by it; or, if there was a sufficient party to the
suit. e.g.. they held successive interests in the property
that was th* subject of the suit. 18 Wright & Miller S 4449
and cases cited.
The first two exceptive, -o not seea applicable to the
United States. The latter two exceptions to the nonparty
rule might conceivably apply. The first of these latter
exceptions would extend preclusion to those persons that had
an opportunity to participate in the litigation, that did
not do so, that did not inform the actual parties that they
night raise the issue in the future, and thus lead the parties
to believe chat they were not interested in the litigation.
This exception ia primarily espoused in the vorks of commen-
tators and is really a form of equitable estoppel. See.
e.g.. 18 Wright & Miller SI 4432 and 4453; and Restatement
(Second) of Judgments S 62 (1981). But the rules for applying
equitable estoppel against the United States are unique, le
is by no scans clear that the United States can be estopped
under any circumstances. Some Circuit Courts of Appeal have
-------
- 53 •
traced that estoppel cannot lie against Che federal povern-
mcnc. Hicks v. Harris. 606 F.2d 65, 68 (5ch Cir. 1979).
Other Circuit! have allowed the United States to be estopped
under certain liaited circumstances, i.e.. where there has
been a misrepresentation that rises to the level of "affinaativ*
misconduct." Community Health Services of Crawford County.
Inc.. v. Califane. 698 F.wd 615, 620-21 (3rd Cir. 1983);
Mendoza-Hemandet v. INS. 664 F.2d 635, 639 (7th Cir. 1981).
These decisions allowing estoppel may not be in keeping with
the Supreme Court's latest pronouncement on the issue,
Schweiker v. Hansen. 450 U.S. 785, 788-91 (1981). But even
if these decisions still are valid, getting a ease dismissed
because a court has no jurisdiction and later raising the
saae issue in a court of competent jurisdiction does not
seem to be "affirmative misconduct" — at least where there
are no representations accompanying the dismissal of the
first case that the issue will not be raised later.
Even if this exception could be refuted successfully,
it may be a better idea simply to moot it, since the United
States could do so with a minimum of effort. All that would
have to be done is to notify the parties after the United
States is dismissed that it will not consider itself bound
by any determinations in the case.
The second potentially applicable exception to the
nonparty rule holds that where there is some legal relationship
between the nonparty and a party, such as where one i^a
predecessor in interest to the same claim or property, the
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- 54 -
nonparty can bt bound in later tuics. An insurance company
would seem to have a basis for tscopping the United Scares
froa retrying the insurance coopany's liability under its
contract on this basis only if the United States actually
has taken an assignment of the assured1s claia againsc the
carrier and has no independent rights of action.
The preclusive effect on a nonparty judgment creditor
of a finding of no coverage in a suit between the insurance
company and its insured was addressed-in Hocken v. Allstate
Insurance Co.. 147 S.W.2d 182 (Mo Ct. App. 1941). Hocken
filed suit against the insured for personal injuries suffered
as a result of a car accident and recovered a judgment for
$2,500. While Hocken's suit was pending, the insurance
company filed suit against the insured and Hocken seeking a
declaration that the policy was void due to fraudulent
misrepresentations by the insured in the procurement of the
policy. For undisclosed reasons, the insurance company
dismissed Hocken as a party and judgment was rendered against
the insured prior to the entry of a judgment for $2,500 in
Hocken's favor in ehe underlying personal injury suit.
Hocken later brought a garnishment proceeding against
the insurance company to recover the $2.500 Judgment.
In its defense, the insurer contended that the declaratory
judgment against the insured was not subject to collateral
attack but was binding on Hocken because she was in privity
with the insured, having derived her rights against the
insurance company solely through the insured, the trial
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- 55 -
rtvtrscd and remanded chc ease for a ntw trial on the issue
of coverage.
The crux of the appellate court's decision was its
holding that, contrary to thfe insurance company's assertion,
the injured party was not a privy to the suit between the
insurance company and the insured. It reasoned that Hocken was
not privy because she acquired whatever rights she possessed
under the policy prior to the institution of the declaratory
judgment action. 147 S.W.2d at 186. "After those rights
cane into existence the insured could not by any act, or by
the submission to the rendition of judgment against him,
lessen the interest vested in [the injured party]." Id.
Hocken's rights were acquired before the institution
of the declaratory judgment action because under Missouri law
the injured party acquires its rights to the insurance coverage
at the time of the accident or the occurrence- of the injury.
"It is true that those rights were originally derived through
the insured, but by operation of law they are fixed and
independent of any control by the insured, so that as to all acts
•
aad relations subsequent to the accident, which gave rise to
plaintiff's rights, they were not in privity." Jtd. at 188.
See also Mathison v. Public Work Supply District. 401 S.W.
2d 424, 431 (Mo. 1966) ("to make one "privy" to an action he
oust have acquired his interest in the subject'of'the action
subsequent to the commencement of the suit or rendition of
judgaent").
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- 56 -
The right* of che United States Against an insurer
in an environmental case, under this analysis, would be
acquired at the tiae of che accident or occurrence giving
rise to liability.
Courts in other sti. re in accord with the logic
and holding in Hocken. In United Farm Bureau Mutual
Insurance Co. v* Uaapler. 406 N.E.2d 1195 (Ind. Ct. App.
1980), an injured party sought eo execute a judgment against
the insured by proceeding against the insurer. The insurance
company asserted that a previous judgment against the insured
on che issue of coverage was res Judicata as to the injured
party. The court held chac che injured party was not in
privity vieh che insurer or Che insured and noc bound by the
outcome of che declaratory judgmenc. Id. ac 1197. The
court relied on 7 Aai.Jur. 2d, Aucomobile Insurance IS(1963):
A judgmenc determining, as between
an automobile liability insurer and che
insured or a person claiming eo be in-
sured, a quescion of coverage in favor of
che insurer does noc, as a matter of res
judicaca, preclude che injured person
from licigacing the quescion of coverage
in a subsequenc accion or proceeding in-
scicucad by him against che insurer, since
ehe injured parson ia noc in privity vich
any of che parcias in che former proceeding.
In Cladon v. Searle. 412 P.2d 116 (Wash. 1966),
while a suit by an injured party against che insured was
pending, che insurance company commenced.an aecion against
che insured for a declaratory judgmenc as co coverage. The
company did noc nocify or attempt co join che injured party,
and a default judgment was entered in favor of the insurer
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- 57 -
after chc iniurtd filled to answer the suit. The injured
party subsequently recovered a default judgment against che
injured and filed a garnishment action against che insurance
company. Judgment was entered against the insurer, which
appealed. The court held that "third party claimants in an
action of this nature are not bound by a declaratory judgment
in which they were not made a party." ^d at 118.
The insurance coapany in Sobina v. Busby. 210 K.E.
769 (111. App. Ct. 1965), sought to us* a judgment from a
suit between the insurance company and the insured as a
defence in an action by the injured parties against the company
to recover on a Judpnent entered against the insured. Ci'ting
Hocken, supra the court observed. "There is ample authority
holding that the plaintiffs in the underlying tort action
are not in privity with the insured, that the insurance
policy is one against liability and not against loss, that
the plaintiffs' rights accrued at the tiae of the accident
and were not cut off in a later decree entered in proceedings
to which the plaintiff* w«re not parties." JCd. at 772-73.
Southern Fara Bureau Casualty Insurance Co. v.
Robinson. 365 S.W.2d 454. 456 (Ark. 1963). addressed the
following question-.
Can a default declaratory judgment
between an insurer and an insured,
instituted while suit is pending in
a foreign jurisdiction between the
injured and an injured per»on, which
»uit the insurer i« defending, destroy
the right* of the injured person who was
not a party of the'declaratory judgment
proceedings?
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- 58 -
The court said "No," and explained chat the rights of the
injured party arose at the tine of the injury and are
antagonistic to the rights of both the insurer and the insured.
Id. at 457; see also 46 C.J.S. Insurance 11191, p. 123 ("The
rights of the injured person who may maintain an action
against insurer are to be determined as of the time of the
accident out of which the cause of action grew . . . .)" and
Shapiro v. Republic Indeminity Co.. 341 P.2d 289 (Cal.
1959). In Shapiro, the injured parties recovered a judgment
against the insured and then brought an action against the
insurer on a public liability insurance policy that covered
the insured. The insurer argued that its liability must be
determined according to the policy as it was reformed in a
postaccident action between the insurer and the insured.
The court held that, as third-party beneficiaries of the
insurance policy, the injured parties had an interest that
could not be altered or conditioned by the independent action
of the insurer and the insured in reforming the policy. Id.
at 291; accord Boulter v. Commercial Standard Insurance Co..
175 F.20 763. 766 (9th Cir. 1949)(applying California law).
The Hew Jersey Supreme Court has also rejected the
argument that, because -the injured person stands in the shoes
of the insured, a judgment in a suit between the insured and
the insurer is conclusive against the injured party.
Dransfield v. Citizens Casualty Co.. 74 A.2d 304, 306
(N.J. 1950). The court in Dransfield reasoned that the
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- 59 -
Injurtd ptrson has a cause of action cht moment he or the
ii injured and is noc in privity with the insured. Virginia
likewise ha* held ehac, even chough a judgment creditor stands
in the insured'a shoes, the injured party is not barred by a
plea of ret judieata. S torn v. Nationwide Insurance Co.. 97
S.E.2d 759 (Va. 1957). "The insured and the Company may
noc litigate and have [the injured party's] rights against
cbe Coapany, which had their inception at the tine of her
injury, determined in an action to which she is not a party."
97 S.E.2d at 764. See also Bailey v. United States Fidelity
and Guaranty Co.. 103 S.E.2d 638, 641 (S.C. 1937) (injured
party would not be privy, and therefore noc bound by judgment
in a suit* to which he was not a party, where her rights vert
acquired at time of injury and prior co the rendition of the
judgment).
The commentators agree with this line of eases. Couch
states, "A judgment dettrming as between an automobile liabilit;
insurer and the insured or a person claiming to be insured)
a question of coverage in favor of che insurer does noc, as
a natter of res judicaca, preclude Che injured person from
litigating the question of coverage in a subsequent action
or proceeding instituted by him against the insurer, since
the injured person is not in privity with any of the parties
in the foraer .proceeding." Couch, Cyclopedia of Insurance
lav. 545:945 (2nd ed.). Likewise, Appleman notes that "an
injured person c*n neither be bound by a judgment in favor
of the insured in a suit brought by another claimant, nor by
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- 60 -
« judgment in favor of the insurer, in an action brought
upon the policy by the insured." Appleman, 511521; sec also
69 ALR2d 858, 859.
One Ohio case that is inconsistent with all of these
other cases. In Conoid v. Stern. 35 N.E.2d 133 (Ohio 19*1) ,
an injured party recovered a judgment against the insured
for personal injuries sustained in an automobile collision.
The Judgment creditor then brought an action against the
insurer to recover the amount of the Judgment. The insured
company averred as a defense a judgment in an action between
the ins-urer and a different party also injured in the same
collision in which the court held the policy null and void
due to the insured's failure to cooperate. The court held
that a judgment in favor of the insurer in an action by
an injured party on the question of noncooperation was res
judieata in favor of the -insurer in a later action by another
person injured in the .same accident. Id. at 140-41. The
court reasoned that the right of the insured against the
insurer was fully litigated in the suit by the first injured
party and the declaratory judgment against the insured is a
bar against another injured party whose right, if any, against
the insurance company is derived from and dependent upon a
valid right of the insured against the insurance company.
The decision in Conoid nowhere mentions the issue of
privity or when the rights of the injured party arise, but
•
focuses solely on the rights of a judgment creditor being
derivative of the rights of the insured. Also, the case
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- 61 -
involves an action by an injured party where judgment has
been entered in favor of the insurer in a sinliar action by
another person injured in the sane accident. Most importantly,
although the aore recent case of Celina Mutual Insurance Co.
v. Sadler. 217 N.E.2d 255 (Ohio Ct. App. 1966), suggests
that, the holding in Conoid is still the lav in Ohio, Conoid
has not been followed by the courts of any other state.
Accordingly, although Conoid should caution the United States
against remaining a nonparty co an action in Ohio between an
insured another party injured by the insured, it should not
affect the decisions of the United States in other states.
Yet another exception to the estoppel rule may be
applicable to our cases. When collateral estoppel vould
violate general notions of public policy, or would work an
injustice, it is not to be applied. Specifically, where the
government is involved in a case designed to protect the
public, it should not be estopped by previous cases to which
it was not a party. Porter & Dietsch. Inc.. v. FTC. 605
F.2d 294. 299-300 (7th Clr. 1979); Defenders of Wildlife v.
Andrus. 77 FRD 448. 454 (D.D.C. 1978); Restatement (Second)
of Judgments I 28 (1981); and 18 Wright & Miller I 4426.
Hazardous waste cases appear particularly apposite for applying
this principle. The United States is attempting to fund the
containment and removal of very serious threats to health
and the environment. It should not be hampered in these
efforts by estoppel arising out of litigation. Moreover,
the line of cases discussed in the context of whether the
-------
- 62 -
United States could be considered AS having a relacionship
with some party, and thus be bound by his failure in litiga-
tion, is buttressed by the unique public responsibilities of
the government.
Finally, although it is doubtful that the United States
will want to intervene in declaratory judgment actions between
liable parties and their insurers, it is not at all clear
that che court would allow such intervention in the absence
of a preexisting judgment and an independent direct action
claia. See Independent Petrochemical Corp.. v. Aetna Casualty
and Surety Co.. Civ. No. 83-3347. (S.D. Ohio, March 8, 1985X
22 ERG 1523. IX Chen, and Rad. Waste Lit. Rptr. 911 (included
in the Compendium), denying Rule 24(a)(2) intervention to
individuals asserting unresolved personal injury claims against
the bankrupt IPC; but cf. Re-Solve v. Canadian Universal
Ins. Co.. (Mass. Super Ct., CA Ho. 14767. May 14, 1984),
discussed at IX Chem. & Rad. Waste Lit. Rptr. 822 (allowing
the Commonwealth of Massachusetts to intervene In an action
between a polluter and its insurer).
-------
y ^J>
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON DC 20460 OSWER * 9850.C
»•-., - - ="
'•v» .i ~ CC- Swb'
; 5 VI »Sf
SUBJECT: Enda nee raer.t Asse^ssjnent Guidance
FROM: J. Winston Porter
Assistant Administrator
TC: Addressees
?'JR?CS£
This r.er.crar.d-r. clarifies the requirement that an
endangermer.t assessment be developed to support all administra-
tive and jud.icial enforcement actions under Section 106 of the
Cotr.?reher.sive Environnental Response, Compensation, and Liability
Act (CERCLA) and Section 7003 of the Resource Conservation and
Recovery Act (RCRA). Before taking enforcement action under
these provisions to abate the hazards or potential hazards at a
site, the Environmental Protection Agency (EPA) must be able tt
properly docu.r.ent and justify its assertion that an irur.inent ar.i
substantial endangerrr-ent to p-.olic health or welfare or the
.e-nvironinent ray exist. The endangerraent assessment provides t.^:s
documentation and justification. The endangernent assessment is
not necessary- to support Section 104 actions.
This memorandum alto provides guidance on the content,
timing, level of detail* format, and resources required for the
preparation of endang«rm«nt assessments.
WHAT IS AN ENDASGERMENT ASSESSMENT
An •ndangerment assessment is a determination of the
magnitude and probability of actual or potential ham to public
health or welfare or th« environment by the threatened or actual
release of a hazardous substance (for a CERCLA action} or a
hazardous waste (for a RCRA action).
Ah endangerrr.ent assessment evaluates the collective
demographic, geographic, physical, chemical, and biological
factors which describe the extent of the impacts of a potential
or actual release of a hazardous substance and/or hazardous
waste.
-------
?=--.
lr. general, the endangeimer.t assessment should identify and
characterize:
;av Hazardous sjrsta-.ces and 'or hazardous wastes prese-.t
in all relevant environmental media (e.g., air, water,
soil; sediment, biota);
(b) Environmental fate and transport mechanisms within
specified environmental media, such as physical, chemical
and biological degradation processes and hydrogeoiogxcal
evaluations and assessments;
(c) Intrinsic toxicolocical properties or hunan health
standards and criteria of specified hazardous substa-.res
or hazardous wastes;
(d) Exposure pathways and extent of expected or potential
expos-re ;
;e) Populations at risk; and,
(f) Exte-.t of expected harm and the likelihood of such harm
occurring (i.e., risk characterization).
WHY PERFORM AN ESSANGERy.EXT ASSESSMENT
Under Section 106(a^ of CERCLA, if the President determines
that there ray be an imminent and substantial endangerment to
public healtn or welfare or the environment from an actual or
threatened release of a hazardous substance, the President may
secure such relief as r.ay be necessary to abate such danger or
threat. Such relief may be in the form of a judicial action cr
a.i administrative order to compel responsible parties to respc.-.c
to hazardous conditions.
Before an order can be issued or an action filed under §106
of CERCLA, EPA must be able to document and justify its assertion
that an irnr.inent and substantial endangerment to public health
or welfare or the environment may exist. The endangerment assess-
ment provides this documentation and justification. It is tne
basis for the findings of fact in administrative orders, consent
decrees, and complaints.
In situations dealing with hazardous wastes or solid wastes
under RCRA, rather than hazardous substances under CERCLA, Section
7003 of RCRA may be used as the au-.vrity under which EPA may
issue orders or file civil acti-r- Section 7003 of RCRA
requires a similar -finding of i.-~ - and substantial endanger-
ment and, therefore, EPA must a^-i. Document and justify such an
assertion with an endangerment assessment before taking enforce-
ment action.
I/ "Final Revised. Guidance Memorandum on. the Use and Issuance cf
Administrative Orders 'Jnder Section 7003 of the Resource Conserva-
tion and Recovery Act", September 26, 1984 signed by Courtney Price
and Lee Thomas.
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•:..- c 3Ci .
It is important to note that "imminent" does not mean immediate
harm. Rather, it means an impending risk of harm. Sufficient ~—i~
justification for a determination cf an imminent endangerment -ay
exist if harm is threatened; no actual injury need have occurred"
cr De occurring.' Similarly, "endangerment" means something less
than actual h a rm.
WHEN TO PERFORM AN ENDANGERMEST ASSESSMENT
At remedial sites subsequently targeted for CERCLA $106 or
RCRA $70C3 enforcement action, all of the elements of an endanger-
ment assessment will be provided by completing the contamination
assessment, public health evaluation, and environmental assessment
during the RI/FS process. As such, these assessments are equivalent
to the endangerment assessment for enforcement sites. The informa-
tion from the contamination assessment, public health evaluation,
and environmental assessment will be considered sufficient to
issue an order although additional work may be needed prior to
litigation (See Attachment 1 and the RI/FS guidance documents
referenced on Page 6 rf this guidance).
Where an RI/FS has net been initiated or completed, as
endangerment assessment must be prepared to justify an adminis-
trative order or judicial action under CERCLA $106 or RCRA §"003.
For example, orders issued to govern responsible party conduct of
an RI/FS or to compel responsible party performance of immediate
response actions will, require an endangerment assessment prior to
issuance. In both cases, the endangerment assessments will demon-
strate that there may .be an imminent and substantial endangerment
w-.ich justifies either further- inves tigative action to determine
the appropriate remedy for a site or an immediate response action.
In isolated cases, EPA has negotiated with potentially
responsible parties for the site remedy before it has developed
tr.e RI/FS. In these few cases, an endange;rment assessment must oe
developed independently of the RI/FS and completed prior to issuance
of the order or decree for remedial action.
An enrfangerment assessment is required for all future RCRA
§70C3 actions, as well as older RCRA $7003 cases to which CERCLA
$106 authority has been or will be added. An endangerment assess-
ment is not required for older RCRA $7003 cases already filed by
tae Department of Justice without an endangerment assessment. The
litigation team, however, may determine on a case-by-case basis
that the preparation of an endangerment assessment or its equivalent
would substantially strengthen the government's case.
Endangerment assessments must be prepared for all RCRA S'OOS
cr CERCLA $106 orders issued to another Federal agency for cleanup
of a Federally-owned facility. Normally, EPA will seek response
action at a Federal facility through a site-specific compliance
agreement with the appropriate Federal agency or other responsible
sarties. If, however, a compliance agreement is not complied with
by Federal owners or responsible parties, EPA may issue an order.
-------
-4-
WKAT LE'.TI. :ET».:I
The determination that an imminent and substantial endan.ger-
a
-ent to punlic health or welfare or the environment ray exist'is
iesal prerequisite tr.at rust be -e t Before an order can be iss.ei
cr'a.n action filed. It is EPA policy that endangerment assessre-ts
should be undertake- only to the extent "necessary and sufficient"
co fulfill the rec j: rer.ents of legal enforcement proceedings. At
ary site, there is the potential for conducting studies seyond the
level of detail needed for enforcerent actions. The level'of
detail of the endangerment assessment should be limited to the
amount of information needed to sufficiently demonstrate an actual
or potential imminent and substantial endangerment. The level of
detail to sjfficiently demonstrate endangernent will vary from case
to case based or. the following factors:
0 the type of e-.forcer.ent action (e.g., AO for removal
vs li tigation);
6 t.-e type of resoor.se action (e.g., removal vs remedial);
and
0 the staze of respc-.se action 'e.g., RI/FS workclar. vs
The level of detail required to support a particular enforce-
ment action will ultimately be determined on a case-by-case
basis by Recional program personnel in consultation with Regional
Counsel. As a general guide, the matrix on page 5 defines these
levels of detail rased on the factors listed above. The matrix
should help the Recions to bc.tn (1) determine what constitutes an
adecuate er.dar.gerrent assessment for a particular enforcement
action, and '2) plan their intramural and extramural resources
accordingly.
When endangerment assessments are developed to support
administrative orders for private party RI/FS or removal actions,
information already available about the site will qenerally be
sufficient. Where sites are targeted for enforcement action
after completion of an RI/FS, the endangerment assessments
developed as part of the RI/FS will be more detailed and severally
more quantitative as they will bt based on information obtained
from the remedial investigation. Such cndanaerment assessments
will be used to support any subseauent CERCLA $106 orders or
judicial actions seeding design and construction of site remedies.
The information gathered in an RI/FS is generally similar
to the type of information needed for an endanoerment assessment.
However, RI/FS and endangerment assessments are developed for
different purposes. RI/FS are used to determine aopropriate
response actions under CERCLA $104, while endangerment assessments
are used for enforcement actions under CERCLA $106 or RCRA $"OC3,
For sites with CERCLA 5106 or RCRA 5*7003 enforcement' potential,
Regions should review the RI/FS workplan to determine whether
information develcced as part of the RI/FS will be sufficient
for an endancermer.t assessment. In certain complex cases.
additional ir.f crraticr. ray be needed and a separate endangerr.ent
assessment wcr*?lar. may be recuired.
-------
i .HI 11.1.1 ui.: • 11 it' I j.vi.i. •
»'it»l>lexity
lrivale parly
RI/FS, prelimi-
nary sctpinq
'type o^A.'-.r.rr;'-.!!
Issuance of AO
or consent clecree
for (wivate party
c leatwp
Litigation
(aite-ty-sile
basis)
Hay l« limited, probably
consist Inq of information
from the Preliminary Rite
Assessment, Site Inspection
Report, and Hazard Ranking
System evaluation, if completed.
Ho health studies available;
no demographic studies avail-
able. Preliminary sampling
data will prnltably tie available
on pollutant*; present. Itota on
extent of release or concentra-
tions of materials at the point
of exposure may he available.
Remedial Investigation complete
or other'quantitative data
availal>le on nature/extent of
release. Ihta may bn nvail.il>to
tjn nwtjnltude and demxiraphics
of pipulation at risk.
rvx>sihly sojne preliminary
liealth effects studies.
!!ources and specific
materials associated with
release are Silent,if ied.
IM and FS omph'to. All
required ujr»i>lfv|ica1, hydro-
(leolrigicai, and lK>allli
studios cojn|»l«.«te.
Uh>te:
Klie nwitr ix is flexible ami n»iy shift on a ra-»—by-i-a!»-
lvtrt .1 |i>ii t irular enlori-iiwiit
.H.-1 ion.
it.il ivo assi
of ex|*isiire re a lies, f»pii-
lation ib i I i I y of h.irm riMfc>nt lo
Huit .in PK|»«sur<'
n»»y exir.l IxMMii.-a* of lite
re 1 1 MSI? .
!V^ni-quant i t at i\nr appraisal
consider iiw| r.|«>cific exp»sure
routes and critical pollu-
tants. Hie asr,ef5swent should
be able to identify any data
fjnpr, are! reoiwrnd aiklitional
stuilies, if
(^•tailed, quantitative
to id«Mitify |r>tential
elfe«-t;;, critical
oxpr >r,r;t of
oxio't I i'ic .HK| kfKiwl nfKj /in
i>l tin- mirci l.iint y.
For ntiiov.il a* -I ions
where ||N» nrinrttl si
rankiriri |>r«x-«v;s har
not l» yen completed
or INK Inr I aki»n, in-
formal ion for tl««
.isser.sjnent iiviy lie
availaltle Inn nt:ord
searclies, iitato S|THI-
sored invest itjat ious,
written rejxuts firm
insfiecl ion«; liy
»|ov*>t itrw»nt autlnri-
l ies, ai»l m>tifica-
tion in accor«lanc»?
with CKW1A SI01.
Tli is assessment must.
\n alile to support
leqal act ion in tin-
e-vent that it is
dial lenc)i?d by a
rrxralcitrant IW.
Should br> contrlu*; i ..•
enou(|h that IVIT, wi | I
In? encouraefctl to II..K<-
a firm omni Imenl to
action, Uit not
ncjcessar i I y
-------
The endangerment assessment should evaluate the adecuacy,
accuracy, precision, comprehensiveness, reliability, and'overall
quality of identified information and data.
Emergency-act ions do not require the same depth cf assess-
ment as planned or remedial activities. By definition, an
immediate and significant ris* cf -»rm. to human life or health
or tne environment will be prese-- .n an emergency, making
the assessment of endangerment . easier to prepare. Further,
EPA is yustffying only the need for immediate action, not the
long-term remedial solution. Thus, the endangerment assessment
may be much briefer, although the Regions s>nouid attempt to
use as r.ucn available information as feasible. The Action
Memorandum supporting the emergency action will normally be
considered adequate to serve as an endangerment assessment in
support of an enforcement action under $106 of CERCLA for an
immediate response.
Attachment 2 is an aostract of a detailed paper :n "Endan-
germent Assessments for Superfund Enforcement Actions', prepared
by Technical i-ppcrt 5ran.cn, CERCLA Enforcement Division, the
Office cf waste Programs Enforcement (OWPE). This paper,
previously distributed to the Regions, will provide technical
assistance in preparing qualitative and quantitative assessments.-
OWPE is also preparing a handbook on preparation of endangerment
assessments.
Methodologies used for performance cf such aspects cf the
endangerment assessment as exposure and risk assessment should
be consistent witn. the concepts and methods currently in use ov
"?- -ffice cf Research and Development (ORD).
Attachment 3 shows how t.-.e various toxicity, exposure, ani
ns* evaluations are used to define the overall" problems and
hazards 'endange'rm.ent) at a site. Although tne use.of these
evaluations is possible at every site, the need for a detailed
analysis, as outlined, is likely to be appropriate at only a
limited nurser of sites to sufficiently demonstrate an actual
or potential imminent and substantial endangerm.ent.
The Office of Emergency and Remedial Response (CERR) has
developed guidance manuals covering the performance of remedial
investigations and feasibility studies. The chapters listed
below from these documents and the OWPE handbook will provide
guidance in preparing endangerment assessments:
Guidance on Remedial Investi^-. • ~"« Under CSP.C1A (OERR, May 15H 5
Chapter 7 - Site Characterization
Chapter 9 - Remedial Investigation Report Format
Guidance on Feasibility Studies Under CERCLA (OERR, April 1955)
Chapter 5 -'Evaluate Protection of Public Health Requirements
Ha-.db:o< on Preparation cf indangerment Assessments (OWPE -
Technical Support Branch, Vunmer 1985)
-------
Attachr.er.t 4 : s a list cf references that car. be used in
preparation cf the er.za.-.re rr.er.t assessment.
FORMAT
The enda-cer-'ent assessment generally should follow a
standard framewor* as provided in Attachment 5 and use qualitative
and/or quantitative terms as appropriate.
The Action Memorandum will normally be considered adequate
to serve as tne endangerment assessment document in support cf a-.
order under §106 for an emergency action.
The endangerment assessment document may be the order itself
(where the order contains all of the elements of an endangermer.t
assessment) cr a separate document. In deciding whether to
develop a separate document or to include the elements of the
enda.-.gerr.ent sssess-e-t ;- the crder, Regions should consider the
following factors:
1. Are the respo-.s :ble parties more likely to consent to
an order if the endar.gernent assessment is part of the body of
the order, or a separate document?
2. Is the order likely to be issued unilaterally or on
consent? A separate document will, of course/ be more important
•9s
'•.'e strong ly urge that the endangermer.t assessment in support
cf an administrative order for private party cleanup be a separate
document. Where all cf the elements cf an endangerment assessment
are in the RI/FS documents, a separate document may consist simply
cf a brief statement cross-referencing -the appropriate elements
of the RI/FS.
WHO 5HCEI.3 PERFORM AN ENPANGERMES'T ASSESSMENT
The Regions have th* responsibility to assure that endanc/er-
ment *«»«»«m«nts are performed. Th« Regions can draw on technical
exp«rti»« available in their Regional offices, OWPE - Technical
Support Branch, ORD, the Agency for Toxic Substances and Disease
Regiatry (»ee MOU between ATSOR and EPA), and/or contractor
personnel available through the Technical Enforcement Support
(TES) or REM/FIT -and TAT contracts.
Endangerment assessments used to justify administrative
orders or judicial actions issued or filed before development
of the RI/FS should normally be drafted by Regional personnel
with the assistance cf tne TES contractor. The Regions and T£3
contractor also have the lead in preparation of endangerment
assessments for elder cases where an RI/FS has not been complete!.
-------
-8-
If responsible parties elect to perform the RI/FS, they will,
in effect, perform an endangerment assessment because they will
develop many or all of the elements of an endangerment assessr.er.t
as part of the RI/FS. Regions should review the RI/FS wcr^plan to
determine whether information developed as part of the RI/FS will
be sufficient to snow that an imminent and substantial endangerme-.t
-ay exist. Because subsequent enforcement actions will rely or.
the endancer^er.t assessment developed as part of the RI/FS, close
Regional oversight should be given to this responsible party worn.
The authority for determinations of imminent and substantial
endangerrr.ent relating to emergency response actions costing up to
one million dollars has been delegated to the Regions, subject to
the directives issued by the Office of Solid Waste and Emergency
Response. (See Delegation 14-1-A, Selection and Performance of
Removal Actions Costing L'p to 51,000,000 and the Memorandum.
"Waiver cf Advance Concurrence Requirements for Certain Consent
Administrative Orders, Gene A. Lucero, January 3, 1985).
When exercisir.c tr.e authority to determine that an imminent
and substantial endangerment exists for the purposes of taking
enforcement action, the Region must consult with OWPE as.outlined
in the November 30, 1984 Regional Assignment Memo (also see the-
Memorandum "Superfund Delegations of Authority - ACTION MEMORAHDUM',
Howard Messner, April 4, 1984). In contacting OWPE, Regional
staff should be prepared to discuss the details of the endangerment
assessment for each determination. In certain cases involving
complex health and environmental endangerment issues, OWPE may
request a copy cf the draft endangerment assessment for review.
OW?E will complete a review of this- document within 14 days of
receipt, to ensure consistent, timely response.
'JSE CF THIS Gl'ISASCS
The policy and procedures set forth here, and internal
office procedures adopted in conjunction with this document,
are intended for the guidance of staff personnel, attorneys,
and other employees of the U.S. Environmental Protection Agency.
They do not constitute rulemaking by the Agency, and may not be
relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity, by any person.
The Agency may take any action at variance with the policies or
procedures contained in this memorandum or which are not in
compliance with internal office procedures that nay be adopted
pursuant to those materials.
If you have any questions or concerns regarding this suida-.ce,
please have your staff contact Chuck Morgan (FTS-475-6690), Chie:.
of the Environmental Health Sciences Section of OWPE or Linda
Southerlani (FTS-382-2035) of the Guidance and Oversight Srancn.
-------
OS"..1!? * 9251
-9-
•sdiressees:
Regional Administrators, Regic-.s I-X
Directors, Environmental Services Division, Regions I-X
Regional Counsels, Regions I-X
Directors, Waste Yanage.-.enr; Divisions, Regions I, IV, V,
vn, vi i:
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air & Waste Management Divisions, Regions II, VI
Director, Toxics 6 Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
-------
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-------
UNIT ^* XTES ENVIRONMENTAL PROTECTION AGENCY
WA.HINUTON.D.C. ;04»0 OSWER # 9829.0
DEC 2 3 1995
O*'ICf O«
• OLIO WASTC AND f MtHGINC-r M|B»O*l8C
MEMORANDUM
SUBJECT: Policy for Enforcement Actions Against Transporters
Under CERCLA
4,
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
Frederick
Associate
n»»ww «-*wy*.«'ii» bii*. w£ wvmwrib. m
T. Sti.hl ^4^t+*^^J/&Ztf£>
Enforcement Counsel for Waste
TO: Regional Counsels
Regional Waste Management Division Directors
Background
Section 107(a)(4) of CERCLA imposes liability for response
costs on:
•any person who accepts or accepted any hazardous substances
for transport to disposal or treatment facilities or sites
•elected by such person, from which there is a release, or
a threatened release which causes the incurrence of response
costs, of a hazardous substance...*
Substantial controversy has arisen over the interpretation-of
this provision particularly as it relates to interstate common or
contract carriers. The Agency's practice has previously been to
issue notice letters to all transporters. In some circumstances,
civil judicial enforcement actions have named transporters as
defendants prior to a determination of whether they selected the
facility. More recently, the Agency practice has been to bring
suit only against those transporters who have selected the facility
or sit*.
-------
-2-
Transporters involved at many Superfund sites havt argued
that CERCLA was intended to impart liability only when the
transporters selected the facility or site to which the hazardous
substances were delivered. Consequently, those transporters
contend that interstate common or contract carriers, who under
the authority of the Interstate Commerce Commission do not exercise
control of the destination of shipments, are excluded from the
liability provision of $107(a)(4). No judicial opinion has been
rendered to date on the interpretation of this provision.
As part of the responsible party searches, Regional staff
should gather and review all available information related to
transporters and the nature of their involve/sent with the facilty
or site at which the hazardous substances are located. This
review should include all of the common sources of information
such as site records and records from federal, state and local
regulatory agencies. Zn addition, information related to the
transporters should be obtained through $104(e) information
request letters to the owner/operators, generators and to the
transporters. Information request letters, and any subsequent
interviews, should seek documentation as to the source, volume,
nature and location of wastes transported. Regional staff should
also seek to identify through this process the role of the
transporter in the selection of the facility or site.
Notice letters informing transporters of potential liability
under CERCLA will not be issued unless and until the information
gathering process indicates that the transporter may have selected
the site or facility to which the hazardous substance* were
delivered. (However, as indicated above, information request
letters should be routinely sent to all transporters.) Issuance
of notice letters to transporters is appropriate only when
information obtained indicates that the transporter may have
•elected the site or facility.
Similarly, enforcement actions (whether administrative or
judicial) would be brought under $106 or $107 only under the same
circumstance-s. . As a matter of policy, EPA will bring action only
•gainst transporters where information is available which indicates
that the transporter ••elected the site or facility. However, in
the event that information is inconclusive due to a lack of
cooperation from transporters in providing information, EPA may
bring action against any transporter to compel full response to
information requests.
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OSWER * 9831.2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 204CO
MAR i 4 IS66
SOLID «A5TE AND EMERGENCY MES'ONSE
MEMORANDUM
SUBJECT: Reporting and Exchanoe of Information on State Enforcement
Actions at National Priorities List Sites
FROM: J^ Winst'o'n' Sorter
Assistant Administrator
TO: Addressees
Recent developments in the Suoerfund enforcement program
prompt me to personally address the issue of reporting and exchange
of information on State enforcement actions at National Priorities
List (NPL) sites. I recently approved Guidance on funding States
during their oversight of Potentially Responsible Party (PRP)
cond'ict of Remedial Investigations (RI), Feasibility Studies (PS)
and Remedial Designs (RD). Furthermore, the current Suoerfund
revjthorization lanciuane will allow State funding for a variety of
other enforcement activities. These include ""such activities as
oversight of PRP conducted Remedial Actions (RA) , and negotiation,
litigation and other efforts leadina toward private nartv cleanup.
This exoansion of the prooram's funding authorities will inevitably
increase State enforcement actions at NPL sites.
As States expand hh«ir involvement in the Superfund enforcement
program, the Agency's oversight and review of their actions will
become an increasingly important activity. He must ensure that
State enforcement actions at priority sites are conducted in a
manner consistent with Agency procedures and are adequate to allow
for deletion from the NPL. We must also be able to determine, in
addition to a State's enforcement efforts, whether Federal review
and participation is necessary. This can only occur if we are
Reot informed of the progress and major decisions made at these
sites.
CERCLA reauthoriration will also increase the amount of
interaction reauired with States in conducting Federal enforcement
actions. Specifically, the House Bill mandates State participation
in the following areas:
• Applying State standards and permits to on-site and off-site
response actions carried out under Section 106;
* Regulations for State involvement in the CERCLA enforcement
resnonse process; and
• State concurrence of Section 106 enforcement actions.
-------
«9S21.2
-2-
The language in the House Bill is subject to revision. However,
I believe the direction is towards increased State participation
and will continue to be the case even if reauthorization takes
some time to occur. This increased emphasis on State participation
in Federal-lead enforcement actions coincides with our need to
keep States eaually informed and involved in our activities. The
sharing of information needs to be reciprocal if we expect to be
successful in our efforts to seek private party cleanups and NPL
s ite deletions .
As you are aware, on October 2, 1984, EPA and the Association
of State and Territorial Solid Waste Management Officials (ASTSWMC)
signed a joint policy statement establishing a 'framework for
coordinating Federal and State enforcement actions. Among the
many issues recognized as needing to be dealt with in a cooperative
manner was that "sharing of information between EPA and the States
is key to developing a n.ore effective relationship." The policv
also encouraged that States "keep EPA informed of their activities,
including consulting with the Regional office when issues arise
that do not have clear cut solutions." I strongly encourage that
you more actively implement the suggested approach toward sharing
of enforcement information outlined in the policy.
Meanwhile, very little information is currently available
that outlines the national picture of State enforcement actions
at NPL sites. The information must be brought to a level that
assures responsiveness to our own concerns, as well as to Congress
and other interested parties. The Office of Waste Programs
Enforcement (Ov:?E) recently reviewed the Case Management System
(CMS) for information on- State-lead enforcement sites. Of the
157 sites currently listed as State-lead enforcement only 44
have a negotiation activity listing (Removal, RI/FS, RD/RA or
other). Of the 44 sites, 21 are listed as having initiated
negotiations with PRPs to conduct the activity. Of the 21 sites,
only 7 have information on the type of negotiation takina place
(administrative order, judicial action, cost recovery, etc.).
This is also the case for State-lead enforcement RI/FS. The
system records only 5 sites as having obligations for State-lead
enforcement- RI/FS. Furthermore, the system does not provide any
information on the progress in getting these site actions completed.
As an initial step toward getting a handle on State enforcement
actions, OWPE conducted a survey during the recent first ouarter
Superfund'Comprehensive Accomplishments Plan (SCAP) review. The
survey confirmed those sites listed as State-lead enforcement in
your Region, and categorized each site by the type of enforcement
action taking place. I have attached the results of this survey
for your information, and want OWPE to continue using the SCAP
process to keep me informed of these ongoing actions. During the
second quarter SCAP review we may ask for additional information
on these sites. I have attached a list of some additional data
-------
OSWER » 9831.2
-3-
reauirements that could be addressed, and would appreciate any
comments you have on collecting this information. It would also
be helpful if you could identify what information is routinely
collected and exchanced in your Recion.
I also want OWPE to continue working with ASTSWMO and the
National Association of Attorneys General (NAAG) to outline our
future State enforcement information reauirements and the States'
desires on information at Federal-lead sites. I will be calling
on representatives from the Regions to assist in this effort.
Without your active participation and support we will not be
able to realize these long-term goals.
In the meantime, if you have any information to provide or
concerns to address, please contact Jack Stanton (FTS-382-4811)
or Tony Diecidue (FTS-382-4841) of OWPE.
Attachment
Addressees:
Directors, Waste Management Division, Regions I, IV,V,VII,VIII
Director, Emergency and Remedial Resoonse Division, Region II
Director, Hazardous v.'aste Management Division, Region ill
Director, Air and Waste Management Division, Repion VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Recion X
Regional Superfund Branch Chiefs, Regions I-X
Regional Counsels, Regions I-X
-------
OSWER « 9831.2
STATS-LEAD DJFOFONS7T
SITES SlMBRf
-------
OSWER « 9831.2
The following data elements represent a comprehensive list
of information that could be collected on State-lead enforcement
sites. The data is essentially ecuivalent to the information
collected on Federal-lead sites. However/ we will not collect
State-lead enforcement data at the same level of detail. I want
this list to serve as a reference for discussion and would like
to receive your opinions on it.
• Pre-Enforcement
- PRP Search (Start/Completion; Planned/Actual)
- PRPs Identified (Number/Names)
- Notice Letters Sent (Start/Completion? Planned/Actual)
• Enforcement - RI/FS
- Negotiations (Start/Completion; Actual)
- Settlement (Hate)
- Enforcement Actions -- Administrative/Judicial — (Start/
Completion; Actual)
- PRP RI/FS (Start/Completion? Planned/Actual)
- State Enforcement RI/FS (Start/Completion; Planned/Actual)
- Remedy Selection (Hate)
- RI/FS Cost Recovery (Start/Completion; Planned/Actual)
0 Enforcement - RD/RA
- Negotiations (Start/Completionj Actual)
- Settlement (Date)
- PRP RD/RA (Start/Completic- : -. a.-.ned/Actual)
- Enforcement Actions — Administrative/Judicial — (Start/
Completion; Actual)
- RD/RA Cost Recovery (Start/Completion; Planned/Actual)
-------
( nlor
Pr«iOn
Sit* *•••
Code Co*»»nt
• • I
I MA
• NH
I VI
PCB/Gr»nt G*ar
PSC R»«0urc**> Inc.
3,r co»i
F
nrnnii«ii i
(Or (lr««
in-u»rd planning «udr
MPIJ« did r r«o«» I
Pin* St'«*t C«n»l
III
I'l
-l«*«f Cnfnrc«**nt III $
• I* •*wt/«»i FiMMf Mmlval
f»4 Hl/rs • «»||l««»i«l hi
'•it Ml IW - It 11IM* *
twit
/I * • n*«|nl l«t lon»
41Innl
«)
00
CJ
ro
-I-
-------
r cement 5ilr»
n Stata
Sltt *«•»• •
Cod* Coi»w»n|
I' NJ
2 NJ
? NJ
7 Nj
7 NJ
NJ
NJ
Nj
N J
N)
NJ
NJ
NJ
7 NJ
? NJ
7 NJ
2 NJ
? NJ
2 NJ
1 NJ
7 NJ
2 NJ
? NJ
2 NJ
2 NJ
7 NJ
2 NJ
2 NJ
2 NJ
2 NJ
? NT
? NT
2 NT
? NT
2 NT
2 NT
2 NT
2 NT
T NT
2 NT
'i NT
2 NT
2 NT
*/ NT
'i NY
f HI
/ M»
'/ Nt
.' 'It
i1 NT
A«ar lean
Brady He«ai»
Brick ?ow«*hia Landltil
CPS Had i con
C -envoi
Cooler Road
Diamond Alka! i
EvOr Phillip*
f a i r I awn Ua II I 1 a 1 d
For I Oi •
He-cu'e*
Hoa* tn» Far*
Imperial Oil
JIS Larndllll
Jaekton Tonnahia Landfill
LF 1 Develop**"!
Monroe 1 own* hip LandliM
PJP Land! I I I
Pi jack Faro*
Radiation technology
Sayrev.lle Landlill
Shieldal toy
S»*nca Far*
Universal Oi I
Up»ar Ov*r field Landfill
Ventron
Vinelan-d St. School
Ui icon Far-
Uoodland ft S3?
Uoodland Pt 72
Anchor Chaaieal
Claraaont Polrchaaical
Clothitr (PAS Sa««Hit«l
tolavwilla Landfill
Cortaca Landt • I I
FMC -Dublin Road
Fulton faramal (PAS Satrllit*)
Golditc Racordin««
Marital .Land 1 1 1 1
Hookar Otaica I -ffutO Poly*rr
Johnitavn Landlill
K«r.«»rk !•.« i la
LibartK Industrial Fini«f.inq
Ludtou Sand I b>av*l
Mt>rcury Palming
(II rf
V»% I X I
B.E
B.E
H
f
B
F
B.E
A
B
8
o.e
A
A
f
f
r
B.C
F
0
B
A
B.C
C
B
B
B
i S«..» • *
U> I I <• .'
l*r,,H . • I I I 'AS '.«trll>tr>
O
O
0
A
B
0
n
u
u
B
B
B
n
H
M
II
A
AO lor PI/FS I PO. PA dratted - PCPA
AO lor Pl/fS »iqner:
AO lor PI/FS »ii«>ed
AO contested. 1)1 I' in court
AO lor PI/IS * is-ed
Oe I •*! candidate
AO *i«|nrd tor PI/FS - r e»eilv (electm
AO-V»-NJI)IP tundrd cand'.laie
AO PI/FS »iinr<|
3 party aqree»rnt t.ined »o- PI/F5.IEPA.DEP.I Pot))
Negotiation* un NJI'III S peril I
Un I lateral AO lor i»anitnr«nq and finer in*al|atlOn
AO lor PI/FS PO. PA *iqnrd> d*Ii»t candidate
AO lor PO. PA • i^ned
ACO «i*ned PI/FS
AO-fc"» PI/FS
AO tinned PI/FS t cleanup
AO lor PO. PA tinned
AO lor RI/FS dined
AO d>altedi *eltle«ent concluded
AO tinned lor PI/> S
HOU (lined -it" Dent ol Hu»an Service*
A0-fc7 PI/FS candidate- drop dead date 3/31
A0-fc«» PI/• S
AO-V? RI/FS
CO.co-pany bankrupt EPA Mill probably a*(u*e lead
Or dvr • wor fc * n r*r
Na^otialiont on^oi
Na^ol tat iOn« nnqoi
Oi dar i lirld wot I
Sla«a nv^ot iai
Oi rler 1 i ^nril
Of ller »iqneil»
O.rfer *.nied*
m
work
UOr k
liriti un
|l I t»t lr*d (HI RK - trllln I >!•*
h«>*>n tr«> Ivril
ini r»r tr««i mi.'f. • n««ni laiio***
.at tons t»nnn«
III rur l-il HI. •• nr.ioll* -n«
I'l^titieil «il •>n^»*tit
(I I Ull.*-i rnl.i* r rMri.l MI I l.w»
I l»...,r.l -e ..r>.|......|
-------
Stale-Lewd HnI orre»ent Site* 5u«
State
Si te Na«e
Cod* Consent
3 OE N«w Caatle 5a>ill
3 DE N»H Cavtle Ste.el
3 PA ABfl Uede
J PA Brodnead Cr**k
J PA Brown'* Battery Breaking Si I*
3 PA Centre County Kea>one
.1 PA C 11
1 PA Hunt*r«|OMn Road Sit*
.1 "A ft i«b»r ton
3 »*A LI ndan* Ou*p
3 PA Lord S^or* LcndliM
) PA n«lv«m ICE
3 PA Modern Sanitation
1PA OldCltxOl fork
3 PA Otborn* Land*•I I
1 PA R»«in Oitvocal
3 PA SKrlv»r Corner
J PA U«*ttn^Kou** Elevator Site
3 VA U S. I t taniu*
B
B
r
A
A
0
II
A
I)
II
II
I)
A
H
H
U
A
A
r
PRP ea»K out «or
tISCA* 5(»t» pr»p«rin<) uO' V p I »
POP r»lu»»» to do *»>• MO' 1 i Stale
Slate pi epar i «^ un> t plan
no action
MSfA. State p.ep*>*t| w
p Ian
Cod*
OrMnltlnn
M *l/r|
Nf>ftl««l
(HI mr Ir.d »!
Kr»n f^at
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!«>•>. t»».
IDI r*l- !«•.! HI
|-l«nn^>l t«
irl mi- I»A.| HI'.
O
O
If I Itllirt
-------
Sin I P~
St««»
Sit* H»mr
l Or c*»*nt Silr»
lod» Lonarnt
FL
FL
Ft.
FL
FL
FL
CL
f>*
UA
(,A
SC
SC
SC
IN
Ct>«»lcal
Oubos* Oi I
F lor id* St**l
Ka»«ouf-K !••» I in* Bftttvr OI»P
Pratt and USi|n*y
ll .1»t*l* Cor*.
OOt
MontantO
Ot-0. Au«u*l* Plant (!.?.»)
Inc.
Ho»»*r« Co. > Inc.
L*Oti*rd
IN
IN
Nor|K Mo I I rUOOrf Ou»
V*l«ICOl> H«rd«**n
B
f
F
t
H
I
n
B
F
F
B
t
r
B
B
I)
PPP» do in, PI /IS Mi IK no Ord»r
UOrk b»inq
f P|
unrirr PC"*
undrr
no Order
Vo CnforrMMHI Cod««
Co*
1*1
l*-l»»d rnfoic-OTXfit m/T$
I5I«I» «fMl/«fl FMtll Md«ll*al
1*1 mr Iff* *l>r* ••Mlrwnt )>••
tw»*« t»«rh*4f
irl mr ir«.i «./•» . •*m>9>ni in*
twt r'«' *>^«l
ml mr !»•* *l I* - n*otlallo>>«
'— £
OJ
-------
Stale-Lead Eniorcrovnt Sites Supnary
Statt
Sit* Na«»
Code Co"*ent
5 IL 3a>etbur«/Kopp*r* C».
b M| Auanua "E" G W Contamination
S M| Chancantral
^ M| G BrOnaon I ndu« t r I a I Area
•j n| QI «antc Chamcal Inc .
•^ M| Poto Fini«h Co.
S M| SCA Independent Landfill
•3 M| Southweat Ottawa County Landl i II
S MI Sparta Landfill
S II Spartan Chaoical Co.
S Ml Uavta Mana^axant (Holland Laqnon*)
•j MM A^cta Laka Scrapyard
S MN Boita Ca»cad«/Onan/Madtromc«
^ MN ca»t Bethel Demolition Landfill
b MN Freeway Sanitary Landfill
5 MM General Mill«/Henkel Corp
S MM Joalyn Htf. and Supply
S MM Koch Ratinin^
V> MN Koppar Coke
*} MM Kurt Manufacturing Company
S MN NL/faracOrp
S MN Ol.»taad Co. Landfill
S MN Pin* Band Sanitary Landfill
S MN St. Au«u»ta Sanitary Ll/St. Cloud OUPP
S MN St. *a«>* Paper Co.
*} MN Union Scrap
b MN Univerclfy of Minne»Ota (Roteaont)
S MN Wait* Park
S MN Ua«htn«ton County Landfill
S MN Uhittakar Corp.
S MM Windoa Ou«P
S OH Alvco Anaconda
*3 OH Neate Chanical
•3 OH TRW
S OH Zaneavllt* Wallfiald
S Wl Oelavan Municipal Wall No. 4
S Wl Lauar I Sanitary Landf•ii
5 Wl O«a«a Hill* North LandliI I
S Ul Wa«te 'aaearch and Cec'••••» ion
«> wi Wh««itr Pit
B
R
A
t
A
A
B
B
H
U
B
U.
B
B
A
B
A
B
0
8
F
B
0
r
F
F
O
I' CO for Pfmavml : P()/PA
UnrJvl n m i nrrl
Und»« r. •• i
Unrlvtvr ••
Nf'L update
AOC tor I»f1
NPL ii
4trt NPL updata
NPL update
to Ci>f«fr«MM Co*.*
! OtriMtlrt*
-------
n S»»t»
Sit*
Thore nrn m> !^l .it o-l^'.irl Kufdi comoiil
Sites in Ro<|i<>n d.
to tnforc«**ni r
* D*ri«
1*1 Sl«t«-l»*4 tofo
Hl»l» (iHl/nr
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l» « >f«rh».l
iri ^nr »**i >n. p*
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(•I niwtt nt
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| I IMtr«t itf Of
ttt tnt'f «nfotr»M
0! I •>|>MI<
-------
.nlO>
- 5t»l«
7 IA
7 KS
*«f to titlorr
CfwW
1M SI«l«-U
t^lal*
(•I r«» l»«4
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iri rur iva«i
t>**ii f ^
|0t Ml- l*>*1
|>l«i»f»^'l
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Mt/M
.7-
-------
Enlo.
Cod* Co«»«"l
a UT
€•••"! 2 t 3
Mr to InlMriMliI Cntt*
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Ml rnfmr«**«t lit/Ft
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IM
t»i rw
iri
mi r»r
n
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f1! nnvit n
If I (M h»
M
>*>•*«- MlllOXIlt •>••
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M n*4«l III Innt
»««fnff »**nl •<«lw«
.n-
-------
St*t*-Lrarf Color
nt Sit«» Su'»o
Stat*
Sit* Humf
Cod*
9 AZ |9»H Avanua Landfill
9 At Motorola 52nd Straat
9 CA Advancad Micro Oavicv*
9 CA A»pliad Matarial*
9 CA Coa«t Ueed Pratarwin*,
9 CA Fairchltd Ca»ara 1 |n«tru»*nt.
9 (A Fir••ton* flra Manufacturer*
9 CA Haulatt Packard II
9 CA IBM. Ganvral Product* OiuifiO
9 (A Intal Ma«natlC«
f I* Intel Santa Clara 3
9 I. A L i«.uid Gold
9 (.A Loranti Barral 1 Or uo
9 CA Mar lay Coolint loitar
9 CA MonolltHlC M»«Orl»»
7 CA National' Semiconductor
1 CA Preciaion Monolithic
t CA Si«nat tea
9 CA Uiadma
9 CA lKo*»*on-Harward
9 (A Van Uatare 1 Poyvr*
9 CA U»*(in«Kou«a
9 CA loacon Corr/f^ona Poulanc
F
II
A
PRP
Out lor Pl/fS
So. B»y-MS( A/» i I4» /v«t><( /a I I «r na t l «/• analy*'*
'-MSlA/»itv inur^tiq /alternative analy*i«
San Jo»e A
U
A
A
A
jl
B
A
A
A
A
A
A
A
f
A
A
A
So.
So
So.
So.
C;n
jO ,
So.
bo.
So.
So.
So
PHP
So.
So
So
I* inuvttiq /alternative analymi*
IV inuriliq /alternative analy«l*
So. Bey-MMA/»iip invPMi>i /allvinatiuv anal»-»i»
So. Bay-MMA/^iiv i nuv^ i i <| /a I I vr n* I i uv anaiy«>»
MMA/iitv i»»r«ii I i «j /aMvrnatiur analy^l*
•5ii^ /alivrnaiiu* analt>«i*
'» I i ^ /a I I »r nat i \it analyti*
uni lattraI Or dvr
'VI 14 /alt»rnatiu« analy»l»
InuV»I If. /a I t»rnat I«• analyVl*
Bay-MSCA/«itv inur*t14./alternattua analytic
ri«i
in mi- i
Hr «rv1 o,
m/r-t
wi»l
>.. .11 hi
-------
'C»»»nl SltV*
Sitt
Cod* Co««»n»
10
10 UA
10 UA
IU UA
rnc
CVfi
mA Kn
to**«1 Monlccl
• «ril • wnl ha*
111 r»c l»*-l *H MA • nr*»nt (•« inf>4
C
I
-------
L'NITED STATES ENVIRONMENTAL PROTECTION AGENCY
v.ASHJ.NCTON.D.C. 20460
9832*8
MAY 23 1986
MOKITO»I>>C
MEMORANDUM
SUBJECT: Raised Hazardous; Waste Bankruptcy Guidance
FROM: y^RicnarSH. Mays/" x^
^Acting Assistant^ Aorr.inistrator for
Enforcement and Compliance Honitoring
TO: Regional Counsels, Regions I-X
The Agency's recent experience in CERCLA and RCRA bankruptcy
actions has identified the need for updated and revised guidance
on the scope ,of EPA's enforcement actions against bankrupt parties.
This memorandum is intended to update the May 24, 1984 guidance
•CERCLA Enforcement Against Bankrupt Parties" and the guidelines
on bankruptcy contained in the Cost Recovery Handbook "Procedures
f.or Documenting Costs for CERCLA $107 Actions," January 30, 1985.
The memorandum defines specific criteria for evaluating the
merits of a potential bankruptcy referral; elaborates on the
policy regarding settlement with bankrupt parties? reviews the
recent judicial decisions in the areas of the automatic stay,
abandonment, discharge, and claims of administrative expenses;
•nd briefly describes new enforcement theories which have been
asserted by the Agency in recent pleadings.
-------
2
BAN'KR'JPTCY REFERRALS 9832. 8
EPA has referred 22 hazardous substance cases to the
Department of Justice for filing -jnkruptcy actions. After
several years of litigation only two of these cases have resulted
in recovery of funds from the debtor. The current docket of
bankruptcy cases has consumed a disproportionate amount of
attorney resources based on the expected recovery of funds to
the Agency.
Additional scrutiny will be used in evaluating future
referrals from the Regions which include bankruptcy claims.
In all referrals regarding bankrupt parties, the Regions should
include a justification for filing in the bankruptcy action.
The referral justification should be based on at least one of
the following five criteria:
1. EPA is likely to recover at least $5,000
by filing a simple proof of claim as a
general unsecured creditor
Filing a proof of claim is a relatively simple and straight-
forward matter which nay be appropriate whan the Agency has a
claim as a general unsecured creditor, for example in'cases
where the Agency has completed a response action before the
bankruptcy is filed. Where there appears to be sufficient assets
in the debtor's estate */ for a snail distribution to the
I/ Determining the extent of the a,> a in the estate can be
~~ based on the schedule of assets **i out in the bankruptcy
petition, the extent of assets and clains published following
the initial meeting of creditors, the court's bankruptcy docket,
and periodic filings available through the court clerk.
-------
- 3 -
9832.8
government on an unsecured claim, the trustee, debtor, or other
creditors ir.£y well not undertake the trouble and expense to
challenge a dale that does not otherwise threaten the estate.
The chances of such an objection are particularly small where
EPA's claim.is liquidated and CERCLA liability it clear £/. As-
a general rule, a proof of claim should be filed in cases where
EPA does not anticipate that an objection will be raised by the
creditors or the estate end where the filing of a proof of claim
will lead to a recovery of at least SS.OOOj/. In these cases,
the Region should prepare an abbreviated referral package con-
taining the proof of claim, supporting affidavits and cost
documentation and a brief description of the assets in the
debtor's estate.
2. EPA is likely to recover at least $20.000 of
response costs through a more complex bankruptcy
tiling
As a general rule, prospective referrals of complex
bankruptcy actions (such as a request for an administrative
expense priority) that nay lead to recovery of less than $20,000
are discouraged.
21 Under Section 502(a) of the Bankruptcy Act • claim Is deemed
"~ allowed unless objected to. Thus, filing * proof of claim, by
itself, will often not lead to the type of extensive litigation
that has characterized van? of the Agency's bankruptcy cases so far,
3/ If costly obstacles or significant challenges at some point
~" do in fact loom over EPA's proof of claim, the Agency can
always withdraw its claim as * aatter of right prior to the
filing of an objection (Bankruptcy Rule 3006). Even after the
filing of an objection to the proof of claim, EPA can withdraw
its claim, sublect to court approval. As long as the claim was
filed in good faith, a court will be unlikely to deny the with-
drawal of a claim where the government indicates that it is not
in its best interests to pursue the claim.
-------
•A- 9832,8
Assuring a recovery of 520,000 or more, the Region should
set out the extent of the assets in the debtor's estate, the
nuirber and extent of other claims, the status of other creditors
(i.e., secured or unsecured), and the theories of recovery which
will be asserted in the bankruptcy litigation. The Region should
also evaluate the merits of EPA's claims, including the ability
of the Agency to prove its CERCLA $107 claims based on available
cost documentation.
3. The bankruptcy action has significant deterrence
value ~~
Under this justification, the Regions should establish
that the bankrupt party may be seeking to avoid liability
for Superfund cleanup through an unlawful declaration of insol-
vency. The referral should include a discussion of the past
financial practices of the potential defendant and any indication
of misrepresentation or fraudulent transfer of funds. A bank-
ruptcy case may also be an appropriate candidate for referral if
the case is made highly visible to-the regulated community and
will serve as a deterrent to other defendants who may contemplate
using the bankruptcy courts as an obvious shield from potential
Superfund liability to the government ^/. In these cases, the
A/ The government has been successful in dismissing bankruptcy
actions where the government was able to show under Rule 707(a)
or 305(a) that the dismissal was in the public interest. In in
re Commercial Oil (No. 85-01951 Bankr. N.D. Ohio) the Bankruptcy
Court unoVr rule 707(a) direi«»ed the petition in bankruptcy
citing In re Charles George Land Reclamation Trust. 30 B.R. 918
(Bankr. C.t>. Mass. 19S3) which involved a shea bankruptcy filing
in *n attempt to avoid Superfund liability.
-------
9832.8 " '
Pegion should attempt to estimate the extent to which the costs
of litigation may be recoverable.
4. Equitable treatment of all responsible parties
In some circumstances the Kegion may wish to refer a case
against a bankrupt party In the interest of equity and fair
treatment of all parties. For example, it may be appropriate
to pursue the bankrupt owner or operator of a facility who
contributed significantly to the creation of the hazard,
particularly in connection with a settlement with other viable
responsible parties. In most cases, the Region should not
consider a referral against bankrupt generators or transporters
unless the case meets the criteria set out in justifications
1 or 2.
5. Favorable precedent or tactical litigation considerations
In rare cas^s 'there may be an overriding Interest In
pursuing a bankrupt party for the purposes of obtaining an
Important and favorable precedent £/ or where there are tactical
litigation issues relating to other actions in which the Agency
is involved ^/.
5/ There may be eases where even chough the potential recovery
~~ is small, there is good opportunity to develop the law in
the area of environmental bankruptcy litigation. Moreover,
cases where the Agency's claim it small may present the best
factual situations for developing our legal arguments. For
example, courts say be more willing to grant an administrative
expense priority when the size of EPA's claim is email and will
not keep other administrative claims from being paid.
6/ For example, filing a proof of claim »ay be a useful mechanism
~ to insure that the United States receives copies of relevant
pleadings filed In the bankruptcy and has access to participate
in whatever discovery is conducted in the bankruptcy proceeding.
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9832,8
MULTIPLE CLAIMS
In several cases, the Regions have referred bankruptcy
cases which address one claim against a debtor, but which do not
mention other, sometimes unrelated, potential claims that may
involve the same debtor. For example, referrals for the recovery
of funds spent in an immediate removal nay also have potential
claims for CERCLA remedial action or RCRA corrective action.
There can be conflicts in how the Agency would want to proceed
on the various claims. Accordingly, it is essential that the
full extent of all potential EPA claims against a debtor be
disclosed to the Department of Justice before any formal action
is taken in the bankruptcy. All litigation reports prepared by
the Regions for bankruptcy cases should summarize all known and
potential claims that EPA ttay have against the debtor.
SETTLEMENT VITP BANKRUPT PARTIES UNDER CERCLA
The Agency's settlement policy jj/ states that it nay be
appropriate for the Regions to enter Into negotiations with bank-
rupt PRPs even though an offer nay not represent a' substantial
portion of the costs of cleanup. The policy further states, that
the Regions should avoid becoming involved in bankruptcy proceedings
It "Interim Hazardous Vaste Settlement Policy" Vol. 50, No. 24
~ Federal Register (February 5. 1985) 5034-5044. See discussion
at IT! Management Guidelines for Negotiation, clainsTn bankruptcy
Id. at 5036.
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9832,8
if there is little likelihood of recovery, and should recognize
the risks of negotiating yithout creditor status. In general,
the Regions have been given broad authority to settle with
bankrupt parties.
When a -Region elects to settle with a bankrupt party the
following five options should be considered:
1. Confession of Judgment
In United States v. Metate Asbestos Corp. et al.. No. 83-
309-GLO-RMB (Order of July 12, 1985) the court approved the
entry of a consent decree and civil judgment against certain of
the defendants in bankruptcy for $7,085.000. The order granted
iudf»TT>ent jointly and severally in the District Court proceeding
in settlement of clairas against the bankrupt parties. In this
case, due to the extremely limited asset* of the bankrupt
individuals, it is doubtful that the United States will recover
a substantial portion of the $7 million. This form of settlement
(i.e., a confession of liability and judgment) is only encouraged
in a Chapter 11 reorganiration action where a specific provision
for enforcement of the Judgment is tec out in the confirmed plan
of reorganization. £/
8/ Unless otherwise provided for in Che plan of reorganization,
"" the confirmation of the plan discharge* the debtor from
all debts arising before the date of confirmation, 11 U.S.C.
11141 (d)(1). In addition, 11 U.S.C. I524(a) provides that
a discharge voids judgments on discharged debts and enjoins
any legal action to collect such debt* from the debtor or the
property of the debtor.
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. 8 - 9832,8
2. V?ritten agreement with trustee and other creditors
regarding satisfaction of claim with Tppropriate
reservations
It is also possible for the Agency Co enter into an agree-
ment with the trustee for the debtor regarding a future payment
of funds upon dissolution of the estate. For example, in one
case in the Northern District of Florida the Agency is contem-
plating entering into a stipulation with the trustee and the
mortgage holder on the contaminated property. As a condition of
settlement, EPA will agree to release the debtor from liability
and allow the cleaned up property to be sold or leased. EPA and
the mortgage holder would split the proceeds from the sale or
lease of the property thereby recovering a substantial portion
of the Agency's cleanup costs.
In a second case, in the Eastern District of North Carolina,
the Agency is considering entering into a similar arrangement.
The d*»btor-in-possession has submitted a liquidation plan of
reorganization in which the debtor agrees to retain title to the
contaminated property during the EPA cleanup. When the cleanup
is completed, the debtor will tell the property. The proceeds
will go first to cover administrative expanses involved In the
tale and then co EPA for reimbursement of response eostt. EPA
has requested that language be Included In the plan which pro-
tectt the right of EPA to recover against the debtor's insurance
companies.
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- 9 -
9832,8
3. Aereerent with trustee regarding pro rata
distribution of assets'
Pending a final accounting, EPA may agree with the trustee
to a pro-rats payment of our claim in bankruptcy. In In re
Crystal Checical Corpany. No. 81-02901-HB-4 (Bankr. S.D. Texas),
EPA entered into a stipulation with the trustee for a pro rata
payment of cleanup costs after liquidation. The stipulation was
reached after a four day presentation of evidence to the bank-
ruptcy court where EPA was seeking an immediate payment of fund-s
for the ongoing cleanup.
4. Settlements contained in the reorganization plan
A Chapter 11 reorganization plan i» * type of settlement
document. Reorganization plans can be used to set forth
various settlement-type provisions that are in the Agency's
interest. For example, in In re Thomas Solvent Co.. NK 84-00843
(Bankr. W.D. Mich.), the Second Amended Plan of Reorganization,
which was confirmed by the court, Included, at the government's
insistance, provisions relating to preserving claims against
liability insurers and provisions relating to restrictions on
transfer of contaminated property. Other appropriate provisions
in such plans Bight be provisions on access to property and
retention of records. The Agency should insist on this type of
provision in cases where a plan cannot be confirmed without our
concurrence.
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- 10 -
9832,8
5. Settlffrgnt with other creditors.
In some cases, other creditors will be a party to a settlement
between FPA and the debtor. For example, in In re Thomas Solvent
Co.. NK 84-008O (Bankr. VI.D. Mich.), there Is approximately
5350,000 available for distribution to creditors. The significant
creditors are EPA, the State of Michigan and two residents groups
with health claiiss. F.PA, the State and the two groups have
filed multi-million dollar claims. We are presently finalizing
a settlerent arrong these creditors and the debtor which will
provide for the distribution of the $350,000. One primary
benefit of such a settlement Is that it avoids the need for time
consuming and expensive litigation In bankruptcy court among
creditors damaged by the same activities, and will allow us to
devote our full resources to pursuing a coat recovery action
against other responsible parties.
There are numerous other options for settlement, and
for documentation of settlement, vith a bankrupt party,
including those used to resolve non-bankruptcy proceedings
under CERCLA. Although Headquarters will be flexible in
reviewing these settlements, it is important that the Regions
consult vith Headquarters and the Department of Justice before
entering into final negotiations vith a bankrupt party. An
abbreviated referral of the bankruptcy aettleaent agreement is
acceptable.
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9832,8
JUDICIAL DEVELOPMENTS
Since the May 24, 1984 guidance was issued regarding CERCLA
enforcement againt bankrupt parties, there has been an increase
in judicial activity in the area of environmental bankruptcy
actions, particularly in cases involving hazardous waste sites.
In addition to several significant District Court and Appellate
Court decisions, the Supreme Court has issued two significant
rulings in this area in Ohio v. Kovaes, 105 S. Ct. 705 (1985),
and Midlantic National Bank v. New Jersey Department of
Environmental Protection, 54 U.S.L.W. 4138 (U.S. Jan. 27, 1986)
("Quanta Resources').
1. Au.tonatic Stays
Several courts have adopted the Agency's interpretation
that the automatic stay provision of section 362 of the
Bankruptcy Code does not apply to actions taken by a govern-
mental unit to prevent environmental harm. In Penn Terra
Ltd. v. Department of Environmental Resources, 733 F.2d 267,
274 (3d Cir. 1984), the court htld that actions taken to
"rectify harmful environmental hazards" were an obvious
exercise of the Stabe's authority under the police power and
therefore were exempt.from the automatic stay. The Supreme
Court, in a footnote to the Kovaes decision, suggested that
Penn Terra may be applicable to hazardous waste cleanup actions,
105 S.Ct. 705, 718, n. 11.
A recent CERCLA decision regarding the Film Recovery
site in Illinois was also favorable to the Agency on the issue
of the automatic stay, United States v. B.R. MacKay t Sons Inc.,
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" 9632,8
ec_al_1, No. S5-C-6925 (N.D. 111.. Jan. 17, 1986). In the McKay
decision the court held that CERCLA cost recovery actions fall
squarely within the governmental enforcement exception to the
automatic stay. Id. at 7.
Other'recent decisions indicate a split of authority on the
issue of whether the automatic stay applies to enforcement actions
brought pursuant to CERCLA. In United States v. ILCO. 48 B.R.
1016 (N.D. Ala. 19*5), EPA asserted claims pursuant to RCRA
$3008, CWA 5§301 and 309. and CERCLA 1106. The Court's decision
in the ILCO case stated clearly that the CERCLA 5106 claims were
exempt from the automatic stay because the government's complaint,
which sought a court order compelling ILCO to remedy environmental
hariT!, constituted an equitable action to prevent future harm,
rather than an action to enforce a sioney judgment. Recognizing
that the debtor would have to expend funds in order to satisfy
the requested mandatory relief, the Court indicated that
compliance with environmental laws is of greater importance than
the rights of the creditors. The ILCO decision cites Penn Terra.
733 F.2d 277 and Kovaes in support. See also. In the Matter cj
Hildeman Indus.. Inc. (Bankr. N.D. N.J. Dec. 17, 1984) (dioxin
a ampling taken pursuant to an administrative order falls within
the enforcement of the police or regulatory powers of 4
governmental unit). But see. In re Thomas Solvent Co.. Bankr.
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" 9832.8
L. Rep. (CCC) 170,111 (Bankr. W.D. Mich. 1984) (automatic stay
held applicable to Michigan's attempt to enforce a pre-bankruptcy
cleanup injunction).
Enforcement actions brought pursuant to the Resource
Conservation- and Recovery Act and its applicable regulations
have also been found to be exempt from the automatic stay in
most of the recent decisions. The Bankruptcy Court in In re
Wheeling Pittsburg Steel Corp.. ct al.. v. United States
Environmental Protection Agency and Ralph W. Siskind,
No. K5-793 (PGK) No. 85-0236 (Bankr. W.D. Penn. Oct. 31, 1985),
granted the United States' motion to dismiss the complaint
to enforce the automatic stay. In that decision, the court
held that the United States can: 1) proceed to enforce RCRA;
2) seek to determine the existence of any violations of RCRA;
3) seek to rectify those violations; aind 4) seek the entry of a
money judgment on any penalties assessed (but cannot seek to
enforce such judgment without an order from the court).
Similarly, on appeal to the U.S. District Court for the
Western District of Texas from the Bankruptcy Court, in In
the Matter of Commonwealth Oil Befitting Co.. Inc.. Offieal
Committee of Unsecured Creditors and the Indentured Trustee v.
United States Environmental Protection Agency, No. SA 85-CA-2045
(W.D. Texas, Nov. 5, 1985). the court held that an EPA enforce-
ment action to require a debtor to comply with RCRA's Part B
requirements was an exercise of the Agency's regulatory power,
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- 14 -
9832 8
and thus excepted from the automatic stay under 11 U.S.C. '
§362(b){4). The court stated that the expense which the debtor
will incur to conply with environmental laws does not convert
into an enforcement of a money judgment which would be auto-
matically stayed, slip op. at 3. See also, United States v.
ILCO, 48 B.F". 1016, 1021, 1024 (N.D. Ala. 1985); In re Bayonne
Barrel and Drum Co., Inc_. , No. 82-04747, slip op. at 1 (D. N.J.
July 17, 1984). But see, In re Professional Sales Corp., 48
B.R. 651 (Bankr. N.D. 111. 1985), rev'd 56 B.R. 753 (N.D. 111.
1985).
There is also sane authority to suggest that the collection
of a civil administrative fine or penalty is an exercise of the
government's regulatory power, and therefore is exempt from the
automatic stay provisions, United States v. Energy International
Inc., 19 BR 1020, (S.D. Ohio, 1981).
2. Abandonment
In Midlantic National Bank v. New Jersey Dept. of
Environmental Protection, ("Quanta Resources") 54 U.S.L.w. 4138
(Jan. 27, 1986), the Supreme Court held that "a trustee may not
abandon property in contravention of a state statute or regula-
tion that is reasonably .designed to protect the public health or
safety from identified hazards." The Court qualified this holding
by stating that this exception to the abandonment power would not
apply if the state statute did not address an "imminent and
identifiable harm" or if the violations alleged were "speculative
or indeterminate future" events. !£. at n.9. The Court left
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- 15 -
< , v 9832,8
open tne question of whether trustees oust comply with health
and safety lavs no matter how "onerous" their provisions. However,
the Court did stive sowe clue when it described security fencing,
drainage and diking repairs, sealing deteriorating tanks, and
removing explosive agents as "relatively minor ateps." Jd. at
n.3.
Prior to the Supreme Court'* ruling, abandonment decisions
in the lower courts were mixed. Compare. In re T.P.Long Chemical
Inc.. No. 581-906 (Bankr. N.D. Ohio, Jan. 31, 1985) (the trustee
was denied permission to use abandonment to avoid CERCLA liabil-
ities) with, Catarount Dyers, 13 B.C.D. 321 (Bankr. D. Vt. 1985)
(abandonment of contaminated property allowed); In re Union
Scrap 7ro^ and M»tel. 13 B.C.D. 29 (Bankr. D. Minn.. 1985 (same)).
3. Discharge
The Supreme Court recently addressed the issue of whether a
bankruptcy discharge relieves the debtor from fulfilling
environmental duties that nay have arisen prior to filing the
petition in bankruptcy. In Ohio v. Kovacs. 105 S. Ct. 705
(1QR5) the Court stated that a pre-petition injunction for cleanup
of the Chen Dyne hazardous waste site is a diachargeable debt
where the debtor had been dispossessed of the property and hence
the State was.seeking nothing more than payment of aoney for
the cleanup. However, the Kovses decision noted that an
affirmative injunction not to bring waste to a site (which would
not involve am expenditure of noney) was not • dischargeable
debt. The Agency has taken the position that the Kovacs ruling
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- 16 -
9832,8
should be applied only to those sites where the debtor is no
longer in possession or control of the contaminated property.
An equally narrow interpretation can be made of the decision
in In re Robinson, NO. 84-404-BK-J-GP (Bankr. M.D. Fla.
Feb. 4, 1985), rev'd. (A pre-petition injunction to restore
marshland which the debtor had illegally excavated was also held
to be dischargeable even though the debtor was not dispossessed,
because the restoration project would have required an expenditure
of money and was not an affirmative injunction. In contrast,
EPA enforcement actions or cleanup compliance orders could be
characterized as an affirmative injunction).
4. Recovery of Response Costs - Administrative
Expenses
The Agency has successfully argued that the EPA's response
costs are necessary to preserve the estate of the debtor and
should be accorded the priority allowed for administrative
expenses, In re T.P. Long Chemical Inc., No. 581-906 (Bankr.
N.D. Ohio, Jan. 31, 1985). In the T.P. Long case, the
Court held that the estate was a liable party under CERCLA
$107 and that the CERCLA liabilities of the estate were
entitled to priority treatment as an administrative expense.
Kovaes 105 S.Ct. at 711-712.
The Supreme Court's decision in Midlantic Bank nay be read
to support the holding in T.T. Long that CERCLA liabilities
of the estate are administrative expenses. Although the Court
attempted to reserve the administrative expenses question, the
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9832,8
implication of the Court's holding that trustees must comply
with health and safety laws is that such compliance is an
"actual, necessary cost and expense of preserving the estate."
11 U.S.C. $503(b)(l)(A). See also, In the Matter of Thomas
Solvent Co., No. NK-84-00843 (Bankr. N.D. Mich, Jan. 2, 1986)
(court order requiring construction of a fence on contaminated
property owned by the debtor stated that cost of construction is
an administrative expense pursuant to $503(b) of the Bankruptcy
Code); In re Geucier Paesche fc Frey Co., (Bankr. E.D. Wise.)
(cleanup costs are administrative expenses); In re Laurinberg
Oil Co. , Inc. , No. B-84-00011 (M.D. N.C. Sept. 14, 1984)
(expenses incurred to abate violations of state water pollution
laws are administrative expenses); but see, Southern Railway
Co. v. Johnson Bronze Co., 758 F.2d 137 (3d Cir. 1985) (in the
absence of fraud, purchaser of property from the debtor does not
have claims against the bankrupt's estate for the costs of
cleaning up the site); In re Charles A. Stevens, 53 BR 783
(Bankr. D.C. Maine, Oct. 9, 1985) (costs for investigation of
waste oil contamination were found not to be an administrative
expense and constitute only a general, unsecured claim against
the debtor's estate); and In re Wall Tube and Metal Products
Co., N6. 3-84-00278 (Bankr. E.D. T«nn. Jan. 17, 1986), appaal
pending (environmental response costs incurred by the State of
Tennessee did not constitute administrative expenses).
An important First Circuit decision which may have applica-
bility in the recovery of CERCLA penalties frcro bankrupt parties
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" 9832,8
is the case In re Charlesbarsk Laundry, Inc., 755 F.2d 200
(1st. Cir. 1985), which held that a State fine assessed for
violation of a preliminary injunction is properly an adminis-
trative expense.
Governments have also been successful in recovering cleanup
costs through property liens. In In re Berg Chemical Co., Inc.,
Case No. 82-B-12052 (Bankr. S.D. N.Y. July 9, 1984), the City
was granted a superpriority lien against the property to clean
up chemical wastes. But see, In re Charles A. Stevens 53 BR 783
(Bankr. D.C. Maine Oct. 9, 1985) (the State's pre-bankruptcy
investigation costs did not give rise to a lien against the
property).
5. Federal Lien
The proposed CERCLA reauthorization legislation establishes
a federal lien on property belonging to persons otherwise liable
for costs and damages under CERCLA. (Amendments to CERCLA 5107).
The Senate bill provides that the lien is not valid against the
purchaser, holder of security interest, or judgment creditor
until notice of lien .is filed in the State where the property is
located. The House bill provides that the Agency's lien would
be subject to the rights of purchasers* judgment lien creditors,
or holders'of security interests under State law until notice of
lien is filed. The House version also establishes a maritime
lien applicable to vessels.
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- 19 -
9832,8
MFNT THEORIES
There have been several new enforcement theories developed
by the EPA Regional Offices, the Department of Justice and the
Office of Enforcement and Compliance Monitoring in the area
of environmental enforcement against bankrupt parties. Two of
these legal theories nay be particularly useful in the cases
involving insolvent hazardous waste handlers.
1 . Withdrawal of Reference to District Court
In deciding whether a bankruptcy court is the appropriate
forum there are two issues which are relevant: whether the
proceeding is a core proceeding under Section 157(b) and, if
so, whether Section 157(d) applies.
The bankruptcy courts have the authority to render final
decisions on all core proceedings listed under the bankruptcy
code. However, both core and non-core proceedings, such as
factual determinations of liability for environmental damages,
tnay be referred to the federal district court. Pursuant to
11 U.S.C. $l57(d) the district court is required to withdraw
a natter from bankruptcy court when it* resolution will involve
consideration of the bankruptcy code and other federal statutes
regulating organitations or activities affecting interstate
commerce.
In United States v. ILCO. Inc.. 48 Bankr. Rep. 1016 (N.D.
Ala., 1985), the district court held that Section 157(d) applied
to, and required withdrawal from the bankruptcy court of, claims
asserted by EPA under CERCLA and other environnental statutes .
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- ->o - 9832.8
The court found that CERCLA and the other environmental statutes
relied on were "fclearly.. .rooted in the commerce clause and
are the type of laws Congress had in nind when it enacted the
mandatory withdrawal provision." Id. at 1021. The court in ILCO
clearly sta'ted that withdrawal was only appropriate if the resolu-
tion of the claim required substantial and material consideration
of CERCLA; not that the CERCLA issues were "merely incidental"
for resolution of the matter. See also, briefs filed by the
government in In re Johns Manville Corp. . No. 85-6828(A) (S.D.
N.Y. Dec. 30. 1985).
Seeking withdrawal froa the bankruptcy court to the
district court will allow the Agency a more favorable forum
which is experienced in hearing complex issues of fact, and
will allow the Agency to. obtain a judgment enforceable in the
bankruptcy court.
2. Discharge of Debts
All pre-petition debts are automatically dismissed when
the debtor is granted a discharge in bankruptcy, 11 U.S.C.
*727(b), 11 U.S.C. 1502, 11 U.S.C. II141(d)(1)(A). The definition
of a pre-petition debt includes any action where a claia or
where a potential claim existed befor* the debtor filed for
bankruptcy (i.e. where a creditor could have aued or could have
filed a proof of claim). Discharges art available in individual
bankruptcies (I727(b)) and in Chapter 11 reorganisations
(51U1(d) (1) (A)*. They are not available in corporate or
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- 21 -
9832,8
partnership Chapter 7 proceedings, or in Chapter 11 liquidations
(S1U1(d)(3). This raises three questions for the Agency:
1) what type of bankruptcy proceeding is involved? 2) when did
the debt arise? and 3) is the debt subject to discharge?
First, _if the Agency did not incur response costs at a site
prior to the bankruptcy filing, the Agency nay wish to argue
that the debt (or potential debt) did not arise until after
commencement of the bankruptcy action. The Agency nay then
preserve its right to pursue an action against the party after
discharge. However, a discharge in a Chapter 11 proceeding may
be read broadly to include all claims that arose pre-confirmation,
*11£1(d). The issue of the proper treatment of post-petition,
pre-confiroation clairos is currently being litigated by the
Agency in the action against Johns Manville at the Iron Horse
Park site in North Billerica, Massachusetts, In re Johns Manville
No. *5-6828(A) (S.D. N.Y. Dec. 30, 1985).
It &ay be advantageous in a Chapter 7 liquidation case for
the Agency to argue that the CERCLA cost-recovery claim "arose"
pre-petition, when the environmental harm first occurred or was
discovered, even though response costs were not incurred until
after the petition. This Is due to the fact that the debtor
does not survive the bankruptcy and therefore recovery during
liquidation of tht estate, as a pre-petition creditor, Is EPA1 a
only chance for recovery.
Second, if the debtor is an individual, or corporation or
partnership under Chapter 11 Reorganisation, the Agency nay with
to take the position that even if the debt Is a pre-petition
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- 22 -
9832*8
debt, EPA's claiis is not subject to discharge because it falls
under one of the stated exceptions to discharge set out in 11
U.S.C. 5523(a). The exceptions that would be applicable are
those which apply to fines or .penalties payable to and for the
benefit of a governmental unit, 11 U.S.C. I523(a)(7), or for
willful or malicious injury to property, 11 U.S.C. §523(a)(6).
In cases of misrepresentation by the debtor, the discharge can
also be blocked by: proof that the debtor made fraudulent
statements regarding its financial condition; failure by the
debtor to produce books and records; or failure by the debtor
to explain losses, 11 U.S.C. !523(a).
CONCLUSION
Future CERCLA bankruptcy referrals will be carefully
reviewed by Headquarters to determine if the action merit*
referral to the Department of Justice under the five criteria
set out in this guidance. Settlement with bankrupt responsible
parties is encouraged and, consistent with the Agency'a current
settlement policy, the Region is given greater flexibility and
authority to ««ttle claims against bankrupt parties. Recent
Judicial decisions and enforcement theories developed by EPA and
the Department of Justice will strengthen the Agency's legal
position In those cases where the Agency has decided to pursue
•n enforcement action against a bankrupt party.
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• 23 - 9832,8
IMPLEMENTATION
This guidance updates the procedures contained in the
existing bankruptcy and cost recovery policies. All future
hazardous waste bankruptcy referrels and settlements should
follow this guidance. If you have any questions concerning
these procedures please contact Heidi Hughes of ny office
(FTS 382-2PA5).
cc: F. Henry Habicht II
David T. Buente
Gene A. Lucero
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9832.5
cotr.plaint (particularly the prayer for relief regarding costs)
is broad enough to include indirect costs. /«
For those cases where indirect costs for past activities
will not be sought (i.e., those cases that meet the criteria
delineated aoove), the Region should notify tne defendants at
the next appropriate opportunity, but no later than July 30,
1986, that indirect costs associated with Agency activities
undertaken after that date will be included in the Agency's
demands. The defendants should also be notified, where
appropriate, that all indirect costs will be sought if the case
proceeds to trial.
Of course, all new CERCLA Section 107 referrals must seek
indirect costs. Accordingly, cost recovery complaints filed in
new cases should include indirect costs as part of the total
amount sought and CERCLA demand letters must include indirect
costs as a portion of tne total demand made upon potentially
responsible parties.
If you have any questions or. this policy, contact
David Van Slyke (OECM-Waste) at FTS 382-3082 or Janet Farella
(OWPE) at FTS 382-2034.
cc: Vincette Goerl, FMD
David Buente, DOJ
/* Depending upon the posture of the case, it may be possible to
amend the complaint to include a request for indirect costs.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
FB 12
OSWER Directive Number 9835.4
MEMORANDUM
SUBJECT:
Interim Guidance: Streamlining the CERCLA
Settlement Aecjjsion Process
FROM:
TO:
J. Winston" Porter
Assistant Administrator
Office of Solid Waste a^id Emergency Response
1 J| a i ^ • *-^-*>-'>Vir<-.
Thomas L. Adams, Jr.
Assistant Administrator H\r Enforcement
and Compliance Monitorii
Regional Administrators, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
During the Administrator's Superfund Implementation Meeting
of November 19-20, 1986, several concepts were presented for
streamlining and improving the CERCLA settlement decision process.
Those concepts addressed three major areas:
1. Negotiation Preparation;
2. Management Review of Settlement Decisions; and
3. Deadline Management.
The purpose of this memorandum is to set forth those concepts in
greater detail and to define the roles, responsibilities and
procedures necessary to implement this important initiative.
BACKGROUND
Und«r CERCLA, EPA1s goal has been and will continue to be to
maximize the number of sites which can be cleaned up. Congress
clearly indicated their support for this goal in th« Section 122
settlement procedures of the Superfund Amendments and'
Reauthorization Act of 1986 (SARA). That goal requires constant
review of old policies and development of new measures which
promote privately financed response actions.
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OSWEP Directive Number 9835.4
-2-
Clearly, one important measure to encourage settlement is to
maintain aggressive use of Section 106 administrative and judicial
enforcement authorities to compel private party response (see
Porter/Mays memorandum "Use of CERCLA 5106 Judicial Authority-short
Term Strategy", dated July 8, 1986). The Office of Solid waste
and Emergency Response (OSWER) has recently amended aspects of
the Superfund" Comprehensive Accomplishments Plan (SCAP) to offset
some of the attendant project delay due to CEPCLA Section 106
litigation. Regions may now request funding for remedial design
(RD) for enforcement lead sites concurrent with their referral!
This approach not only minimizes the tine where no site action
proceeds, but also puts the government in a stronger position at
trial. Regions would be expected to pursue the litigation to
completion absent extraordinary circumstances or compelling
public health concerns.
Congress recognized the value of enhancing the settlement
process in enacting SARA. The provisions for Section 122 are
based in large part upon EPA's Interim CEPCLA Settlement Policy
(50 FR 5034)"and are designed to increase potentially responsible
party (PRP) participation"in response actions. The new provisions
related to special notice, information sharing and neootiation
mcratoria are particularly important. They attempt to strike a
balance between the competing demands of prompting more settlements,
conserving limited government resources, and minimizing the delay
in the clean-up process.
Additionally, our experience in the last six years has
shown us that the way in which we manage other parts of the
settlement process can also have dramatic effects on the chances
for successful negotiations. For example, setting deadlines too
tightly can destroy the willingness'of PRPs to attempt to settle.
On'the other hand, prolonged and inconclusive negotiations can
seriously delay response actions at a site. Based on our
experience, and comments from the Regions and other parties
involved in the process, the Agency has concluded that there are
three areas, in addition to the matters covered by SARA, where
certain changes will help improve and streamline our process for
conducting settlement discussions:
• Negotiation Preparation;
• Management Review of Settlement Decisions; and
• Deadline Management.
Before describing these changes in the sections which follow,
a brief description of the problems that have been encountered
will help to explain why this guidance has been prepared.
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OSWER Directive Number 9835.4
-3-
There are two kinds of problems sometimes associated with
negotiation preparation; instances where EPA does not fully
prepare itself for negotiations and instances where EPA does not
facilitate the preparation of PRPs. Negotiations are occasionally
begun without the benefit of government proposed settlement
documents (e.g., a draft consent decree and technical support
documents). Ideally, negotiating teams should have a strategy
for settlement which addresses goals, interim milestones for
continuing negotiations, firm schedules and followup steps in the
event settlement is not achieved. When EPA does not adequately
plan, it is difficult for the government to live up to its
responsibilities in moving discussions towards conclusion.
Perhaps more important, though, are the issues related to
our support of the PRP preparation process. PRPs at Superfund
sites are often facing multi-million dollar liability. There are
generally many of them (sometimes hundreds) and our success in
negotiations is greatly influenced by the extent to which the
PRPs have the time and information to organize themselves. Our
occasional failure to give early notice or to provide adequate
information (including draft settlement documents) to PRPs has
been clearly counterproductive. Conversely, in those instances
where notice has been.given early in the process, substantial
information has been made available and where EPA has assisted
in the formation of steering committees ' (with or without third
party assistance), we have been much more successful in settlement
efforts.
Prompt conclusion of some negotiations has also been
occasionally hampered by breakdowns in EPA1* management review
of settlement decisions. Superfund settlements have frequently
posed issues which are difficult either because of their prece-
dential nature or the sheer magnitude of the clean-up. Delayed
decisions often affect the willingness of PRPs to settle and
always impair the credibility of the negotiating team. When
delays have occurred, they are generally attributable to several
factors.. In some instances, negotiating teams did not raise
issues to management early in the process, and decisions ultimately
are forced by crisis. In other cases, decisions seemingly can
be made only by the highest levels of Headquarters management.
The relative inaccessability of those decision-makers to decide
on critical issues in a timely way has sometimes been a major
impediment to settlement.
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OSWER Directive Number 9835.4
-4-
The third problem area in the settlement process relates to
managing deadlines for negotiations. in recognition of the fact
that these are multi-party negotiations over complicated legal
and technical issues, a reasonable opportunity should be provided.
However, guidelines must be established for bringing closure to
issues so as net to excessively delay the clean-up at the site.
At times, decisions are made to extend negotiations based on a
showing of some subjective "progress", even where there is no
concrete result to show for that progress. Decisions are sometimes
made to continue negotiations based on concerns over future cost
recovery actions.
In order to substantially improve the CERCLA settlement
process, attention must be given to solutions for each of the
three areas discussed above. The framework set forth herein is
intended as a major first step in that direction. However,
refinement and modification of these steps will be considered
based on your comments and experience gained in the coining months.
SETTLEMENT PROCESS IMPROVEMENTS
Negotiation Preparation
Regions should improve negotiation preparation through four
activities:
1. Earlier, Better Responsible Party Searches
2. Earlier Notice and Information Exchange
3. Initiating Discussions Earlier
4. Preparation of a Strategy and Draft Settlement Documents.
The PRP Search is the first step in the settlement process
and is one of the most critical to success. Regions must pay
close attention to both the timing and quality of the PRP search
since inadequate information on the identity of PRPs and their
contribution* can be a significant impediment to the PRPs
organizing themselves to present an offer of settlement. Guidance
and targets established under the SCAP now require that PRP
searches be initiated concurrent with the Expanded Site
Investigation or National Priorities List (NPL) scoring quality
assurance process* PRP searches are required to be completed
not later than the year in which the site is proposed for the
NPL. Contractor efforts should be supplemented by issuance of
information request letters or the use of administrative subpoenas
(a new provision of SARA) at the earliest possible time. It is
imperative that these searches be comprehensive and of high
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OSWER Directive Number 9835.4
-5-
quality. That places a heavy responsibility on Regional staff
to provide direction to and review of contractor efforts. In-
house civil investigators will be hired and available to Regions
this year to assist in this effort, in addition, Headquarters
staff from both OSWER and the Office of Enforcement and Compliance
Monitoring (OECM) will revise the the "Potentially Responsible
Party Search Manual" as well as present a training program
for Regional staff and contractors on the conduct and review of
PRP searches. That training should be initiated late this year.
In the meantime, Regional staff should carefully evaluate the
adequacy of PRP searches for sites scheduled for fund obligations
or judicial referral during FY 87 and early FY 88 to determine
whether supplemental work is necessary.
Regions should give notice to PRPs of their potential
liability through the traditional notice letters at the earliest
practicable time and, in all cases, well in advance of initiating
the negotiation moratorium. This is not to be confused with the
Special Notice which triggers the moratorium as described in
S122(e). (Guidance on Special Notice and the moratorium is forth-
coming.) It is not acceptable to postpone issuing notice until
only the minimal time for negotiations remains prior to obligation
of funds. Notice may be given to some parties where further
investigation or analysis is necessary to identify additional
PRPs.
Notice letters should routinely include information requests
under Section 104(e) if not previously issued. Notice letters
should to the maximum extent practicable also provide information
as to other PRPs (i.e. names, volumes contributed and rankings).
In some cases, it may be more pratical to provide this information
after analyzing the responses to the information requests.
It is likewise important to initiate discussions with PRPs
earlier in the process. While' formal negotiations may not begin
until after Special Notice and closer to the planned obligation
date for the project, EPA should encourage earlier discussions
that will further the process of educating the PRPs as to the
site, EPA'* approach to it and the information we have that may
bear on allocation or other pertinent matters.
Th« litigation team must also begin early the process of
preparing draft settlement documents and a negotiation strategy.
A draft Consent Decree (or administrative order for Remedial
Investigation/Feasibility Study (RI/FS)) should be prepared
along with any negotiation support documents outlining technical
objectives to be presented at or before the first negotiation
-------
OSWER Directive Number 9835.4
-6-
session. (Note that a "Negotiation Support Document" to be used
as a technical attachment for an RI/FS settlement may be prepared
by a contractor but oust be initiated well in advance of
negotiations). Regional staff should also prepare for regional
management rev-iew a negotiation strategy which addresses:
0 initial positions on major issues with alternative and
bottomline positions or statements of settlement objectives;
0 schedule for negotiations which identifies not only the
drop-dead date but also interim milestones at which
negotiations can be evaluated for progress (date for good
faith proposal with line-by-line response to draft settle-
ment document; date for resolution of major issues related
to scope of work, funding arrangements, reimbursement;
date for receipt of all necessary submittals from PRPs
such as technical attachments, preauthorization requests,
trust agreements, etc);
0 strategy and schedule for action against PRPs in the
event negotiations are unsuccessful (i.e., issuance of
unilateral Administrative Order (AO) concurrent with
Remedial Design (RD) obligation, Section 106
referral, etc).
The timing of most of these activities- is critical and in
many cases will be related to the proposed date of obligation of
funds. • For that reason, management attention to the entire site
management planning process is critical to ensure that the required
activities at sites are properly sequenced. In order to assist
you in this, attached for your Region is an Enforcement Confidential
printout taken from the Integrated SCAP which shows the status
of key settlement related activities for sites with planned
obligations during FY 87 or FY 88. (Attachment I)
Management Review of Settlement Decisions
To help improve the management review of settlements, this
section sets out roles and accountability in the decision process.
In addition, it adds two new elements to focus and streamline
policy review:
• A Settlement Decision Committee (SDC); and the
0 Assistant Administrator (AA) Level Review Team.
The existing negotiation team approach will continue to be the
primary vehicle for developing settlements. The negotiation team
will routinely be comprised of a representative from the Waste
Management Division and a representative from the Office of Regional
Counsel. Department of Justice (DOJ), OECM, the Office of Waste
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OSWER Directive Number 9835.4
-7-
Programs Enforcement (OWPE) staff and appropriate State representa-
tives may participate as necessary. The responsibilities of the
neaotiation team are to:
e ensure that ppp searches, notice and information exchange
are properly scheduled and completed;
0 develop a comprehensive negotiations strategy in advance
of negotiations;
e develop and share draft settlement documents, includina
technical scopes of work, in advance of negotiations;
0 conduct negotiations; and
8 raise issues to the Regional Administrator, and where
necessary, to the Settlement Decision Committee for
resolution.
The Regional Administrator, in consultation with DCJ, is
expected to be the primary decision-maker on CERCLA settlement
issues. Administrative settlements for RI/FS are fully the
Regional Administrator's responsibility. OSWFR and OECM con-
currence continues to be reouired on remedial settlements. In
particular, certain najor or precedential issues in Remedial
Design/Remedial Action (RD/PA) negotiations should be referred
for early Headouarters' resolution. Those issues include mixed
funding or preauthorization arrangements, broad releases,
de minimis settlements, deferred payment schemes, and remedies
that deviate significantly from the Record of Decision (ROD).
More detailed guidance on those issues will be prepared and made
available to you in the coming months.
At the same tiwe such guidance is being prepared, Heacauarters
will develop an oversight program that ensures quality and con-
sistency in Regional program administration, and provides sufficient
feedback to allow future'policy adjustments. Once guidance is
finalized, some experience has been gained, and the oversight
program is in-place, we fully expect that the Pegional Administrator
will have broad authority 'to reach settlement decisions within the
framework of that guidance. In the meantime, initial delegations
of certain new authorities will be limited by consultation or
concurrence reouirements. After a period of experience, waivers
of concurrence may be made to those Regions which demonstrate
continuous quality and consistency in administering the CERCLA
enforcement'process. At this point, which is likely to occur
within approximately one year, OSWER and OECM will largely fill an
oversight role, assurina effective settlements consistent with
applicable auidance and"developing additional guidance as necessary.
That cole will also include periodically reviewing whether waivers
of concurrence remain justified.
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OSWER Directive Number 9835.4
-8-
In the interim, a Settlement Decision Committee (SDC) has been
created in Headquarters to provide timely action on issues which
require Headquarters review. The SDC will r>e made up of the
following individuals:
Chair: Gene A. Lucero, Director, OWPE
Members: Edward E. Reich, Associate Enforcement Counsel for Waste,
OECM
David T. Buente, Chief, Environmental Enforcement Section,
DOJ
Basil G. Constantelos, Director, Waste Management Division,
Region V
Bruce Diamond, Regional Counsel, Region III
Henry L. Longest, Director, Office of Emergency and
Remedial Response (OERR) (when necessary)
Regional representatives to the SDC will be rotated every six
months. The SDC will meet approximately every 3-4 weeks, or more
often if necessary. Its primary responsibility will be to coordin-
ate decisions on policy issues raised by Regions. Most settlement
issues requiring Headquarters review will be resolved at this
level. The Chief, Compliance Branch, CERCLA Enforcement Division
(CED), OWPE will serve as secretary for the SDC and will coordinate
communicating policy decisions to the affected Region, and more
broadly where decisions create precedent which may be transferable
to other sites. The SDC will also monitor Regions' progress towards
finalizing settlements, paying particulary close attention to
pending deadlines.
Regions should access the SDC through either OECM-Waste or
the CERCLA Enforcement Division, OWPE. Regions should be prepared
to provide a brief summary of the issue, options and their
recommendation. Regions may, at their discretion, attend the SDC
meeting to present or elaborate on the issue. (More detailed
procedures will be established by the SDC.)
The Assistant Administrator Review Team which was established
during April 1986, will become a formal part of the management
review and decision-making process. The group will be chaired by
the AA-OSWER and include the AA-OECM and the Assistant Attorney
General for Lands and Natural Resources, DOJ. The primary function
of this Team will be bo provide overall policy direction on
settlement concepts, but will also be available to resolve major
policy issues specific to site* where necessary, as determined by
the SDC. The AA Review Team will meet at least quarterly, but
may convene more frequently, if required by circumstances. As
Chair of the AA Review Team, the AA-OSWER must approve extensions
of negotiations beyond the 30 day authority granted to Regional
Administrators below.
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OSWER Directive Number 9835^4
-9-
Deadline Management
Effective management of negotiations in the CERCLA program
will require increase management attention both in Regions and
Headquarters. In order to facilitate the management overview
that will be necessary, particularly within both the program and
counsel's office in the Region, OSWER will provide to you periodic
reports from the Integrated SCAP, similar to Attachment I, which
highlight negotiations in progress or planned for the next quarter.
Headquarters staff and management will use these reports to track
the progress of and preparation for negotiations.
Recognizing the complexity of CERCLA settlement discussions,
it is clear that there will be instances where extension of
discussion beyond the moratorium period will be appropriate. The
framework for considering extensions includes:
1. Thirty day Extension by the Regional Administrators
2. Additional Extension by AA-OSWER in Exceptional
Circumstances
While the SARA Section 122 provisions related to special
notice and negotiation moratoria are discretionary, EPA policy
will be that those provisions should generally be employed.
Section 122 provides for up to a 120 day moratorium before remedial
action, during which time EPA. may not initiate enforcement action
or remedial action. The full moratorium period is conditioned on
receiving a good faith offer from the PRPs within 60 days. In its
absence, the moratorium expires after 60 days. (.Note that while
EPA may proceed with design work, as a general rule, we will not.)
Where adequate preparation as discussed above has preceded special
notice, Regions should generally be able 'to conclude negotiations,
or at a minimum, resolve all major issues during that period.
While negotiation extensions should not be encouraged, Regional
Administrators may grant extensions to negotiations when it is
believed--that a settlement is likely and imminent. However, this
period should not to exceed 30 days.
Further extension of negotiations beyond that 30 day period
may be approved only by the AA-OSWER. Absent that approval,
Regions are expected to move forward with Fund-financed action,
administrative order or judicial referral where appropriate.
(Note that negotiation* nay be resumed at any point after referral
and filing of a Section 106 action.) Extensions will be granted
only in rare and extraordinary circumstances and will generally
be for short duration where the expectation is that final agreement
is imminent. Requests Cor extension should be made by the Regional
Administrator in writing through the Director, OWPE to the AA-OSWER
-------
OSWER Directive Number 9335.4
-10-
and should set out succinctly: 1) the length of extension re-
quested; 2) status of negotiations (issues resolved and those
unresolved); 3) justification for extension; and 4) actions to be
taken in the event that negotiations are unsuccessful. The AA-OSWER
will only consider requests for extensions made by the Regional
Administrator and not direct requests made by PRPs.
In order to avoid any misunderstanding, these limitations
should be communicated to the PRPs early in any discussions.
Moreover, the schedule for negotiations, so long as it respects
these deadlines, is always open to adlustment by agreement among
the parties.
As discussed earlier, it is important to recognize that
negotiations are not limited to the 120 day period established by
the special notice provisions of the law. Information requests
and traditional notice letters should be sent as soon as possible,
and initial discussions should almost always occur with PRPs before
the special notice is provided. We are developing more detailed
guidance on notice letters, and the use of the special notice
procedures, and we anticipate circulating this guidance for
comment within the next month.
One of the lessons learned as a result of the limited April-
May 1986 funding during the Superfund slowdown was that there are
benefits derived by having several settlements which are on a
parallel and firm schedule for final resolution. Not only did we
find that firm schedules tend to force issues to resolution, but
it proved to facilitate management review in that sites with
similar issues could be dealt with concurrently. In order to
extend this "clustering" effect, OSWER is considering including
in the FY 88 Strategic Planning and Management System (SPMS)
commitments a target for completion of RD/RA negotiations.
Approach for RI/FS Negotiations
In light of the delegation of RI/FS decisions, much of the
above process is not relevant for RI/FS negotiations. The Agency
continues to encourage PRP conduct of RI/FS in appropriate
circumstances (see Thomas/ Price memorandum "Participation of
Potentially Responsible Parties in Development of Remedial
Investigation and Feasibility Studies", dated March 21, 19*4).
RI/FS settlement issues should generally be resolved by the Regional
Administrator and need not be submitted to the SDC or the AA-level
review group. Section 122 authorizes a 90 day moratorium for
negotiations, conditioned on receiving a good faith offer from
PRPs within 60 days of special notice. Regional Administrators
have discretion to terminate or extend negotiations after 90 days.
However, extension of negotiations beyond an additional 30 davs
should be authorized by the Regional Administrator only in
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OSWER Directive Number 9835
-11-
litnited cases. The points made above in Negotiation Preparation
are equally applicable to RI/FS negotiations, with the exception
that negotiation strategies do not require Headquarters review.
SUMMARY
Implementation of these steps to streamline the settlement
process was identified by the Administrator as one of his highest
priorities under SARA. We urge you to Rive this topic the same
priority in your Regions and provide a commensurate level of
management attention.
If you have any questions about these measures or their
implementation, please contact either of us directly.
Attachment
cc: Superfund Branch Chiefs
Regional Counsel RCRA/CERCLA Branch Chiefs
Enforcement Section Chiefs
Gene A. Lucero
Henry Longest
Ed Reich
Jack Stanton
Russ Wyer
David Buente
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Federal Ragiatar / Vol. 52. No. 102 / Touraday. May a. 1987 / Notices
OSWER
* 9839.1
IWli
Date* May 3& laV.
VaeaA,Newel
IFK Doe. B7-U1M PIM «7-e7: Ml MI|
Agency.
ocattonaof
(NBAR)
: Environmental Protection
Request for public comment
r. Section 122(e)(3) of th«
Supcrfund Amendment! and
Rtauthorization Act of 1MB (SARA).
which amended the Comprehensive
Environmental Response.
Compensation, and Liability Act
(CERCLA), requires the Environmental
Protection Agency (EPA) to develop
guidelines for preparing nonbinding
preliminary allocations of responsibility
(NBARj). EPA is publishing today the
Interim Guidelines for Preparing
Nonbinding Preliminary Allocations of
Responsibility to announce that the
guidelines are in effect and to solicit
public comment on them.
DATE Comments must be provided on or
before |uly 27. M67.
Aoomit: Comments should be
addressed to Debbie Wood. U.S.
Environmental Protection Agency.
Office of Waste Programs Enforcement
WH-SZ7. .401 M St SW.. Washington.
DC 20400.
POM PUWTHdl MPOASAATIOM
Debbie Wood. U.S. Environmental
Protection Agency. Office of Waste
Programs Enforcement WH-S2T. 401 M
St SW. Washington. DC 20460. (302)
382-3002.
•UPMBMMTAMY MPONMATXMC As
defined in section 122»e)(3)(A) of SARA.
an NBAR is an allocation by EPA among-
potentially responsible parries (PRPs) of
percentage of total response cost* at a
facility. The purpoac of NBARs U to
promote expedited settlement. NBARs
are not binding oa the government or
PRPr they caaaot be admitted aa
evidence or reviewed in any judicial
proceeding, including citizen suits.
Whether to prepare an NBAR at any
particular CERCLA site is a decision
within EPA's discretion.
EPA will consider preparing an NBAR
at a site if it appears that aa NBAR may
help to promote settlement StilL NBARs
will not be routine. In general EPA's
policy is that PRPs should work out
among themselves questions of bow
•tea each will pay toward settlement at
aaita,
Comments may address the overall
approach takes at the iateria guidelines
or focus on any aspect of it EPA
parttcaiariy solicits comment on
appropriate factors to consider in
determining percentage allocations for
owners, operators* and transporters.
The polices and procedures set forth
to the interim guidelines are guidance to
EPA employees. The interim guidelines
include enforcement policies and
internal procedures that are not
appropriate or necessary subjects for
rulemaking. Thus, the guideline* do not
constitute ralemaking by EPA and may
not be relied on to create a substantive
or procedural right or benefit
enforceable by any other person. EPA
may, therefore, take action that is at
variance with policies and procedures
contained in this document.
EPA is publishing the interim
guidelines to provide wide public
distribution of information on this
aspect of SARA iaiplf mentation, and to
gain the benefit of public comment The
interim guidelines follow:
Dated: May 16.19S7.
U*M.T»eafta*.
AAninittrator.
INTERIM GUIDELINES FOR
PREPARING NONBINDING
PRELIMINARY ALLOCATIONS OF
RESPONSIBILITY
L Introductton
Section U2(e)(3) of the Superrond
Amendments and Reauthorization Act
of 1906 (SARA). Pub. L No. 90-499.
which amended the Comprehensive
Environmental Response.
Compensation, and Liability Act of I960
(CERCLA). 42 UJ5.C 9601 ef sec..
requires the Environmental Protection
Agency (EPA) to develop guidelines for
pinifaH^g nonbindtog preliminary
allocations of responsibility (NBARs).
Aa defined a section !22(eX3)(A). aa
NBAR is aa allocation by EPA among
potentially responsible parties (PRPs) of
percentages of total response costs at a
facility. SARA authorises EPA to
provide NBARs at its discretion. NBARs
are a tool EPA may use ia appropriate
cases to promote remedial settlements.
NBARs will allocats 100 percent of
response costs among PRPs. The
discretion to prepare an NBAR does not
change the goal of the interim CERCLA
settlement policy, published at SO FR
1034 (February 5.1984). to achieve 100
percent of cleanup or coats in
settlement
la preparing aa NBAR. EPA may
consider such factors as volume.
toxidty. aad mobility of hazardous
substances contributed to the site by
PRPs, aad other settlement criteria
mdaded in the interim settlement policy
(SO FR 5034.3037-4038). The settlement
criteria include strength of evidence
tracing the wattes at a site to PRPa.
ability of PRPs to pay. litigatrve risks ia
proceeding to thai, public interest
considerations, precedential value.
value of obtaining a present sum certain.
inequities and aggravating factors, aad
nature of the case that remains after
settlement
Aa NBAR is not binding oa the
government or PRPs; it eaanot be
admitted as evidence or reviewed in any
judicial proceeding. inr^"tting citizen
suits. An NBAR is preliminary in the
sense that PRPs arc free to adjust the
percentages allocated by EPA among
themselves.
Should EPA decide to prepare aa
NBAR. it will normally be prepared
during the remedial investigation and
feasibility study (RI/FS). and provided
to PRPs as soon as practicable, but not
later than completion of the RI/FS for
the site. The NBAR process will
normally be used only ia cases where
the discretionary special notice
procedures of section 122(e) are
invoked.
Following presentation of an NBAR to
PRPs, PRPs have an opportunity to offer
to undertake or finance cleanup. EPA
need consider only substantial offers. A
substantial offer is defined in pan IV of
these guidelines. EPA must provide e
written explanation to PRPs if it rejects
a substantial offer based on an NBAR.
Under section 122fe)(3)(£). the decision
to reject a substantial offer based on an
NBAR is not subject to judicial review.
Section 122(e)(3)(D) states thet tSe
costs incurred by EPA in preparing an
NBAR shall be reimbursed by PRPs
whose offer is accepted. If a settlement
offer is not accepted. NBAR preparation
coats an considered response costs
under SARA.
IL When To U«e the NBAR
The NBAR is meant to promote
settlement and. thus, reduce transaction
costs. Generally. EPA will consider
NBAR preparation when it appears that
an NBAR may help to promote
settlement. EPA will give particuUr
consideration to preparing an NBAS
whenever a significant percentage of
PRPs at a site request one. What
constitutes a significant percentage is a
case-specific determination. Regions
should note die existence of the NBAR
process ia all pre-Rl/FS notice tetters.
aad indicate its potential availability if
requested by a significant percentage of
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19920
Federal Renter / Vol. 5Z No. 102 / Thursday. May 28. 1967 / Notices
PRP* within 30 day* of receipt of the
notice.
Thar* an certain situations where an
NBAR may be particularly appropriata.
For example, in a case that involve*
federal agendas as PRPs, preparing an
NBAR in order to ascertain the
percentage of federal agency
responsibility is likely to promote
settlement even though a significant
percentage of PRPi did not request it
Similarly, if a state or municipality is
involved at a site as a PRP, NBAR
preparation may b* deemed likely to
promote settlement. Or. it might be
appropriate to prepare an NBAR in a
case with a large number of PRPs
inducting, perhaps, a sizeable de
minima contingent An NBAR may help
coalesce a previously unorganized PRP
group into a steering committee, and
thus promote settlement
There are also situations where an
NBAR should probably not be prepared.
For example, it may be dear very early
in the process that there is insufficient
information aveiisble on which to base
an NEAR, or that the number of PRPs
not de minima is so small that an NBAR
would not expedite settlement. In some
cases it may seem that an equitable
settlement can be more expeditiously or
effectively achieved without use of
NBAR procedures. There may also be
cases where NBAR preparation is ruled
out because an allocation for the site is
already being prepared by or for PRPs.
Again, whether to prepare an NBAR
at any particular site, induding any
state enforcement lead site, is a dedsion
within EPA's discretion and will depend
on the particular circumstances of each
case. The decision whether to prepare
an NBAR at any particular site rests
with the Regional Administrator.
IF EPA decides to prepare an NEAR, it
will notify PRPs of that fact in writing as
early as is feasible. An NBAR
notification should specify that tha
decision to prepare aa NBAR is
discretionary aad U continent at a
minimum, upon the availability of
sufficient data.
IIL How To Prepare aa NBAR
The purpoee of the NBAR is to
promote expedited satticmefit thai
miBuattttasj ttaaaaction coeti1, aa NBAR
must be conducted ia a fair, efficient
and pragmatic maaaar. For simpbdty
and other practical reasons, the
allocatioa process presented hare is
baaed primarily upon volume aad the
settlement criteria.
EPA considered aad rejected modal*
bated on toxidty because of the
complexity of their application aad the
lack of agreement among the scientific
community about degrees of. toxidty of
specific hazardous substance* and
syaargutic effects. Also, toxidty is
usually causally related to tha coat of
cleanup for only a few aahatanoa* (*.$>
PCBa, dioxin).
Still the allocation process presented
bare is not intended to be exclusive,
There will of course, be cases where
other factors, such as toxidty or
mobility, must take priority in tha
interests of fairness to the parties. If a
Region prefers to use another allocation
process, it should confer with tha
Director of the Office of Waste
Programs Fjirm cement prior to such use.
Activities involved in r""in''*inf. an
NBAR fall into two major categories:
Information collection aad assessment
§n^ allocatioa.
Information Collection and Autuamnt
While aggreseive'infonaatton
collection efforts occur in every case.
additional information may be
necessary for NEAR purposes.
Additional information on actual volume
and specific wastes with respect to each
PRP at an NBAR site may be required.
Section 12(e)(3)(B) of SARA
authorizes EPA to subpoena witnesses
and documents. Section 104{e) of
CERCLA. as amended by SARA.
authorizes EPA to obtain access to
information about a parson's ability to
pay and about the nature and quantity
of hazardous substances generated.
treated, stored or diapoaed of by that
person. These authorities may be used
to gather data for aa NBAR.
Subpoena of witnesses, authorized by
section 122 (e)(3)(B). may be used in
some cases as part of the information
collection process. Considerable case-
specific judgment must be exercised
about the extent to which the subpoena
authority will be uaad due to its
resource-intensive nature.
Information being collected must be
reviewed by technical and legal staff as
it U received so that pertinent
information may be culled *"rf gaps aad
iaconaiatanciae identified. Collection
completed by tha aad ol tha RL to that
the allocation caa be completed by the
end of the FS.
On the basis of Information collection
determine tha waste types aad volumes
tat each PRP. Tata wtamaWe ranking is
part of the fadonaa DOB that must be
proridad with a pie cleanup negotiation
special notice letter.
Tha legislative history of section 122
states that the allocation itaetf should be
made by federal amptoyeee, Consultant*
or states with cooperative agreements
nay assist m the teformation gathering
and aasesamant phase of the allocation
process. The allocation phase of en
NBAR caa be moat affectively
uadartakan by the same technical
legal .personal who directed the
information collection »ni1 asteesi
efforts.
Allocation
In most cases, waste at a site is
commingled aad therefore indivisible.
mmminglaH waste cases, the first step
ia the allocatioa phase of aa NBAR is
allocate 100 percent of responsibility
among generators, based on the velum
each contributed. The product of this
•tap will often differ from the volumec
ranking provided with special notice
letters because any waste that is
attributable to unknown parties is
allocated to known parties in proportic
to their volume.
In a limited number of cases. It 1*
possible to link particular remedial
activities with specific wast* types an<
volumes. For example, in the easy but
rare case of divisible waste, the cost o
removing barrels from a warehouse on
larger site can be separately attributed
to the contributors of the barrels. Or. t
cost of incinerating soil contaminated
solely by PCBs caa be attributed to PC
contributor*. Where it is poeaible to dc
so, wast* type* aad volumes that
necessitate particular remedial activi^
will be fully attributed to the
appropriata contributors.
Tha second step m the allocatioa
phase of the NBAR process involve*
adjustments based on consideration of
the settlement criteria. Any percentage
'allocated to a defunct or impecunious
party should be reallocated. Where
appropriata. credit may be given for ar
PRP contributions to RI/FS and/or
removal activities at the site.
la addition, percentages of
responsibility should be allocated to
financially viable owners, operator* ai
treasportars. How much to allocate to
such parties I* a case specific decision
based upon consideration of tha
aettlemeat criteria.
la ftaaftl owner/operator culpabili
la a «tg»«***-"« actor in determining th
percentage of raapoaaibillty to be
allocated. For example, a commercial
owner aad/or operator that managed
waste badly should receive a higher
allocation taaa a paseive.
aoncommerdal landowner that **"*f'
qualify aa innocent under section
122fjXlMcT) of SARA. The relative
allocation among successive owners
aad/or operators may he determined.
waata ail otaar circumstance* art equ;
by the relative length of time each
owned aad/or operated tha site.
Traasportar allocations may be baaed
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FedaraJ Register / Vol. 52. No. 102 / Thuraday. May 28. 1987 / Notices 19921
on volume, taking mlo account
appropriate considerations tucb ai
packaging and placement of wmjt« tt •
site. Detailed guidance on allocations
for transporters, owners, and operator!
may be prepartd at a latar data on tha
baaii of axperianoa under tht«t interim
fuidalion.
Again, an NBAR will allocata 100
percent of response costs, because the
goal is to achieve 100 percent of cleanup
or cost* in settlement
IV. Offers Based oo NBAftS
Once the technical and legal
personnel complete the NBAR. the
numerical results will be transmitted in
writing to PRPs. EPA will not provide a
detailed explanation for the results, due
to the enforcement-sensitive nature of
the decisions involved. EPA will provide
a general explanation of the rationale
used in preparing the NBAR. Data
gathered in the information collection
phase may be made available to PRPs.
EPA will provide the NBAR results to
PRPs as early as possible. The sooner
PRPs receive the results, the more time
they have to organize among themselves
and negotiate with EPA on remedy. A
limited period should be provided for
PRPs to digest the NBAR results before
notice for deanup negotiations is sent.
EPA will attempt to complete the
NBAR before selection of a preferred
remedy and public comment or at least
prior to the Record of Decision (ROD).
Special notice under section
122(e)(2)(A) of SARA will generally be
provided prior to cleanup negotiations in
cases where en NBAR is used. If within
60 days of special notice for deanup
negotiations. EPA receives no offer for
settlement it may proceed as usual with
action under section 104 or 106 of
CERCLA. If EPA receives an offer that is
not a substantial/good faith proposal it
should so notify the PRPs before
proceeding with action under section
104 or 106.
A good faith offer is an offer in writing
in which PRPs make a showing of their
qualifications ""1 willingness to
conduct or finance the major elements
of the remedy. A substantial offer must
meet three criteria. First it must equal or
exceed the cumulative allocated shares
of those making the offer. Second, it
must amount to a predominant portion
of deanup coat*. Third, it must be
acceptable to EPA in regard to all other
terms and conditions, such as release
provisions or dispute resolution
mechanisms.
If EPA receives a substantial/good
faith offer within 60 day* of special
notice for deanup. EPA will provide an
additional 60 days for negotiation. If an
agreement for remedial action is
reached. It must be embodied in a
consent decree. The State should be
kept appnsed of negotiations if it
chooses not to participate. Should
negotiations for settlement based on an
NBAR fail a section 106 unilateral order
or civil action may be used to initiate
remedial action. Should EPA proceed
with deanup under section 104. the
NBAR may still be useful in developing
demand letters for a section 107 cost
recovery action.
D» minimi* and mixed funding
settlements, also authorized by section
122. may occur in combination with aa
NBAR. Whether EPA win accept a
mixed funding or de minious proposal at
an NBAR site will depend on the results
of additional analyses specifically
designed to evaluate such proposals.
If EPA rejects a substantial/good faith
offer, it must provide a written
explanation to the PRPs. after
consultation with DO) and review at
EPA Headquarters. In general, rejection
of a substantial offer that is sufficient in
amount is likely to be based on failure
to reach agreement on terms and
conditions. After a written explanation
for rejection of a substantial/good faith
offer is tent EPA may proceed under
section 104 or 106.
[FR Doc 87-12114 FUtd S-Z7-47: 8:45 am]
[OTTS-140074A; WL-MOt-1]
Toxic and Hazardous Substances
Control; Contractor and Subcontractor
Aeeaaa to Confidential Buainaaa
Information
r. Environmental Protection
Agency (EPA).
ACTIO«C Notice. _
SUMMAMT: EPA has authorized several
contractors and subcontractors for
access to information submitted to EPA
under venous sections of the Toxic
Substances Control Act (TSCA). Some
of the information may be claimed or
determined to be confidential business
information (CBI).
POM nNrmm MPOMSAYION CONTACT:
Edward A. Klein. Director. TSCA
Assistance Office (TS-7W). Office of
Toxic Substances. Environmental
'Protection Agency. Room E-543. 401 M
Street SW, Washington. DC 20460 (202-
554-1404).
iumjMiKTAHv asPomunoM: Under
TSCA. EPA must determine whether die
manufacture, processing, distribution in
commerce, use, or disposal of certain
chemical substances or mixtures may
present an unreasons We risk of in jury to
human health or the environment New
substances. Le. those not
listed on the TSCA Inventory of
Chemical Substances, are evaluated by
EPA under section 5 of TSCA. Existing
chemical substances, listed on the TSCA
Inventory, are evaluated by the Agency
under sections 4.6.7. and 8 of TSCA.
Section 12 requires « person to report
his or her intent to export certain
ciemicsJ substances to foreign
countries.
In accordance with 40 CFR 2468(1),
EPA has determined that the following
contractors and subcontractors will
require access to CBI sjsfcejkittad to EPA
under TSCA to successfully perform
work under the contracts described in
the following units of this notice.
L Previously Announced Contract
As was announced in the Federal
Register of May 1.1966 (FR 16205). the
Dynamac Corporation. 11140 Rockville
Pike. Rockville. Maryland, is authorized
for access to CBI submitted to EPA
under sections 4 and 8 of TSCA. EPA is
issuing this notice to extend Dynamac's
access to TSCA CBI under EPA Contract
No. 66-02-4251 to February 28.1989.
n New Contractor* and Subcontractors
Access to CBI by the contractors and
subcontractor* described in this section
is being announced for the first time.
EPA is issuing this notice to affected
businesses informing them thst EPA
may provide access to TSCA CBI to
these contractors and subcontractors
under the indicated contracts on a need*
to-know basis.
Under.EPA Contract No. 68-01-7282.
subcontractor CRC Systems.
Incorporated. 4020 Williamsburg Court
Fairfax Virginia, will assist the Office of
Toxic Substances' Information
Management Division in performing
work under delivery order MCCS17—
PENTA Analysis and Design Evaluation.
CRC as a subcontractor, will be
working for the prime contractor. Booz
Allen and Hamilton. Booz. Allan and
Hamilton will not require access to
TSCA CBI under this contract CRC will
not conduct substantive review of any
TSCA CBI; however. CRC personnel will
require access to CBI on computer
screens in order to evaluate technical
aspects of computer programs to
perform contract tasks. In addition.
personnel will occasionally be required
to review CBI documents to compare
hardcopy data for those data elements
contained in the systems. The systems
to be accessed an PENTA, Molecular
Access System (MACCS). and the
Document and Personnel Security
System (DAPSS). Under this contract
CRC personnel will be authorized for
-------
®
x«^
UNITED STATES EN VmONMCNTAi. WOTECTIOH AfitTNCY
OSWER Directive 9833.3
MT 29 B8T7
OMICI or
•OLIO WATT! AND IMIMOINCV NMPONM
MEMORANDUM
a^Ufense
SUBJECT: Administrative Records for Decisions on Selection of
CERCLA Response Actions
FROM: Gene A. Lucero, Director
Office of Waste Programs
Henry L. Longest II, Director
Office of Emergency and RemediaVffc'tt'nse (HB-548)
TO: Addressees
AS you are aware, section 113(k) of the Comprehensive Environ-
mental Response, Compensation, and Liability Act (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act (SARA),
requires that the Agency establish administrative records containing
information used by the Agency to make its decision on selection
of response action under CERCLA. Section 113 also requires that
the records be kept "at or near the facility at issue.*" This
memorandum is to inform you of steps which must be implemented by
the Regions immediately to assemble administrative records, if
not already done.
As the section 113 requirement for the establishment of
records is in effect, the Regions should ensure that information
on selection of a response action is assembled now, and is avail-
able for public, including potentially responsible party, review
both in the Regional Office and "at or near the facility at
issue." This requirement applies to all sites for which a remedial
investigation has begun. It also applies to removal actions
where an Action Memorandum has been signed or public comment has
been solicited.
This administrative record consists of information upon
which the Agency bases its decision on selection of response
action. It is a subset of information included in the site file.
The site files will contain information on potentially responsible
party liability and cost documentation, for example, which is not
included in the administrative record. The administrative record
will also overlap with the community relations information in the
information repositories, the Federal facility docket, and the
-------
OSWER Dir«ctiv« 983
-2-
NPL listing docket. A separate memorandum coneerntnn setting up
site f ilesr'*fi3~Tong term management of administrative records
is under development. At this time, as you assemble and
reproduce administrative records, vou should keep other records
management matters in mind.
Three million dollars were available in contract
for records management in FY '87, some of which is still available.
Additional funds averaging about SI 00 ,000 per Region have been
earmarked this fiscal year specifically to assist in setting up
administrative records. The Regions should submit a list of
priority sites at which they will require assistance in compiling
a record, and an estimate of the cost of such activities. Top
priority should be given to those sites for which the Agency
will be signing Records of Decision (ROT)*) in this fiscal year,
and those for which a remedial investigation/ feasibility studv
(RI/FS) is currently available for public comment. The next
highest priority includes those sites where a ROD has been signed
and the PRPs are not undertaking the remedial design (RD) or
remedial action (RA) ; sites where a RI/FS workplan is available;
and sites where a removal action is underway. Third priority
sites are those where a ROT) has been signed and PRPs are undertaking
the remedial design or remedial action.
The Regions should also list sites which presently have
funding for an administrative record. A coordinator should
be designated in each Region to manage the compilation of
priority sites and oversee the compilation of. these administrative
records. Pleas* submit your list of priority sites and contract
needs within two weeks to Linda Boornazian in OWPF. She can he
reached at 382-4R3n.
The Agencv plans to propose regulations establishing proce-
dures for the administrative records. These administrative
record regulations are expected to be issued in con 1 unction with
the proposed NCP revisions. The upcoming proposed regulations
will serve as interim guidance under SARA for the creation of
adequate administrative records for response action decisions.
We have been working with representatives from the Regions on
these regulations^
During eh* course of developing these regulations, numerous
policy leaves have surfaced. These issues are currently being
addressed «t headquarters. This memorandum will he followed
shortly by a •earorandum addressing issues related to the admini-
strative record requirements, in greater detail. The upcoming
memorandum will summarize the Agency's current direction on these
administrative record issues. We will also be addressing the
administrative record requirements in the Super fund Record of
Decision Workshops in June and July of 1987, emphasizing information
on FY '87 RODs.
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-3-
OSWER Dirtctivt 9833.3
Attached is a list of items vhiclv if generated for a
particular site,-should be_J.nciuded f"7^ht nrtmtnlatfnM'ri" LLLULJ.
Please note that tirformation upon which the decision on selection
of response action is based must be included in the record.
The A£M»cy will be refining this list. The upcoming memorandum
will go intSt Much greater detail on all aspects of the administra-
tive record. Until then, the above lists of documents should be
used as an indication of information which should be placed in the
administrative record.
Please call Deborah Wolpe of OWPE at PTS 475-8235 if you
have any questions.
Attachment
Addressees:
Directors, Waste Management Division, Reg. I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division, R«g. IX
Directors, Hazardous Haste Management Division, Reg. Ill, 71
Director, Toxics and waste Management Division, Reg. IX
Director, Hazardous waste Division, Reg. X
Regional Counsels, Regions I-X
Superfund Branch Chiefs, Regions I-X
Superfund Section Chiefs, Regions I-X
cc: Lloyd Guerci, OWPE
Russel wyer, HSCD
Tim Fields, ERD
Edward Reich, OECM
Mark Greenwood, OGC
Nancy Firestone, DOJ
-------
ATTACHMENT
Documents for Removal Actions*
dat«**
- Removal preliminary assessment
• Sit* investigation report
• Any otter factual data relating to reasons why we selected a
particular removal action at the sit*
- Chain of custody forms**
- Engineering evaluations
- Cost analysis documents
- Final data summary sheets of technical models used to evaluate
the site
- Action Memorandum
- ATSDR health assessment (draft versions not included)
- Memoranda on major sit* specific policy and legal interpretations
(e.g. i off-site disposal availability, compliance with other
environmental statutes/ special coordination needs, e.g. , dioxln,
provisions for State assumption of post-removal sit* control)
- Information from telephone logs r*li*d on in selecting r*spons*
- Mew technical information presented by PRPs during negotiations
- Guidance documents and technical sources ***
- Community Relations Plan
- Public comments, if any
- Responses to significant comments
- Copies of any notices, including notices to PRPs, States, Haft oral
Resources Trustees, notices of availability of information
- Documentation of meetings during which the public and PtPs pr*s*nt
information upon which the agency bases its decision on selection
of a removal action (may be after-the-fact restatement of issues rai
- Administrative Orders
- Consent decree (s), comments and responses to comments on the
consent decree
- Affidavits or other sworn statements of expert witnesses
- Amendments to Action Memorandum, including ceiling increase Action
Memoranda, and Action Memoranda on technical changes; information
which caused the agency to change the decision, comments, and
responses to comments
* Drafts and internal memoranda are not included in the record
unless they contain information used to base the decision
which the) final document does not contain, or the decision-
.maker ehooaes to base the decision on a draft document.
** QA/OC'd raw data (e.g., results of OC runs, chromatograms,
mass spectra) and chain of custody forms are part of the record and
available to the public, but need not be in the same physical
location as the record in the .Regional office or in the information
repository at or near the site.
*** Guidance documents and technical sources may be kept in a
central compendium by the docket clerk. They need not be in
each site-specific record. The index to the record should
reference titles of relevant guidance documents and technical
sources.
-------
Artn.nirar i^» with the State
on the scop* of the removal action; comments from State, if any,
and responses to substantive comments
- Index of documents in the record
(Expedited Response Actions should be treated like removals for
purposes of compiling an administrative record: for purposes of
the administrative record, RI/PSs should be treated as a phase
of a remedial action, and not a removal)
-------
-3-
Poeumeuls for" Rimed! a 1 Actions*
- Prelimil»«ry assessment report
- Site investigation report
- Any relswant removal documents {if removal action completed or
ongoing at site)
- QA/QC'd raw data**
- Data summary sheets (usually part of the FS)
- Chain of custody forms**
- OAPP
- Initial work plan and any amendments thereto
- RI/FS (final deliverable released for public comment)
- Any other factual data relating to reasons for selectinq the remedia
action at the site
- Memoranda on site-specific major policy and legal interpretations
e.g., off-site disposal availability
Infor
- Information from telephone logs relied on in selecting response
- Guidance documents and technical sources ***
- Community Relations Plan
- Proposed plan and brief analysis of plan
- Feasibility Study (final deliverable released for public comstnt)
- Endangerment Assessment or other public health assessment
- ATSDR Health Assessment (draft versions not included)
- Copies of any notices, including notices to PRPs, States, Natural
Resources Trustees, notices of availability of information
- Public comments (including a late comments section)
- Documentation of meetings during which the public and PRPs present
information upon which the agency bases its decision on selection
of a remedial action (may be after-the-fact restatement of issues
raised)
- New technical information presented by PRPs durinq neqotiations
- Documents relating to State involvement (e.g., ARAR determinations,
opportunity to comment on screening of alternatives, FS, proposed
plan, selected remedy)
- Responses to substantive comments
- Transcript of required public meeting(s) on the proposed plan
* Drafts and internal memoranda are not included in the
record unless they contain information used to base the decision
which the final document does not contain, or the decision-
maker chooses to base the decision on a draft document.
** QA/OC'd raw data (e.g., results of QC runs, chromatograms,
mass spectra) and chain of custody forms are part of the record
and available to the public, but need not be in the same
physical location as the record in the Regional office or in the
information repository at or near the site.
*** Guidance documents and technical sources may be kept in a
central compendium by the docket clerk. They need not be in each
site-specific record. The index to the record should reference
titles of relevant guidance documents and technical sources.
-------
igrinding tr-a-t^****- off basis a-mrTJUr^ose of selected
action; summary of alternatives considered; an explanation of
why the Agency chose the preferred alternative; explanation
of any statutory preferences under 512Kb) not met; Explanation
of significant differences between the Proposed Plan and ROD
- Amendments to the ROD, information which caused the Agency to
change its decision, comments and responses to those comments
- Relevant documents generated during a RCRA corrective action
proceeding-at the site, if applicable
- Administrative Orders
- Consent decree(s), comments and responses to comments
- Affidavits or other sworn statements of expert witnesses
- Interagency agreement (for federal facilities)
- Index to documents in record
-------
.•*-;•%.
f NHB^ } UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\4>We>y WASHINGTON. DC. 20460
JUN - 5 196T
OSVER DIRECTIV
9829.2
MEMORANDUM
SUBJECT: Enfry and Continued Access Under CERCLA
FROM: Thomas L. Adams, Jr. V * \ V Cl
Assistant Administrator "^^srW^cXA^-l^ V\ . ^>> gi.gc «--^
TO: Regional Administrators I-X
Regional Counsels I-X
I. INTRODUCTION
This memorandum sets forth EPA's policy on entry and
continued access to facilities by EPA officers, employees, and
representatives for the purposes of response and civil enforce-
ment activities under CERCLA. I/ In short, the policy recommends
that EPA should, in the first Instance, seek to obtain access
through consent. Entry on consent is preferable across the full
range of onsite activities. If consent is denied. EPA ehould
use judicial process o.r an administrative order to gain access.
The appropriate type of judicial process varies depending on
the nature of the onsite activity. When entry is needed for
short-term and non-intrusive activities, an ex parte. judicial
warrant should be sought. In situations involving .long-term or
intrusive access, EPA should generally file suit to obtain a
court order.
The memorandum's first section addresses the recently amended
access provision in CERCLA. The memorandum then sets forth EPA
policy on obtaining entry and the procedures which should be
used to implement this policy, including separate discussions on
consent, warrants, court orders, and administrative orders.
II This policy does not address information requests under
~ Section 104(e)(2).
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- 2 -
II. STATUTORY AUTHORITY
EPA needs access to private property to conduct investiga-
tions, studies, and cleanups. The Superfund Amendments and
Reauthorization Act of 1986 (SARA) explicitly grants EPA 21 che
authority to enter property for each of these purposes. Section
I04(e)(1) provides that encry if permitted for "determining che
need for response, or choosing or taking any response action
under this title, or otherwise enforcing che provisions of this
title."
SARA also establishes a standard for when access nay be
soughc and defines what propercy may be entered. EPA may exercise
its encry authority "if there is a reasonable basis to believe
there may be a release or chreac of a release of a hazardous
substance or pollutant or contaminant." i 104(e)(1). SARA,
however, does not require that chere be a release or threatened
release on the property to be entered. 3/ Places and properties
subject to encry under Seccion 104(e) include any place any
hazardous substance may be or has been generated, stored, treaced,
disposed of, or cransporced from; any place a hazardous subscance
has or may have been released; any place which is or may be
chreacened by che release of a hazardous subscance; or any place
where encry is needed co decermine che need for response or che
appropriace response, or co effectuate a response action under
CERCLA. i 104(e)(3). EPA ia also auchorited co encer any place
or propercy adjacenc Co che places and propercies described in
che previous sentence. S 104(e)(1).
EPA is granted explicit power co enforce ics encry auchoricy
in Seccion 104(e)(5). Under chac provision EPA may eicher issue
an administrative order directing compliance wich an encry requesc
or proceed immediately co federal discricc courc for injunccive
relief. Orders may be issued where consenc Co encry is' denied.
Prior co che effeccive dace of che order, EPA muse provide such
notice and opporcunity for consultation as is reasonably appro-
priace under cbe circumscances. If EPA issues an order, che
order can be enforced in courc. Where there is a "reasonable
basis eo believe there may be a release or chreac of a release of
a hazardous.*s)«batance or pollucanc or concaainanc," courts are
inscrucced ttr enforce an EPA. requesc or order unless che EPA
2/ Although CERCLA and SARA confer authority upon the President
~ that authority has been delegated to the EPA Administrator.
Exec. Order No. 12580, I 2(g) and (i) , 52 Fed. Reg. 1923 (1987).
3/ The House Energy and Commerce bill at one point contained
this limitation. H.R. Rep. No. 99-253 Pare 1, 99th Cong,. 1st
Sess., 158 (1985). This limicacixm, however, was dropped prior co
incroduccion of che bill for floor debate. See H.R. 2817, 99th
Cong., Isc Sess., 131 Cong. Rec. H10857 (December 4, 1985).
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- 3 -
"demand for entry or inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law."
$ 104(e)(5). The legislative history makes citar chat courts
should enforce an EPA demand or. order for entry if EPA's finding
chac there is a reasonable basis to believe there nay be a release
or threat of release is not arbitrary and capricious. 132 Cong.
Rec. SU929 (October 3, 1986) (Statement of Sen. Thurmond); 132
Cong. Rec. H9582 (October 8, 1986) (Statenent of Rep. Glickman).
See United States v. Standard Equipment. Inc.. No. C83-252M (W.D.
Bash. November 3, 1986). In addition, a penalty not to exceed
$25,000/d*y nay be assessed by the court for failure to comply
with an EPA order or the provisions of subsection (e).
Finally, Section 104(«)(6) contains a savings provision
which preserves EPA's power to secure access in "any lawful
manner." This broad savings provision is significant cooing
in the wake of the Supreae Court's holding that:
When Congress invests an agency with enforce-
ment and investigatory authority, it is not
necessary to identify explicitly each and every
technique that t&ay be used in the course of
executing the statutory mission.
. . . Regulatory, or enforcement author icy
generally carries with it all the nodes of
inquiry and investigation traditionally employed
or useful to execute the authority granted.
pov Cheeieal Co. v. United States. 90 L.Ed. 2d 226, 234 (1986). ±)
One lawtul means of gaining access -covered by chic paragraph is ""
use of judicially-issued warrants. See $• Rep. No. 99-11, 99th
Cong. 1st Sess. 26 (1985).
In nuaerous instances prior to the passage of SARA, EPA
obtained court rulings affirming its authority to enter property
to conduce CERCLA activities. 5/ Following enactment of SARA.
4/ See al»o, Mobil Oil Corp. v. EPA. 716 F.2d 1187, 1189 (7th
" rTr.TgfS). cart, jenied ..46OTS. 980 (1984) (EPA authority
to saaple effluent under Section 30.8 of the Clean Water Act
broadly conitrutd); CEDs. Inc. v. EPA. 745 F.2d J092 (7th Cir.
1984), cert, denied. 471?.S. IQISTT'SBS).
5/ United States v. Pepper Steel and Alloy. Inc.. No. 83-1717-
" CIV-EPS (5.D. Fla. October i.0. 1966^; gun*er Liaited Partnership
v. United States, No. 85-3133 (D. Idaho October 21 . i"5); united
States v. Coleman Evans Mood Preserving Co.. No. 85-211-CIV-J-lo
(M.P. Fla. June 10. J.985); Un-ited States "vT taird & McCuire
Co. No. 83-3002-Y (D.'Mass. hay 2, 1365); t/nieed Peaces vvUnitee
Suelear Cor?., 22 ERC 1791, 15 ELR 20443 (D.N.M. April 18, 19T5;.
-------
- 4 -
several courts have ordered siteowners to permit EPA access.
United States v. Long. No. C-l-87-167 (S.D. Ohio May 13, 1987);
United State* v. Dickerson. No. S4-76-VAL (M.D. Ga. »M«y 4, 1987);
United States v. Standard^Equipgient, Inc.. No. C83-252M (W.D.
Wash. Nov.37 198F7"!Further, the one adverse ruling on EPA's
right of access has been vacated by the Supreme Court. Outboard
Marine Corp. v. Thomas. 773 F.2d 883 (7th Cir. 1985), vacated.
93 L. Ed. 2d 695 (1986).
III. EPA ACCESS POLICY
EPA needs access to sites for several types of activities,
including:
0 preliminary site investigations;
0 removal actions;
0 RI/FSs; and
0 remedial actions.
Within each of these categories, the scope of the work and the
time needed to complete that work may vary substantially. This
memorandum sets Agency policy on what means should be used to
gain access over the range of these various activities.
EPA may seek access through consent, warrant, administrative
order, or court order. Consent is the preferred means of gaining
access for all activities because it is consistent with EPA policy
of seeking voluntary cooperation from responsible parties and
the public. In certain circumstances, however, the Region should
consider obtaining judicial authorization or issuing an admini-
strative order in addition to obtaining consent. For example,
where uncertainty exists whether a siteowner will continue to
permit access over an extended period, reliance on consent alone
may result in a substantial delay if that content is withdrawn.
When consent is denied, EPA should seek Judicial authori-
zation or amould issue an administrative order. If the judicial
route is choaan, EPA «ay seek an ex parte warrant or a court
order. Warrants are traditionally granted for short-term entries.
Generally, warrants ahould not be used when the EPA access will
involve long-term occupation or highly intrusive activities.
Clearly, warrants art appropriate for preliminary site investiga-
tion*. On the other hand, because of the long, involved nature
of remedial actions, access for such projects should be sought
through a request for a court order. Neither removals nor RI/FSs,
however, can be rigidly matched with a givtn judicial access
procedure. Depending on the activities to be undertaken and the
circumstances at the site, either a warrant or a court order may
be appropriate.
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• 5 -
In deciding whether to use a warrant or A court order when
access is needed for a removal or to conduce a RI/FS, the follow-
ing general principles should be considered. First, if the
activity will take longer than 60 days a court order normally is
appropriate. Second, even if the activity will take less rhan 60
days, when the entry involves removal of large quantities of soil
or destruction of permanent fixtures, a court order may again be
appropriate. Finally, warrants should not be used if EPA action
will substantially interfere with the operation of onsite business
activities. These issues must be resolved on a case-by-case basis.
If EPA needs to gain access for a responsible party who has
agreed to undertake cleanup activities under an administrative
order or judicial decree, EPA may, in appropriate circumstances,
designate the responsible party as EPA's authorized representative
solely for the purpose of access, and exercise the authorities
contained in Section 10A(e) on behalf of the responsible party.
Such a procedure may only be used where the responsible party
demonstrates to EPA's satisfaction that it has made best efforts
to obtain access. A further condition on the use of this procedure
is that the responsible party agree to indemnify and hold harmless
EPA and the United States for all claims related to injuries and
damages caused by acts or omissions of the responsible party.
The responsible party should also be advised that the expenses
incurred by the government in gaining access for the responsible
party are response costs for which the responsible party is liable.
Before designating any responsible party as an authorized repre-
sentative, the Region should consult with the Office of Enforcement
and Compliance Monitoring.
IV. ACCESS PROCEDURES
A. Entry on Consent
1. General Procedures
The following procedures should be observed in seeking
content:
Initial COPtact. Prior to visiting a site, EPA personnel £/
should cf«tider contacting the siteowner to determine if
content will be forthcoming. EPA personnel thould ute this
opportunity to explain E?A~s accett authority, the purpose
for which entry It needed, and the actlvltiet which will be
conducted.
6/ At uted in thit guidance, the ter« "EPA personnel" Includes
contractors acting at EPA's authorized representatives.
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- 6 -
Arrival. EPA personnel should arrive ac the sice at a
reasonable time of day under the circumstances. In most
instances this will mean during normal working hours. When
there is a demonstrable need to enter a site at other times,
however, arrival need not be limited to this timeframe.
Entry must be reasonable given the exigencies of the situation,
Identification. EPA personnel should show proper identifi-
cation upon arrival.
Request for Entry. In asking for consent, EPA personnel
should state the purpose for which entry is sought mnd
describe the activities to be conducted. EPA personnel
should also present a date-stamped written request to the
owner or person-in-charge. A copy of this request «hould
be retained by EPA. Consent to entry Bust be sought
from the owner TJ or the person-in-charge at that time.
If practicable under the circumstances, consent to entry
should be memorialized in writing. A sample consent fora is
attached. Although oral consents are routinely approved by the
courts, a signed consent form protects the Agency by serving as
a permanent record of a transaction which nay be raised as a
defense or in a claim for damages many years later. If a site-
owner is unwilling co sign a consent form but nonetheless orally
agrees to allow access, EPA should document this oral consent by
a follow-up letter confirming the consent.
Since EPA contractors often are involved in gaining access
in the first instance, the Regions should ensure that their
contractors are acquainted with these procedures„
2. Denial of Entry
If consent is denied, EPA personnel or contractors, before
leaving, should attempt to determine the grounds for the denial.
EPA personnel, however, should not threaten the siteowner with
penalties or other monetary liability or make any ocher remarks
which could be construed as threatening. EPA personnel may
explain EPA'a statutory access authority, the grounds upon which
this authority »ay be exercised, and that the authority may be
enforced in swart.
II If EPA's planned site activities will not have a physical
" effect on the property, EPA generally need not seek consent
from the owner of leased property where the Itssee is in pos-
session. The proper person in.those circumstances is the lessee.
But where EPA entry will have a substantial physical effect on
the property, both the lessee and the property-owner should be
contacted since in this instance interests of both will be
involved.
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- 7 -
3. Conditions Upon Entry
Persons on whose property EPA wishes to enter often attempt
to place conditions upon entry. EPA personnel should not agree
to conditions which restrict or impede the manner or extent of an
inspection or response action, impose indemnity or compensatory
obligations on EPA, or operate as a release of liability. The
imposition of conditions of this nature on entry snould be treated
as denial of consent and a warrant or order should be obtained.
See U.S. EPA, General Counsel Opinions, "Visitors' Release and
Hold Harmless Agreements as a Condition to Entry of EPA Employees
on Industrial Facilities," Gen'l and Admin, at 125 (11/8/72).
If persons are concerned about confidentiality, they should be
made aware that business secrets are protected by the statute
and Agency regulations. 42 U.S.C. $ 9604(e); 40 C.F.R. f 2.203(b).
EPA personnel should enter into no further agreements regarding
confidentiality.
B. Warrants
1. General Procedures
To secure a warrant, the following procedures should be
observed:
Contact Regional Counsel. EPA personnel should discuss
with Regional Counsel -the facts regarding the denial of
consent or other factors justifying a warrant and the
circumstances which give rise to the need for entry.
Contact Department of Justice. If after consultation with
Regional Counsel a decision is made to seek a warrant, the
Regional Counsel must contact directly the Environmental
Enforcement Section in the Land and Natural Resources Division
at the Department of Justice. 8/ The person to call at
the Department it the Assistant: Chief in the Environmental
Enforcement Section assigned to the Region. The Assistant
Chief will Chen arrange, in a timely manner, for the matter
to be handled by either an Environmental Enforcement Section
attorney or a U.S. Attorney. The Region must send to the
Environmental Enforcement Section, by Hagnafax or other
8/ This procedure is necessary to comply with internal
~" Department of Justice delegations of authority. Referral
to a local U.S. Attorney's office is not sufficient for CERCLA
warrants. The Environmental Enforcement Section of the Department
of Justice must approve all warrant applications. (See Memorandum
from David T. Buente, Jr. to All Environmental Enforcement
Attorneys, "Procedures for Authorizing Applications for Civil
Search Warrants Under CERCLA" (4/3/87) attached).
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- 8 -
expedited means, a draft warranc application and a shore
memorandum concisely seating why the warranc is needed.
Prepare Warrant Application. The warrant application oust
contain the following:
1) a statement of EPA's authority to inspect;
(see S II, 'supra)
2) a clear identification of the name and location
of the site and, if known, the name(s) of the
owner and operator of the site;
3) a statement explaining the grounds for * finding
of a reasonable basis for entry (i.e., a reasonable
basis to believe that there may be a release or
threatened release of a hazardous substance or
pollutant or contaminant) and the purpose for entry
(i.e., determining the need for response, or choosing
or taking any response action, or otherwise enforcing
CERCLA);
4) affidavits supporting the Asserted reasonable basis
for entry and describing any attempts co gain access
on consent, if applicable; and
5) a specific description of the extent, nature, and
timing of the inspection;
Following preparation of the warrant application, the
Justice Department attorney Vill file the' application with
the local U.S. Magistrate.
EPA nay .ask the Justice Department attorney co ae-ek the
assistance of the United States Marshals Service in executing the
warrant where EPA perceives a danger co che personnel executing
the warrant or where there is che possibility chat evidence will
be destroyed.
£•> seasonable Easis for En cry
A warrant for access on*a civil natter nay be obtained upon
a showing of a reasonable basis for entry. This reasonable
basis nay be established either by presenting specific evidence
relating to che facility co be entered or by demonstrating that
che encry is pare of a neucral administrative inspection plan.
A specific evidence standard is incorporated in SARA as a
condition on EPA's exercise of its access authority: EPA nust
have "a reasonable basis co believe chere nay be a release or
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- 9 -
threat of a release of a hazardous substance or pollutant or
contaminant." $ 104(e)(1). SARA's express specific evidence
standard is consistent with how courts have formulated the
specific evidence test in the absence of statutory guidance.
E.g.. West Point-Pepperell. Inc. v. Donovan. 689 F. 2d 950, 958
(1Tth Cir.1982)(tnere must be a "snowing of specific evidence
sufficient to support a reasonable suspicion of a violation").
In drafting a warrant application, conclusory allegation*
regarding the specific evidence standard under subsection 104(e)
will not suffice. Courts generally have refused to approve
warrants where the application contains mere boilerplate asser-
tions of statutory violations. Warrant applications have been
granted, on the other hand, where the application contained
detailed attestations by government officials or third-party
complaints which have some indicia of reliability. Ideally,
EPA warrant applications should contain an affidavit of a person
who has personally observed conditions which indicate that there
may be a release or threat of a release of a hazardous substance.
If they are available, sampling results, although not required,
should also be attached. Warrant applications based on citizen,
employee, or competitor complaints should include details that
establish the complainant's credibility. 9/
C. Court Orders
The provisions in CERCLA authorizing EPA access nay be
enforced by court order. To obtain a court order for entry, the
Region should follow the normal referral process. If only access
is .required, the referral package can obviously be much abbrev-
iated. If timing is critical, EPA HQ will move expeditiously
and will refer the case orally if necessary. The Regions, how-
ever, should attempt to anticipate the sites at which access may
prove problematic and should allow sufficient lead tine for the
referral process and the operation of th* courts. The Regions
should also not enter lengthy negotiations with landowners over
access. EPA and DOJ are prepared to litigate aggressively to
establish EPA's right of access.
9/ If information gathered in a civil investigation suggests
~" that a criminal violation nay have occurred, EPA personnel
should consult the guidance on parallel proceedings. (Memorandum
fron Courtney Price to Assistant Administrators et al. , "Policy
and Procedures on Parallel Proceedings at che Environmental
Protection Agency" (1/23/84)). Us« of CERCLA'• information-
gathering authority in criminal investigations is addressed in
separate guidance. (Memorandum from Courtnty M. Prict to Assistant
Administrators et al., "The Use of Administrative Discovery
Devices in the Development of Cases Assigned to the Office of
Criminal Investigations" (Z/16/84)).
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• 10 -
Prior to seeking a court order, EPA should request access,
generally in writing, and assemble the record related to access.
The showing necessary to obtain a court order is the sane as for
obtaining a warrant: EPA muse show a reasonable basis co believe
chat there may be a release or a chreat of a release of a hazardous
substance or pollutant or contaminant. An EPA finding on whether
there is reason to believe a release has occurred or is about to
occur must be reviewed on the arbitrary and capricious standard.
§ 104(e)(5) (£)(i). If the matter is not already in courc, EPA
must file a complaint seeking injunctive and declaratory relief.
Simultaneous to filing the complaint:, EPA nay, if necessary,
file a motion, supported by affidavits documenting the release
or threatened release, requesting an immediate order in aid of
access. If the matter is already in litigation, EPA may proceed
by motion to seek an order granting access. 107
In a memorandum supporting EPA's request for relief it
should be made clear that by invoking judicial process, EPA is
not inviting judicial review of its decision to undertake response.
action or of any administrative determinations with regard to the
response action. Section 113(h) of SARA bars judicial review
of removal or remedial action except in five enumerated circum-
stances. A judicial action to compel access is not one of the
exceptions. Statements on the floor of the House and the Senate
confirm that EPA enforcement of its access authority does not
provide an opportunity for judicial review of response decisions.
Senator Thurmond, chairman of the Judiciary Committee, remarked
that when EPA requests a court to compel access "there is no
jurisdiction at that tine to review any response action . . .
j_0/ Parenthetically, it should be noted that the broad equitable
power granted to courts in Section 106 can also be relied
on to obtain a court order. An additional source of authority
for courts in this regard is the All Writs Act., 28 U.S.C. S 1651.
The Act authorizes federal courts to "issue all writs necessary
or appropriate in aid of their respective jurisdictions . . . ."
28 U.S.C. S 1651. This authority ''extends under appropriate
circumstance*, to persons who, though not parties to the original
action or e^aged in wrongdoing are in a position to frustrate
the implementation of a court order . . . ." United States v. New
York Telephone Co.. 434 U.S. 159, 174 (1977). Thus, the All Writs
Act nay prove useful as a means of compelling persons not a party
to a consent decree to cooperate with EPA and other settling
parties in execution of the decree. The use of the All Writs
Act, however, may be limited in light of the Supreme Court's
interpretation of the Act in Pennsylvania Bureau of Correction v.
United States Marshal Service. 8b L. Ed. Zd 189 (19b5).
-------
[T]he court may only review whether the Agency's conclusion that
there is a release or threatened release of hazardous substances
is arbitrary or capricious." 132 Cong. Rec. S14929 (October 3
1986) (Statement of Sen. Thurmond); 132 Cong. Rec. 119582 '
(October 8, 1986) (Statement of Rep. Glickman); see United States
v. Standard Equipment. Inc.. No. C83-252M (W.D. Sash. Nov" 3, 1986).
D. Administrative Orders
If a siteowner denies an EPA request for access, EPA may
issue an adminstrative order directing compliance with che
request. S 1 04(e)(5)(A). Each administrative order must include
a finding by the Regional Administrator chat there exists a
reasonable belief that there may be a release or threat of release
of a hazardous substance and a description of che purpose for che
entry and of the activities to be conducted and their probable
duration. The order should indicate the nature of the prior
request for access. Further, the order should advise Che re-
spondent chat the administrative record upon which the order was
issued is available for review and thac an EPA officer or employee
will be available co confer with respondenc prior Co Che effeccive
dace of che order. The lengch of che cine period during which
such a conferences may be requesced should be reasonable under
che circumstances. In deciding what is a reasonable cine period,
consideracion should-be given co che incerference access will cause
with onsite operations, the -threat co human healch and che environ-
ment posed by the site, and the excenc of prior concaccs wich che
respondenc. The order should advise che respondenc that penalcies
of up co $25,000 per day may be assessed by a courc againsc any
parcy who unreasonably fails co comply wich an order. S 104(e)(5).
Following che time period for che conference and any conference,
Che issuing official should send a document co the respondenc
summarizing any conference, EPA's resolution of any objeccions.
and scacing che effeccive dace of che order.
If. following issuance of an adminiscracive order, che sice-
owner continues co refuse access co EPA. che order may be enforced
in federal swart. EPA should noc use self-help co execuce orders.
Ceurcs art required co enforce adminiscracive orders where chere
is a reasonable basis co believe chac chere may be a release or
chreac of a release of a hazardous substance. EPA's decerminacion
in chis regard ausc be upheld unless ic is arbicrary and capricious.
S 104(e)(5)(B)(i). L7A will seek penalcies from chose parties who
unreasonably fail co comply wich orders.
All adminiscracive orders for access must be concurred on by
che Office of Enforceraenc and Compliance Monicoring prior co
issuance.
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- 12- -
DISCLAIMER
The policies and procedures established in chis document are
intended solely for the guidance of government personnel. They
are not intended, and cannot be relied upon to create any-rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The Agency reserves Che right co act at
variance with these policies and procedures and to change Chen at
any time without public notice.
Attachments
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CONSENT FOR ACCESS TO PROPERTY
Name
Address of Property:
I consent co officers, employees, And authorized
representatives of the United States Environmental Protection
Agency (EPA) entering and having continued access to ay
property for the following purposes.-
[the taking of such soil, water, and air samples as may
be determined to be necessary;]
[the sampling of any solids or liquids stored or disposed
of on site-, ]
[the drilling of holes and installation of monitoring wells
for subsurface investigation^
[other actions related to the investigation of surface or
subsurface contamination-,]
[the taking of a response action including . . . .]
I realize that these actions by EPA are undertaken pursuant
to its response and enforcement responsibilities under the
Comprehensive .Environmental Response, Compensation and Liability
Act (Superfund). 42 U.S.C. S 9601 et seq.
This written p«r«i«sion i« givtn by at voluntarily with
knowlege of my right to refuse and without tnreats or promises
of any kind.
Date Signature
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Procedures for Authorizing Application
for Civil Search Warrant* Under CERCLA
April 3, 1987
To
All EES Attorneys
Buente, Jr.
Ervironaental
Saction
Undar i 104(a) of CERCLA, as amended by SARA, the
Unitad statac aay seeX acceas by warrant, edainistrative order,
or court ordar. If access i» obtainad by administrative ordar,
tha appropriata docuaents ara issued by ralavant eliant agencies.
If accacc is to ba obtainad by court ordar, than tha Assistant
Attornay Canaral of tha Land and Natural Resources Division Bust
approva tha coaplaint, upon rafarral fro* tha ralavant eliant
agancy according to ordinary procaduras. For aeeass to ba sought
through application on a civil CERCLA warrant,1 tha instant
•aaorandua will confirm tha proeaduras to ba usad by tha
DapartBant of Justica.
Undar 15.320-X-2 of tha U.S. Attorney's Manual,
application for warrant undar CERCLA Bay not ba handlad
unilaterally by tha U.S. Attornays. Applications for such
warrants Bust ba coordinatad through tha Environaental
Enforcaaant Saction.
Claaranca through tha Environaental Enforceaent Saction
is iaportant for a variaty of raasons. First, tha natura of tha
govarnaantal activitias involvad undar CERCLA civil warrants Bay
ba such broadar and last considerably longer than an inspection
undar the other federal anvironBental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environBental sampling. Undar CERCLA, access Bay ba
•ought under a warrant for not only sampling, but even simple
1 The Beaorandua does not cover procedures for seeking a
criminal search warrant where a CERCLA violation Bay be
involved. All such Batters are to be referred to the Director,
Environmental Crimea Unit, EES.
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• 2 -
reBOval-type activity, e.g., security/fencing. United drum
removal. The greater relative complexity of the governmental
activity involved can be expected to provoke sore challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCLA warrants Bay be much more complex.
Second, this is a relatively new and vital area of the lav. He
Bust ensure that maximum efforts are Bade to develop this
critical area of the lav in an excellent Banner. EES lavyers
aust Bake all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts end legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCLA warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these Batters so that the Division's Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
aust be done on an expedited basis so that client agencies'
program objectives are achieved. Moreover, our resources Bust
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these Batters, we will use the following
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer vhen the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short BeBorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Levyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops ^between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lavyer Bay approve
the application. If such*a dispute develops, it Bust be brought
to the attention of the Chief or Deputy Chief, CIS for
resolution.
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- 3 -
4. Handling of these tatters is to b« afforded
priority on our docket. Moreover, the Chief or Assistant Chi«f
of the Appellate Section shall b« advised of each application
request by the EES Assistant Chief or St. Lawyer as soon as
possible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal Batters.
5. All civil actions to mntorc* civil CERCLA warrants,
by way of application for civil contempt or other judicial
orders, shall be authorised in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCLA civil
warrant natters, contact John Fleuchaus, ORCM-Waste, 382-3109.
Attachment
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9832,9
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, o.c. 20*«o
I IN I 9 WS7
MEMORAKDOM
or
*OLIO MArri AND IMIMCCNCY ACSPONSC
SUBJECT: Cost Recovery Actions/Statute of Limitations
PROM: Gene A. Lucero, Director (jlfoJL n*
Office of Waste Programs Enforcement
TO: Directors, Waste Management Division,
Regions I, iv,v,vn, VIII
Director, Emergency and Remedial Response Division,
Region XX
Directors, Hazardous Waste Management Division,
Regions XXX, VI
Director, Toxic and Waste Management Division,
Region IX
Director, Hazardous Waste Division, Region X
The purposes of this memorandum are to:
1. Update EPA's policy on timing of cost recovery Action (This
memorandum supersedes Timing of Cost Recovery Action, G.
Lucero, October 7, 1965).
2. Request that you bring your personal attention to the
accuracy of data being used to brief congress on the status
of cost recovery-efforts at sites.
3. Request the initiation of cost recovery action for those
sites where the statute of limitations date is approaching.
It remains the Agency's goal, where appropriate, to seek recovery
of all monies expended at Superfund sites. Moreover, to promote cost
recovery and obtain interest, the Agency will transmit demand letters
as esrly as practicsble. Additional guidance on the timing and content
of demand letters, including guidance on maximizing interest, will be
sent in the near future.
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9832. 9
I. Timing of Cost Recovery
Section 113(g)(2) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLX), as amended by the Superfund
Amendments and Reauthorization Act (SARA), contains specific provisions
on the statute of limitations for cost recovery actions under section
107. This memorandum does not set forth the statute of limitations for
pre-SARA response actions. Section 113(g) requires that cost recovery
actions be commenced:
A. for removal actions, within three years after completion of
the removal action. Where the Agency has made a deter-
mination to grant a waiver under section 104(c)(l)(C) for
continued response action, the cost recovery action must be
brought within six years after this determination; and
B. for remedial actions, within six years after the initiation
of physical on-site construction of the remedial action. If
the remedial action is initiated within three years after
completion of the removal action, the removal costs .may be
recovered under the remedial action statute of limitation*
for cost recovery (i.e. within six years after the initiation
of on-site construction of the remedial action) .
The term "commenced" as used in section 113(g) means a
filed section 107 cost recovery action. As a matter of policy, the
Agency views completion of the removal action as the day the cleanup
contractor demobilizes at the site and completes the scope of work
identified in the original or modified action memorandum. The final
Pollution Report (POLREP) submitted by the OSC normally contains this
information. (See Superfund Removal Procedures, Revision #2,
August 20, 1964). Remedial investigations/feasibility studies (RX/FS)
may fall within the statutory definition of'removal action. For
purposes of cost recovery they should be treated as a separate removal
action. Therefore, a cost recovery action should be commenced within
three years of completing the original removal (exclusive of the RX/FS)
unless phys-i-o*l on-site construction has started.
Although section 113(g)(2)(A) of CERCLA, as amended, allows three
years from completion of a removal to initiate cost recovery action, it
still remains our policy to begin cost recovery activity within one
year after completion of the removal. For remedial actions, Agemcy
policy requires that cost recovery activity be initiated within 18
months after the signing of the Record of Decision (ROD) or during the
later phase of construction of the remedial action, if the construction
is expected to take more than two years after the ROD is signed.
Adherence to these time frames will ensure that current, not stale,
evidence and knowledgeable witnesses will be available to support the
prosecution of the action and that the Agency will not be faced with
statute of limitation risks.
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9832*9
At this point it is appropriate to clarify the Agency's position
on priorities for removal cost recovery referrals. Due to the resource
commitment of litigation, the Agency has established that cost recovery
cases where the costs exceed $200,000 should take priority for
referral. There is no prohibition on referring cases under 5200,000.
However, the judicious use of limited resources dictates that the
Agency first address those sites which promise a better return on the
Agency's tine and money investments. Where appropriate, eases under
$200,000 have been and should continue to be referred. Selection of
cases for referral is a Regional determination which should be based on
a variety of factors including strength of evidence, financial
viability of defendants and likely return to the Agency including
enforcement costs.
Section 122(h) of CERCLA now provides the Agency with the
authority necessary to compromise claims for cost recovery actions
where the total of all response costs expended at a site is less than
$500,000. This new authority should assist the Agency in addressing
the lower dollar value cases without litigation where an appropriate
settlement can be made. The Agency is currently developing procedures
for settlement of claims under $500,000.
II. Update of Information
Attached for your review is information on completed removals for
each of your Regions. Please review this information and, using the
comment field provided, indicate your schedule for referral of cost
recovery action. Cost recovery actions may not be appropriate for some
sites: for example, where no PRP can be identified, or where the PRPs
are not financially viable. If you do not intend to refer the case,
please note this fact. Where you decide that cost recovery action is
inappropriate, you should explain the decision not to take cost
recovery action in a signed memorandum in your files. You should
assume that there will eventually be audits of these cases, by
Headquarters, and perhaps the Inspector General and Congressional
Oversight Committee*.
Please use the following categories when completing the comment
field for cites where actions will not be referred:
1) No PRPs identified
2) PRPs not financially viable
3) Questionable evidence
4) Questionable legal ease
5) other (specify)
The accuracy and completeness of this information is critical to
our ability to demonstrate the effectiveness of EPA'a cost recovery
program. The current data, which has been provided in response to
Congressional requests, indicates that EPA has initiated cost recovery
efforts at only 29% of the completed removal sites. (They account for
approximately 52% of the available obligations). To the extent
-------
9832*9
information was available, the above figure on cases subject to cost
recovery was determined by subtracting from the universe of completed
removals, those where it appeared that cost recovery' is inappropriate.
While we believe that our data base may not be current, the low
level of case initiation does point out the need for serious management
attention. A rtftrral should be planned in this or next years
Superfund Comprehensive Accomplishments Plan (SCAP) and so indicated on
the attached reports. Where action is not appropriate, it is critical
that the data base be adjusted to so indicate. Please provide your
comments and schedule for activity on the attached material within two
weeks.
Ill. Initiation of Actions
If, after review of the attached site information, there are any
cases which require filing immediately or in the near future, please
•dvise OWPE, OECM and the Environmental Enforcement Section of the
Justice Department immediately, so that we may expedite the referral
and filing process. All planned referrals should be incorporated into
the Integrated SCAP.
We will provide you with updates of removal completions and
ongoing remedial actions (similar to the attached charts) on a
quarterly basis for your review and comment. We also solicit your
suggestions on the chart format and content.
Any questions on this memorandum or the attached information may
be addressed to Janet Parella of my staff. She may be reached on
PTS 382-2034.
ATTACHMENTS
cc: Edward E. Reich, OECM
David Buente, DOJ
Regional Counsel*, Regions Z-X
-------
} UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 12 !987
MEMORANDUM OSWER* 9833.2
SUBJECT: Consent Orders and the Reimbursement Provision
Under Section 106(b) of CERCLA
(*&£& t^p
{**}-
FROM: Gene A. Lucero, Director
Office of waste Programs
Steven Leifer, Acting Associate
Enforcement Counsel for Waste
Office of Enforcement and Compliance Monitoring
TO: Addressees
The Superfund Amendments and Reauthorization Act (SARA)
amended section 106 of CERCLA to add section 106(b)(2).
This provision entitles persons to seek reimbursement from the
Superfund for costs spent in complying with section 106 orders.
Congress included the provision as an incentive for PRP's to
take response actions even though they migh,t disagree with
EPA's unilateral order. It preserves their right to contest
issues of liability or the nature of the response action at a
later date.
This memorandum provides guidance regarding terms of
consent orders to preclude parties who have signed consent
agreements to subsequently seek reimbursement under section
106(b) To assure that parties to a consent order or decree
do not *eek-reimbursement by contesting issues of liability
in a l4t«r reimbursement proceeding, consent orders should
contain a stipulation that the respondents) waives its right
to seek reimbursement under section 106. For example: "In
entering into this Consent Order, the Respondent waives any
right to seek reimbursement under Section 106(b)(2) of CERCLA
for any past costs and costs incurred in complying with this
order.*
Reimbursement issues under SARA will be addressed more
comprehensively in the specific guidance on the reimbursement
procedures, and in revisions to the August 1983 guidance on
Administrative orders under $106.
-------
If you have any questions please call Rich Hopen at
382-2035.
Addressees: Directors, Waste Management Division,
Regions I, IV, V, VI, vu, VIII
Director, Air & Waste Management Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III, X
Director, Toxic & waste Management Division,
Region IX
Regional Counsels,
Regions I-X
-------
OSWER * 9834.T
Fedarml Register / VoL 52. No. 125 / Tuesday. June 30. 1967 / Notices 24333
Abttract: Petroleum refineries and
chemical manufacturers must limit
b«nsent emissions from MW and
exiating fugitivi amission sources.
Ownan and operaton must aubmit to
EPA one-time notifications for new
coiutruction. modification, and start-up.
They must also tubmit (ami-annual
report* of the number of valve*, pumps.
and comprestore for which leaks were
detected. EPA use* the collected
Information ai the basil for enforcement
actions as well as to spot trend* and
plan program strategies.
Respondent* Chemical manufacturers
and petroleum refineries.
Estimated Annual Burden: 91.087
hours.
Office of Pesticides and Toxic
Substance*
TiUe: Household Survey* of Chemical
Product Usage (EPA 1CR »1200). (This
is a renewal without revision of a
currently approved collection.)
Abstract: These annual surveys will
provide information on household use
of common chemical products. From
the results. EPA will derive exposure
assessments for use in making
regulatory decisions required by the
Toxic Substances Control Act.
Respondents: Individuals and
households.
Estimated Annual Burden; 800 hours.
Ageocy PRA Clearance Requests
Completed by OMB
EPA 1CR *O15& Pesticide Application
Certification Form. Training and
Examination of Applicators: was
approved 0/17/87 (OMB '2070-0029:
expires 6/30/90).
EPA 1CR *0013. Trade Secret Clearance
Justification for Pesticides, was
extended 0/18/87 (OMB «2070-OOS3-
expire* 9/30/87).
EPA 1CR «1160, NSPS for Wool
Fiberglass Manufacturing (Subpart
PPP) Information Requirements, was
approved 0/12/87 (OMB *2060-0114;
expires 6/30/90).
EPA ICR *131S, Information Request for
Development of NESHAP for
Chromium Plating and Anodizing
Operations, was approved 6/11/87
(OMB '2060-0142 expire* 12/31/87).
EPA ICR 1362. NESHAP for Coke Oven
Emissions from Wet-Coal Charged By*
Product Coke Oven Batteries, was
approved 6/15/87 (OMB «2060-0144:
expites 6/30/90).
Send comments on the above
abstract!*) to:
Patricia Minami. PM-23. U.S.
Environmental Protection Agency.
Information and Regulatory Systems
Division. 401 M Street. SW..
Washington. DC 20460
and
Susan Dudley (ICR 1200) and Nicola*
Garcia (ICR* 0840 and 1153), Office of
Management and Budget Office of
Information and Regulatory Affair*.
New Executive Office Building. 728
Jackson Place. NW.. Washington. DC
20503
Dated: )*a* 24.1M7.
DeaW). FkMfaa.
Director. Information and Regulatory Syttean
Diviuan.
|FR Doc. «7-l«aOO Filed 6-29-87: IMS am)
Acnosc Notice.
Sdefice) Ao'vtsory
Commrtte*; Open Meeting
July n throush 22. 1987.
Under Pub. L 92-463. notice is hereby
given of s meeting of the Executive
Committee of the Science Advisory
Board on July 21 through 22.1967. The
meeting will be held at the U.S.
Environmental Protection Agency. 401 M
Street SW. On July 21 the meeting will
be held in the Administrator's
Conference Room. 1101. The meeting
will begin at fcOO ejn. and will adjourn
at approximately &00 p.m. The meeting
)nly 22 will be held in the North
Conference Center Room « 3 from WX)
.a-in. to approximately 1230 noon.
Issue* to be discussed at the matting
include: a status report of the Board's
review of scientific issues related to
municipal waste combustion: working
relationships with the Science Advisory
Panel: consideration of a request from
the Deputy Administrator to form an
indoor air panel: reports of committees
and subcommitteer. and other issues of
member interest
The meeting is open to the public. Any
member of the public wishing to attend,
obtain information, or submit written
comments should contact Dr. Terry F.
Yosie. Director. Science Advisory Board
or Mr*. Joanna Foellmer located at 401
M Street. SW. Washington. DC 20460 or
call (202) 382-4126 by dot* of business
July 16.1987.
Dete& )UM M. 1M7.
Teoy F. Yeete.
Seteaee Adritory Beard
|FR Doc r-14801 Filed ft-a-47: 8*5 «m|
[Off 00148; «m««a4-»l
n There will be a 2-day
meeting of the Slate FIFRA Issues
Research and Evaluation Croup
(SFIRECJ. The meeting will be open to
the public.
OATt Monday. July 20 and Tuesday.
July 21. 1987. beginning at 830 a.m. each
day and ending by 4 JO p-m. on Tuesday,
Julyn.
ADOttcs*: The meeting will be held ak
The Hyatt Regency. Crystal City. 2799
Jefferson Devis Highway. Arlington. VA,
(703-186-1234).
warrHoi a»oi»*AT>o« CONTACT:
By mail: Philip H. Cray. Jr. Office of
Pesticide Programs fTS-TeeC). 401 M
St_ SW. Washington. DC 20460.
Office location and telephone number.
Rm. 1115. Crystal Mall Building No. 2.
Arlington, VA, (703-557-7096).
•UPtLfMINTAftY WPONMATIOK This will
be the twenty-seventh meeting of the
full Croup. The tentative agenda thus far
include* the following topics:
1. Action Items from the March 1987
meeting of the SFIREC.
2. Regional reports.
3. Working Committee reports.
4. Other topics which may arise.
Dated: IUM S. isV.
nnejlii a Caatpt
Director. Office effettieidt Program*.
(FR Doc r.14670 Fued t-a-V: tM «m|
Sttlt rirnA IsauM MtMsvcti sjnd
EvsAtatton Group (SFmCQ); Opeti
AOtMCT: Environmental Protection
Agency (EPA).
Supcrtund «»roQrafn; De Mintmia
Contributor S«ttttm»ntt
AOKNCR Environmental Protection
Agency.
*cno»e Request for public comment
•uasaimrr The Agency is publishing
today its Interim Guidance on
Settlements with IV Minima Waste
Contributor* under section 122(g) of
SARA in order to inform the public end
to solicit public comment on this
important aspect of the Superfund
enforcement process. This document
provides guidelines for determining
which potentially responsible parties
("PRPs") under section 107(a) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1960 rCERCLA" <* "Superfund-).
as amended by the Superfund
Amendments and Reautnorization Act
of 19M rSARAl. may qualify for
treatment as de minimi* waste
contributors pursuant to section
122(g)(lHA) of SARA. It also provides
-------
24334
Federal Register / Vol. 52. No. 125 / Tuesday. |une 3a 1987 / Notice*
guidelines for negotiating with dt
minimit waste eontributon and for
entering into settlements with nek
parties pursuant to section 122(g] of
SARA.
This publication does not address
qualifications for or MttltmenU with dt
minima landownen under section
IZZlgMUfB) of SARA, which will be
covered by separate guidance.
DATE Comments must be provided on or
before August n. 1M7.
Aoomta. Comments should be
addressed to Janice Linett. U.S.
Environmental Protection Agency.
Office of Enforcement and Compliance
Monitoring, Waste Enforcement
Division. LB-134S. 401 M Street. SW.
Washington. DC 20480. (212) 3M-3077.
•on svsmoot MPOwaumoN CONTACT
Janice Linett. U-S. Environmental
Protection Agency. Office of
Enforcement and Compliance
Monitoring. Waste Enforcement
Division. LE-134S. 401 M Street. SW.
Washington. DC 20460. (202) 382-3077.
sum*»jiMTAjiY INEOKMATIOM; Section
122{g) of SARA provides EPA with
discretionary authority to enter into
expedited, final settlement* with oe
mintmit waste contributors to
Superfund sites. Dt minims waste
contributors are those generator and
transporter PRPs who. in the judgment
of the Agency (as delegate* of the
President), contributed hazardous*
substances in an amount and of such
toxic or other hazardous effects as to be
minimal in comparison to other
hazardous substances at the facility.
Section 122(g)(l)(A). Pursuant to the
requirements of section 122(g)(l), dt
minimit contributor settlements must be
practicable and in the public interest, as
determined by the Agency, and must
involve only a minor portion of the
response coats at the facility concerned
with respect to aach settling party.
Dt minimit contributor aetrtemsnts
under section 122(g) of SARA offer
potential advantages to PRPs and the
Agency alike. For dt minima pertiea.
such settlements can bt an effective
means of achieving an early and
equitable resolution of their liability
with the expenditure of reduced legal
fees and other transaction costs. For the
Agency, section 122(g) settlements
provide a means of simplifying the
CERCLA enforcement Dracoes throvgh
early elimination from litigation and
negotiations of the often numerous
minimal contributor PRPs. D* minimit
settlements also offer the potential for
increased numbers of voluntary
settlement agreements. This is because
dc. minimit contributors may be
attracted by in* advantages offered by
section lZ2(g) settlements, and non-de
minimit perties raey be encouraged to
settle as a result of the revenues raised
through such agreements.
To use the dt minimit settlement
provision most effectively, the Agency
will focus on schieving settlements in
which multiple4? minima PRPs at a
particular site are "cashed out" under
one comprehensive agreemant'De
minimit parties should be encouraged to-
organize and present multiparty
settlement offers to the government
Further, to limit governmental and PRP
transastiM) costs, dt minimit
settlements should be standardized in
form and should not be the subject of
lengthy negotiations.
In the typical dt minimit settlement.
the settling parties, in exchange for a
payment, will receive statutory
contribution protection under section
122(g)(5| of SARA and may be granted a
covenant not to sue where such a
covenant is consistent with the public
interest under section 122(g)(2). The
scope of the covenant not to sue will
vary depending upon the timing of the
settlement the amount of information
available to the Agency about site PRPs
and response costs, the amount of any
premium payments recovered through
the settlement and other relevant
considerations.
The Agency is aware that dt minima
contributor settlement* are the subject
of great interest to potentially
responsible perties and the public.
Therefore. EPA is publishing this interim
guidance to provide wide public
distribution of information on this
aspect of SARA implementation and to
gain the benefit of public comment EPA
will reevaluate this interim guidance
based upon its experience with its
implementation and upon any public
comments that may be received.
The interim guidance follows.
Deled: law U.U»7.
Rsefensl Cewmets
RetKMsl WaM* Manefeownt Diviwor
Aetrng AstisMfif Admiaittntorfrr
nt onif Cemptiwice M
Dated: |unt 19. 10S7.
J. WavkMrForter.
Auiuant Ad.nitHitntor for Solid Waste
Subiect: Interim Cutianc* en SettlttnenM
with Of Minma Waste Contributes
•Oder Section t22tl) of SAItA
From: Eawsrd E. Reich. Acting Assistant
Administrator for Enforcement aad
Compliance Monitoring
|. Winston Porter. Assistant Administrator
for Solid Wane snd Emergency
Response
To: Regional Administrator*
June 19.MB7.
(.Purpose
The purpose of this memorandum
provide interim guidance for
determining which PRPs qualify for
treatment as dt minimit waste
contributors pursuant to section
122(g){lHA) of the Superfund
Amendments and Reauthorization A
of 1986 ("SARA"). Pub. L. No. 99-«9S
and to present interim guidelines for
settlement with such dt minimit par
pursuant to section 122Jg) of SARA.
Guidance on dt minimit landownen
under section 122(g)il)(B) of SARA *
be provided by separate memorandu
IL Background
When the barm is indivisible.
generators and transporters of
hazardous substances disposed of at
facility are strictly and jointly and
severally liable for all costs of remov
or remedial action incurred by the
United States under section lOTJs) of
Comprehensive Environmental
Response. Compensation, and Uabili
Act of1980 rCEROA"). 42 U.S.C.
9807(s). as amended by SARA. Altho
this liability is not sututonly limited
the amount or type of hazardous
substance generated or transported U
the facility. Congress, in section
122(gHlHA) of SARA, recognized the
concept of the de minimit waate
contributor. LM- the potentially
responsible party ("PHP") who satiafi.
the requirements for liability under
•action 10T(aJ of CERCLA and who dt
not have a valid section \Oflb) defens
bat who has made only e minimal
contribution (by amount and toxidty)
comparison to other hazardous
substance* at the site.
Since the beginning of theSuperfuni
program, the Agency has been faced
with the problem of how to treal dt
minimit contributor PRPs. The legal fr
and other transactions costs of
negotiating and litigating with the
Government, compounded by the
potential costs of asserting and
defending claims for contribution with
other PRPs at the site, often could
exceed the amount such minimal
contributors would be expected to pa\
even under s settlement or a judgment
unfavorable to them. As a result, dt
minimit parties often seek a swift and
efficient means to pay a sum mot it
commensurate with their involvement
the site and allows them to be dismissi
from further negotiations and litigation
The Agency «lso needs s method for
-------
Federal Register / Vol. Si. No. 125 / Tuesday, [tint 30. 1087 / Notices
24S35
achieving MttitmtflU with minimal
wMit contributors in onto to make
negotiations and litigation more
ejanageeble.
EPA formally recognized and
endorsed the concept of tht de minimi*
contributor settlement in the Inttrin
CERCLA Settlement Policy ("Settlement
Policy-). SO PR 9034 (Feb. &. 19BS). The
Settlement Policy advised that
negotiations with de minima parties
should focus on achieving cash
settlements aad should be limited to low
volume, low toxicity diaposen who
normally would not nuke • significant
contribution to the costs of decamp in
any event
Section 122(tJ of SARA ' is in large
pert a codification of the Agency's
position with regard to settlements with
de minima parties. While recognizing
the liability of such panics, that section
gives EPA discretionary authority to
enter into expedited settlements with de
minima waste contributors and dt
minimi; landowners. Section 122(g)(l)
generally provides that when EPA
determines that a settlement is
-practicable and in the public interest*'
the Agency shall, "as promptly as
possible." seek to reach a "final"
settlement with a tit minima PRP by
consent decree or administrative order.
if the settlement "involves only a minor
portion of the response costs at the
facility concerned." Section I22(g)[lj. A
dt minimi* contributor settlement with a
generator or transporter is authorized if
these criteria are met and if the Agency
determines that both "the amount of the
hazardous substances contributed by
that party to the facility." and "the toxic
or other hazardous effects of the
substances contributed by that party to
the facility." are "minimal in comparison
to other hazardous substances at the
facility.- Section 122(g)n)(A). Section
122(g) further authorize* settlements
with de minima landowners as defined
by section i22(g)|l)(B) of SARA.
Because the Agency will be providing a
separate guidance document on de
minimi* landowners under SARA, this
document will focus on the definition
and settlement requirements of the de
minimi* waste contributor.
HI. Guideline* for Negotiating With De
Mlniaus Puttee
De minima contributor settlements
under section 122(g) of SARA can be an
effective mean* of providing de minima
parties with an early and equitable
resolution of their liability while
minimizing their transaction costs. Of
minimi* settlements can be particularly
' Tlw Ml Mil «f MCliOfi 122t|) of SARA »
i» w Ihu
uaefvl to the Government to complex
cases involving numerous PRPs. In such
cases, de minimi* settlements offer the
Agency a method of simplifying
CERCLA enforcement actions through
early elimination of the sometimes
numerous minimal contributor PRPs
from litigation aad negotiation*. De
minimi* settlements may also increase
the amount of response coats lecoveied
through voluntary settlement
agreement*. Tbia is because de minima
parties (who otherwise might not have
participated in settlements) say be
attracted by the advantages offered by
de minimi* settlements and encouraged
by the fact that their funds will be used
to pay costs of cleanup, rather than
transaction costs. Finally, de minimi*
settlements may increase the likelihood
of settlement with the ma for waste
contributors by raising sufficient
revenues to reduce the overall liabilities
of such panics.
To use the de mtnimit settlement
provision most effectively, the Agency
will focus on achieving comprehensive
settlements in which interested de
minima PRPs at a particular site arc
addressed in one settlement agreement
De minima parties should be
encouraged to organize and present
multi-party settlement offers to the
Government To limit Governmental and
PRP transaction costs, de minima
settlements should take the form of
standardized agreements, and the
Regions should try to avoid lengthy
settlement negotiation* with de minimi*
parties.
At sites with dozen* or hundreds of
PRPs. the de minima settlement
authority will be particularly useful la
helping to simplify the negotiation
process. In situations of this kind, it is
particularly important for the Agency to
gather and release information about
PRP waste contributions to the site at an
early stage, so that potentially de
minima parties can identify and
organize themselves to present
settlement offers to the Government
Where sufficient information la
available, the Agency may tentatively
identify-potentially de minima parties in
the information released to PRPs under
section I22(e)(l) of SARA. The Agency
may also consider negotiating
separately with PRP Steering
Committees representing substantial
numbers of de minima parties. In
addition, the Agency may with to
consult with the major. i*~ non-d*
minimi*, parties during the de minimi*
negotiations uVorder to facilitate a later.
comprehensive settlement with such
maior panics. This is because, among
other things, the volume and toxicity
criteria established by the Agency for
participation in the de minima
settlement may have a significant effect
on the willingness of the maior parties
to settle.
to determining the timing of a de
minima settlement the Agency must
consider a variety of factors: the amount
of Information available about the PRPe
and their waste contributions to the site;
the amount of Information available
about the costs of remediating site
contamination: the nature of the
reopenen included in the covenant not
to cue the amount of the premium to be
paid by the settling parties: and the
volume aad toxicity criteria used by the
Agency to distinguish between the de
minimi* and maior parties at the site.
The approach taken at a particular site
should be designed to promote
voluntary settlement, minimize
transaction costs for both the PRPs and
the Government addres* the legitimate
interests of the de minima and maior
parties st the site, and assure that the
level of risk to the Agency is acceptable.
The Regions are not encouraged to
devote extensive effort to assessing
proposals for de minima settlement
unless there is a reasonable prospect of
successful settlement.
The Agency may consider early
settlement where complete information
concerning PRP contributions and the
nature of the remedy is not yet
available. In such early settlements, the
reopenen should be more expansive.
and/or the premiums should be
substantial In addition, volume and
toxicity levels should normally be set
low. so that parties who may
legitimately be trested as major do not
instead end up being treated at de
minima. Where the Agency determines
that It is more important to have finality
in releases and reopenen aad more
certainty in the definition of premiums
and volnme/toxicity levels, negotiations
lor de minima settlement* should be
deferred until the remedial investigation
and feasibility study have been
-completed and the remedy and the
relative PRP contributions have been
definitively identified.
IV. GuMcuaes for Defining the De
Because site conditions, remtdml
program*, number of PRPs and other
considerations vary tremendously
among sites, the approach taken by this
guidance, consistent with section
122(ij(l )( A) of SARA, is that the df
minimi* contributor will be defined on a
site-specinc basis. To qualify as s de
minima generator or transporter, the
PRP must nave contributed an amount of
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24336
FsjdataJ Rtgtot«f / Vol. 52. No. 125 / Tue«d>y. Jane 30. 1MT / Notices
hazardous eubetances which la minimal
in companion to the taut aowMt at UM
facility. The- PRP must also have
contributed hazardous substances
which art not significantly more toxic
and not of signtncaatiy greater
hazardous affect than other hazardous
substances at the facility, at wall aa
meeting tha other conditions act iorth in-
Urn guidance. •*• ^
If. for example, all PRPs at thraile
disposed of watte oi similar toxicity and
hazardous nature.e.*- organic solvents.
then those PRPs who had contributed a
minimal amount (in relation to the total
•mount at the facility) could qualify for
de minima status because their waste
wes not more toxic or otherwise
hazardous than other hazardous
substances at the site. If. on the other
hand, a PRP disposed of a minimal
amount of a waste which is more highly
toxic or which exhibits other more
serious hazardous effects than other
hazardous substances at the site, then
that PRP. despite the minimal amount of
his contribution, normally would not
qualify for treatment as a de minimis
party.
Another wey to analyzing the facts
poaed by the second example is to
consider the cost of remediating site
contamination resulting from the
hazardous substance contributed by a
particular parry. If a PRP disposed of a
hazardous substance requiring
disproportionately high treatment and
disposal costs, or requiring e different or
mote costly remedial technique than
that which otherwise would be
technically adequate for the site, then
that PRP should not be treated as a de
ninimit contributor even if he disposed
of a relatively minimal amount of such
substance.
Even if a particular waste contributor
meets the volume end toxicity
requirements for de minimi* contributor
status, a possible settlement with a de
minima PRP must be determined by the
Agency to be "practicable aad in die
public interest" Section 122fj)f.l). TUa
requires the eonsideraban of {acton
beyond the basic eligibility criteria—
factors relating to whether the
settlement would effectuate the intent of
section 122(g) "d other purposes of the
Act For example, in the unlikely event
that every PRP at a site meets the basic
de minima eligibility criteria, a de
minima settlement would not serve one
of the primary goals of section 122Jth
elimination of certain minor parties
early la the process to focus the
remaining case on the major parties. In
such aa instance, the emphasis should
be on reaching e settlement as soon as
possible with all parties using
traditional settlement approaches.
Similarly, in a situation where several
mejor perties at a site are bankrupt or
otherwise non-viable, it may not be to
the public Interest to "cash out" smaller
contributors before reaching a
settlement with the remaining perries.
The Agency currently has several de
at/mow* pilot protects underway. Alter
these aad other section n?(g!
settlements have been concluded, we
will consider providing farther guidance
on the definition of the de minima
waste contributor baaed upon our
experience with these early settlements
and comments received on this interim
guidance.
V. Guideiiaa* for Settlaaeat With De
Minimi* Waste Contributor*
A. Timing of Settlement and Necessary
Information
The general goal of settlements with
de minimis parties is to allow PRPs who
made minimal contribution* to a site to
resolve their liability quickly and
without the need for extensive
negotiations with the Government
Section 123g)(3) indicates that the
President shall reach a settlement or
grant • covenant not to sue as soon as
possible after the President has
available the information necessary to
reach such a settlement or grant such a
covenant.
The first type of information that the
Agency must have is adequate
Information about the identity, waste
contributions and viability of PRPs for
the site concerned. Such information is
essential because the Agency must be
able to determine, under section
122lg)(l)(A) of SARA, that each settling
party's contribution by volume and
toxicity is minimal in comparison to
other hazardous substances at the
facility In order to enter into a de
minima settlement Such information is
also important because the Agency must
be able to evaluate the financial
viability of. and strength of its cue
•gainst the non-settling parties at the
site to determine whether * de minima
settlement is -practicable and in the
public interest- under section 122(g)(l)
of SARA.
Therefore, although the Regions may
engage in preliminary negotiations with
likely candidates for de minima
settlements prior to completion of full
PRP investigatory work, as a general
rule, de minimtt settlements should not
be concluded prior to completion of a
PRP search {including title search and
financial assessments) or prior to such
time as the Agency is confident that
adequate information about the extent
of each settling party's waste
contribution to the site her been
discovered. The Regions should
commence PRP Investigatory work
concurrent with the expanded site
investigation or. at the latest the
tsatteoal Priorities list scoring quality
assurance* process, and should make
•gfratih* use of information requests
pursuant to section IKJsJ of CERCLA,
as amended, and section 3007 of RCRA
as appropriate. The Regions should else
•ee subpoena*, aa nsedsd and
appropriate, pursuant to section 123(e)
of SARA.«ad ahovld coastd* all
information dii
id during rite aad
Early ijlsmaslnns with potential
candidates for de minima eettiemeats
will be most beneficial st sites with
numerous PRPs. where such discussion*
may be used to encourage minimal
waste contributors to organize and
present multi-party settlement offers to
the Government. In appropriate cases.
the Agency may consider concluding de
minima settlements prior to completion
of full PRP investigatory work. In such
cases, the Agency may use more
conservetive criteria for distinguishing
between de minima and notice
minima parties. ie~ tower volume and
toxicity levels, so that parties who may
legitimately be treated as mm-de
minimi* are not included within the de
minima class. Such settlements must
also be drafted carefully to assure that
they provide added protection to the
Agency egainst the risk thst new
information may be discovered sbout a
settling party's waste contribution to the
site.
The second type of Information that
the Agency must hevs is information
about the costs of remediating site
contamination. De minimi* settlements
in which PRPs are granted an expansive
covenant not to sue. Le, one without
reservations of rights for cost overruns
and future response action, tee infra, pp.
16-18. generally should not be pursued
until the Agency is able to estimate.
with • reasonable degree of confidence.
the total response cost* associated with
cleaning up the subject site, including
oversight and operation and
maintenance costs.1 The Agency usually
will arrive at this level of confidence
only after a remedial investigation and
feasibility study ("Rl/FS") and a Record
of Decision ("ROD") have been (or ere
close to being) completed at the site. A
AjMiey runt >o CTIinrg «MO » er mimma
-------
FodoraJ Ratiner / Vol 51 No. 12S / Tuesday, hiot 30. lip / Notice*
alt minima eettlanofit with an
cxpanai*t eovaaani oof to tve of (bit
kind may bt eondodad prior to
completion of the Rl/FS and ROD.
however, if the Agency «i relaaYeJy
eonlWeat of in ability to etUmate future
mpORM OWU. aad tbe Mttkmcnt taiat
toto MoovBt the taontaod level o(
•rwmtinry through aa adequate
prctaium payment and/or othar
aafefuarda. SM eectioc V(BK2) b*W
Toe Ageacr will *lao aoaaJder
alternative methodi of atrucniriag pre-
Rl/FS cad HOD dr jwuaut tettieJMnu.
which afford oV eununit contributor*
the opportunity for eariy tettlamanu
(whoa coat laforoation i* leu cenaml
while protecting to* Government igtmit
tht edditioaal ntk* preatnied by tuch
aariy agreement*. Option* for »uch
aettlemanu arc dtacutted in Section
V[B)(2) below.
A Co/iiMr ana1 ffami o/S»ttttmtnu
J. IntroducttoB
The got I of negoriaooni with d*
minima partial it t-j achieve quick and
standardised agreementi through the
exptadihm of minimal eaforecm*nt
reeoureet and trentaction cotu. To
attain (hit foal. MM dv minima
aetttancat aoraully wiO be i "cethout."
L*~ It will act include a commitment to
perform work.4 but raiber twill require a
paywktnt to be made to the Hazardous
Subttance Suptrfuad.' la exchange for
tail peymeat. the tattling panic* will
receive atatvtory contribution protection
•adw aaction tSUMO of SARA and
may raoaive a covanani not to MM ai
daacribMl in aaetioo VfB)(2) baiow.
t RttaMti fren Liability and Xeoptnan
At minim* aettlon Bay be frutad a
ooDvaeaat MM 10 ant lor enrii daunt
oMetraiflf tfaa attt wmieh aawk
totunettwe ntef Htdar aaction U» of
CEROAnd
TOODafROlXor
W? Of
CEROA,«rbM IPA datcrateae that
a«ch aMnvaoani it eonaittnt with the
public iniarnt. at awvidad a aaction
123(iK2> of SARA.' TW acoftt ef th»
HI mi* • mi mnfie owl (••* i* kt
I k» • tkwe-pvflr irwwt wit «n4 lor
. r^lkir jM^»K» •« f*u IMM wN kr
t ky uti»« ••••«*»»
eonvenant not to tue will vary.
depandiag upon the timing of tha
Battlement, the amount ajJaJomatioG
available to the Agency, tad tht amoul
of aay premium paymcBi to be made by
the dt mitumii partiet purtuant to the
aottiaaoat. Natural raeooret daaagt
datmt may aot be raltaaed, however.
aad thould be expmaly natrved aalaat
(he Federal nature! raaourat Puttee hat
agreed in writing to auch a ooavaaaat
aot to eat purtuant to tha tanoa of
aaction Z22(/){2) of SAAA.
In order to protect tba Agency agataat
the poetlbiUry that a df minima parry'*
full want contnbution to a nta biu act
been diteovtrcd. dt minima tenlementt
ihould. in moit catet. aito (nciudt t
rtaervtfion ef nghu which would allow
tht Government to teek further nlief
from any tettiini ptrry if in/ormtoon
not known to tht Government at tht
time of tenlement it discovered which
indiettei thit the volume or toxidty
en tent for the titt'i dt mimmu parnet
ire no longer tatitnod with reepeci to
that parry.1 Thtt rciervetioo need not be
included iftuffioent information about
the watte contribution! of til eita FRPi
it known at (he time of aetttanent. i*. tf
virtually ail of tha watte it accounted
for. or if utt ncordt and retulu of FRP
inveettptfoai art tuflJo tatty comphitt
for the Agency to conclude that the ntk
sf diteovenng new information about
w«tte cootribuBpe* to tat «tt it
negligible.
In addition to the natural ntourct
damage rctervation and tht retervation
for new information indicating that the
volume and toxicity criteria for the
particular eettieinem an ao lonttr
tatitfted, two further naervatioat of
right* or "nopenart" may be required
dtpaading upon the facta of tha cate
aad the omittg of the tenlamant. TWae
raopaaan protect the Agency agaiatt (l)
1W ritk of ooat ovemm* during the
completion of the remedial action aad
(H the-riak that further ratpoaaa action
will be Booatury to addition to the
work apedfied in the ROD.
If aa Rl/FS and ROD htvt been (or
an doae to being) completed at the atte,
aad the Agency hat auffidtm
information upon which to evaluate tha
likelihood of coat overrun* or future
ratpORM action and tht potential eottt
aaaodatod with thaet eontingeat eventa,
than tha Agency may accept a premium
•bti
•M* Miilmt e> miinmm t*nr »«
MtlMIHVM kB1 •"»•»' "W" " '
MfMHI
from the aetUiaf alt
pantea i» bav ol OM or both of tb«M
(w» laepanan. rtanaartlni ee the faeu.
Howevtr. if a dt summit tetUemant «
aoociMdad prior to oavsieoM (OF
tvbeuatUl ooatplattoa) of taa Rl/FS aad
ROD. at a MM wbaa (he Ajency bat
bMuffritnt laronaattoa •pan which to
v*«huta taaat rlakf tad o>veJap a
prcBuwr-ptyment tomaartturttt with
ttOtt. tlMtt IVOpCDW WP OMt QV^^^aAt
aad hitare roapoaaa action faaaraily
wiO be required, la appropriate cam,
the Agency may moke esotptiow to thit
gaaaraJ rale aad aeoapt a vary high
preanm payvwat. which provide! a
wide margin of aafety to the
Government, at an earlier ttage in tht
PTOCCM m Ueu of taeta two reopcnm.
At noted above, the Agency will alio
oontider vanoot formt of pr»-RJ /FS t»d
ROD o% Kama aattlamenu which
provide at auntaut contributor* the
oppomairy for aariy tetUament* while
proiecttag tbe Covemaent agtuut the
tddjbonal htkt pretanted by tuch aariy
agreementt. For cumpka. EPA mty
oootid«r partial aeitiemaou in which ibt
oV miaiaut partial naki a payment ui
aatttfacooc of tbatr liability for patt
aoatt aad protoctod tl/FS oaat*.
SetUemcatt of thit kted wonU sot
addreti the attthag parttet' liability for
poet-Rl/FS coat*. IPA may alto
eoatidar tenlemenu of greater acopt in
which an ep-front payment it made fcr
known patt eoett aad profrcted Rl/FS
aad rewedJtl cotu. In tettlemenu of.
thit kind. D»A woald reaem the right to
reopen tbe agreement if actual coett
exceed CPA't eattmate by an agreed-
•poo dollar amount or percentatt
AJtamatjvely. ttt Afcacy Aay panne
aatdamoatt ta which aa •p-frent
paXMat it made for patt ooatt onr/ oad
m which tba attthag d* mama paroaa
a
minima parOet, Fbit. tf aa extremely
high or wonttate tinman of remedial
action cotu it Med for (he otttlameau
than a coat overran premium or nopeaer
may aot bt rao^nd from the aattliag dr
oomrnitment to porfotn the remedial
action talMtad ia tba ROD ngtrdiett of
ttt coat than the titk of cott ovarntM
wttl be boraa by thoae Mior atrna*.
and a prMtiwa payment or nopener for
coat overrun* will not be reowired by the
Government from the tettllng ett
miaimu fKH. Finally. ^ «ht »>ajor PRJ>»
-------
24338
Federal Regiat«t / Vol. 82. No. 125 / Tuesday. June 30, 1987 / Notices
have expressly assumed the de minima
parties' liability for cost overruns and
future remediation at part of a
comprehensive settlement with the
Government than thtM risk* will ba
boma by tha major parties, and a
pramiuc payment or rcopanvr for eott
overruns M* Aatney't piuitclloa af fttuf* mporu> eo*t*
SMmlly (twutd b* bind m • tin »aciflc
i •* UN BM*I Sfabebia caatt of fta
*t ItaMIHjr of
la concluded prior to completion of the
Rl/FS and ROD. and information about
projected coats is limited, then the coat
overrun and future response action
premiums should be calculated to reflect
this increased level of uncertainty.1* As
discussed earlier, if the major PRPs are
assuming the responsibility for
conducting me cleanup **-en the
premium amounts may be made
available to those PRPs rather than to
tha Agency. In this situation, the ,
premium amounts may be negotiated
between the major PRPs and the de
minima settlors.
Furthermore, because dt minimit
PRPs an jointly sod severally liable for
response coats at the site, the amount to
be paid by a de minimis settlor is
affected by the amount available from
other PRPs. Thus, if a significant portion
of the major parties at the site an
bankrupt or otherwise not financially
viable, then the dt minimis offer may
need to refledt a greater proportion of
response costs, rather then simply a
volumetric share and a premium. It is
also possible that mixed funding may be
appropriate in such a situation.11
4. Enforcement of Payment
If a settling party fails to make any
payment required by a de minimi*
settlement or otherwise fails to comply
with any term or condition of the
settlement that party is subject to
enforcement action, including imposition
of civil penalties pursuant to Section 109
of CERCLA, as amended. See section
122(1) of SARA. In addition, the
Agendcy may include a porovision in
the settlement document which permits
the agreement to be vacated in the event
of noncompliaaca.
5. Type of Agreement
Section 122(ej)(4) of SARA requires
that de minima settlements be entered
as either judicial consent decrees or
administrative orders on consent The
circumstances and procedures under
which these two alternatives should be
used are briefly describe below.
a. Judicial Content Decree. Under
section U2(d){l){A) of SARA.
settlements with non-rfe minima PRPs
which provide for remedial action must
be embodied in consent decrees. Thus, if
the d* minima settlement is part of a
larger, more comprehensive agreement
with the non-de minima parties under
which remedial action will be
performed, it may be advisable and
efficient to use a consent decree for the
entire settlement Similarly, if the
Government has already filed a
CERCLA Section 106 or 107 action with
respect to the site, a consent decree wit)
the de minima parties may b* .«.eful
because the court will be familiar wi'1-
the case a&J should be able
tha settlement expeditiously.
At the present time, all de minimi*
consent decrees must be referred to
Headquarters by the Regions and must
receive the concurrence of the Assistan:
Administrator for Enforcement and
Compliance Monitoring ("AA-OECM")
and the Assistant Administrator for
Solid Waste and Emergency Response
["AA-OSWER") or his or her designee
prior to referral to the Department of
justice for filing. Further, all de minimis
consent decrees will be subject to a
thirty-day public comment period after
lodging.1* A model section 122(g)
consent decree will be issued shortly.
b. Adminstrative Order on Consent, fi
de minimis settlement msy also be
embodied in an administrative order on
consent ("consent order"). See section
122(d)(l)(A) of SARA. Because of the
potential effect of administrative de
minimis settlements upon future
litigation and negotiations with the
major waste contributors at the site, all
such settlements currently must receive
the concurrence of the AA-OECM and
the AA-OSWER prior to signature by
the Regional Administrator.
Additionally, if the total past and
projected response costs at the site.
excluding interest exceed $500.000 (as
will generally be the case at aites
involving de minimis settlements).
section 122(fJ(4) of SARA requires that
the de minimi* consent order receive th
prior written approval of the Attorney
General or his designee ("AC"). That
subsection of SARA gives the AC thirt)
•days from referral by EPA to approve o
disapprove the settlement unless the
AC has reached agreement with the
Agency on an extension of time.
Section 122(1) of SARA requires notic
of all administrative de minimi*
settlements to be published in the
Federal Register for a thirty-day public
comment period. The Agency must
consider all comments received and
"may withdraw or withhold consent to
the proposed settlement if such
comments disclose facts or
considerations which Indicate the
proposed settlement is inappropriate.
• The anrnra* payoieal f
Ik* BOH Mltlkn PMi HI dtt
•• Fwifcaf tatdaaea M cafe
If pfMUMK
. ta «MM eeaat, H m*r b* aetroatMM for
UM prMU4in M fa* diMH»"d hi • »H «MClftc WM
(Mid M dl»caiiad Maw a, V ». 14.
•arawntf win b* piaiidad by Meant*
11 Caidinc* on NiMd fuadtat «r» U**»d SUM* hM ntfenittt I* «ny.
Fuhlic •«•*••* iw*i**d Md MMU «rt*r Ih* own
-------
Federal Reyjler / Vol. 52. No. 125 / Tueiday. June 30. 1987 / Notice*
24339
improper, or inadequate." " Section
122(i)(3) of SARA. Modifying or
withdrawing content to «n
administrative settlement ii subject to
the same OECM and OSWER
concurrence! •• are initial agree menu.
More detailed guidance on the
procedural aspects of dt minimit
consent orders, including Regional
referral of orders for Headquarters
concurrence and AC approval
solicitation of public comment.
enforcement of orders, and other related
matters, will be provided by separate
memorandum. A model section 122(g)
consent order will be iasued shortly.
VI. Purpose) and Use of This
Memorandum
This memorandum and any internal
procedures adopted for its
implementation are intended solely as
guidance for employees of the US.
Environmental Protection Agency. They
do not constitute rulemaking by the
Agency and may not be relied upon to
create a right or a benefit, substantive or
procedural, enforceable at law or in
equity, by any person. The Agency may
take action at variance with this
memorandum or its internal
implementing procedures.
Appendix—Text of Section 12Kj> of San
(1) fix/jed/tec1 Final SeK/ement—Whenever
practicable and in the public interest, ss
determined by the President the President
shall a*-promptly at possible reach t final
settlement with s potennally responsible
party in an administrative or civil action
under section 108 or 107 if such settlement
involves only a minor por.ion of the response
costs at the facility concerned and. ia the
judgment of the President, the conditions in
either of the following subparaxniph (A) or
(B) are met:
(A) Both of the following an minimal in
companion to other hazardous substances at
the facility;
(i) The amount of the hazardous substances
contributed by that party to the facility.
(11) The toxic or other hazardous effects of
the substance* contributed by that party to
the facility.
(B) The potentially responsible party—
(I) is the owner of the r»«J property on or in
which the factllty to located:
(ii) did not conduct or permit the
generation, transportation, storage, treatment.
or disposal of any hazardous wbetanc* at the
facility: and
(III) did not contribute to the release or
threat of release of s hazardous substance at
the facility through any action or omission.
"The pay*
M • lit muunne
This subparagreph (B) dees not apply If the
potentially responsible party purchased the
real property with actual or constructive
knowledge thai the property w«« used for the
generation, transportation, storage, treatment.
or disposal of any hazardous substance.
(2) Covtncnt Not To Sue.—The President
stay provide s covenant not to sue with
respect to the facility concerned to any party
who has entered into s settlement under this
subsection unices such s covenant would be
inconsistent with the public interest as
determined under subsection If).
(3) Expodit+ct AgrHmfnL—The President
shall rescb any such settlement or grant eny
such covenant not to sue as soon ss possible
after the President has available the
Information necessary to reach such s
settlement or grant such a covenant.
(4) Content Otertf or Admmtiimtivt
Order.—A settlement under this subsecnon
shell be entered es s consent decree or
embodied in en administrative order setting
forth the terms of the settlement In the case
of any facility where the totsl response costs
exceed SSOOOOO (excluding interest), if the
settlement is embodied ss sn administrative
order, the order msy be Issued only with the
prior written spprovsl of the Attorney
General If the Attorney General or his
designee has not approved or disapproved
the order within 30 days of this referral the
order shall be deemed to be approved unless
the Attorney General snd the Administrator
hive speed to extend the time. The district
court for the district ia which the reiease or
threatened release occun may enforce any
such administrative order.
|S) Efftct of Ac/eemestt—A party who has
resolved Its liability to the United Slates
under this subsection shall not be liable for
claims for contribution regarding matters
addressed in the settlement. Such settlement
does not discharge any of the other
potentially responsible parties unless its
terms so provide, but it reduces the potential
liability of the others by the amount of the
settlement.
(6) Stultmtnu with Oth»r Potentially
Retponsiofe Asrt/es.—Nothing in this
subsecuoo shall be construed to affect the
authority of the President to reach
settlements with other potentially responsible
parties under this Act
(FR Doc r-14802 Filed 8-»-e7: fc«5 am)
erden tae«M no) require S*>IMIM 10 be maoe until
eher Die public oanmem p*nad tot dneed sad
•Mil sfier HM Atvney he* h*d tvfflcMmi MM to
determine whether »ny COMWIIU received reqwre
•odinesiwn ef or iMiMniiMl frer» th» O
FEDERAL COMMUNICATION
COMMISSION
V*»e»c hrtorrorton Co»ectten
Requirement* Submitted to the Office
of Mwtegement and Budget for Review
The Federal Communications
Commission has submitted the following
Information collection requirements to
OMB for review and clearance under
the Paperwork Reduction Act of 1980. 44
Transcription Serv-.ee. 2100 M Street.
NW. Suite 140, Washington. DC 20037.
or telephone (20Z) 857-3815. Persons
wishing to comment on an information
collection should contact |. Timothy
Sprehe. Office of Management and
Budget. Room 3235 NEOR Washington,
DC 20501 telephone (202) 39S-U14.
Copies of these comments should also
be sent to the Commission. For further
information contact Doris Benz. Federal
Communications Commission, telephone
(202) 632-7513.
OMB NOJ 3060-0051
Title: Ship/Aircraft License Expiration
Notice and/or Renewal Application
Form No.: FCC 405-8
Action: Revision
Estimated Annual Burden: 39.163
Responses: 1359 Hours.
Needs and Uses: A computer-generated
expiration notice which is sent to ship
(voluntarily equipped and Title HI Part
HI vessels) and aircraft radio service
station licenses.The license may be
renewed by returning the application
when there is no change, or only
minor changes, to the existing license.
The data is used to update the
existing data base and issue renewed
licenses.
OMB No.: 3060-0096
Title: Application for Ship R*dio Station
License and Temporary Operating
Authority
Form No- FCC 506/506-A
Action: Revision
Estimated Annual Burden: 106.192
Responses: 21.238 Hours.
Needs and Uses: Form FCC 506 is used
to apply for a new. modified, or
renewal of a ship radio station
license. Form FCC 506-A is retained
by the applicant as a temporary
operating authority and is valid for 90
days. The data is used to determine
eligibility, update the existing data
bate, and issue licenses.
Federal ConmunicatioM Commission.
Wtmesal.'Meariee,
Secretory.
[PR Doc. S7-147K) Filed s-2»-e7:1:45 «m|
seism fmtt rrn-r-
nOCRAt ELECTION COMMISSION
CtoaytnetN
Advieory r»enet;
Copies of these submissions may be
purchased from the Commission's
duplicating contractor, international
Renewal of Charter
auaaaunr: The National Clearinghouse
on Ejection Administration announces
the r*n»wal of the charter for the
Qeanngnuuse Advisory Panel.
The purpose of the Panel is to provide
advice and consuls tion to the
ClearinfthrwMc with respect to its
-------
28038
Federal Register / Vol. 52. No. 143 / Monday. July 27. 1987 / Notice*
OSWER I 9834.8
Applicants »ute thai granting their
request will permit the Applicant* to tell
the • ubject gi» on the spot market under
their small producer certificate.
Applicants state that the August 9.
1965. contract expired on November 7.
1986. and that under the expired
contract ANR has no take-or-pay
obligation. Applicants state that the gas
qualifies under NCPA section 106
KtiuUttoni. Svi.nnn 2.~ »*..im iHut iht CofMMMioa
will c
-------
Federal Register / Vol. 52. No. 143 / Monday. July 27. 1967 / Notices
28039
EPA's reason* for adopting this
second reopener are several. First.
although SARA do«s not explicitly
require this reopener. both tha statute
and the legislative history evince a
Congressional concern that'responsibla,,.
parties remain liable for failure of the
remedial action to protect public health
or the environment. For example, the
mixed funding provision in section
122(b) cleariy anticipates that the
responsible parties who have settled
retain liability for additional work
necessary to address remedy failure.
The five-year review prevision in
section IZl(c) also reflects Congress'
concern for remedy failure by
mandating periodic reviews to ensure
that remedial actions continue to protect
public health and the environment. If a
remedy does not meet this standard.
EPA may take or require such additional
remedial action as is necessary.
The second major issue addressed in
the guidance is how EPA will exercise
its discretion to seek additional
remedial relief in the period following
settlement but prior to the effective date
of the covenant not to sue for future
liability. Responsible parties have
expressed concern that prior to the date
on which the covenant becomes
effective. EPA can alter its Record of
Decision and impose additional costs
upon settlors without the slightest
change in circumstances. To assure
settling parties that EPA does not intend
such a result. EPA will include language
in covenants, limiting EPA's ability to
reopen a settled remedial matter to
those •s'ituaHons where additional
information is received, in whole or in
'pun. after entering of the consent decree
indicating that the remedy no longer
protects public health or the
environment. As explained above. EPA
thinks that such a provision preserves
Congressional intent as to the proper
allocation of the risk or remedy failure
while also assuring those same panics
that some degree of certainty attaches to
a settled matter.
The third issue involves the Agency's
responsibility to certify completion of
the remedial action. Section 12210(3)
provides that a covenant not to sue for
future liability cannot take effect until
EPA has certified that remedial action
has been completed. Section 122 does
not include specific guidance on when a
cleanup has been completed. CERCLA
cleanups often involve the construction
of some type of facility designed to
correct contamination at the site and the
operation and maintenance of thai
facility for the indefinite future. In this
circumstance, certification of completion
should not have to wait until all
operation and maintenance activities
are completed. Specific distinctions
between remedial action and operation
and maintenance are drawn in section
104(c)(e) of S:" • Although 1h»e-«j., .
distinctions are ni,: smctly applicabteJer-
a legal matter to '•eieasee from lU&iHry,'
the Agency believes that it is
unneccessarily confusing and inefficient
to have two separate sets of definitions
applied to remedial action, and will
therefore as a matter of policy apply the
distinctions in section 104 to releases
from liability.
Section 104(c)(6) of CERCLA
establishes definitions for purposes of
the States' cost share of CERCLA
response actions. It defines completed
remedial action to include the
completion of treatment or other
measures necessary to restore surface
and ground water quality to a level that
assures protection of human health and
the environment The operation of such
measures for a period of up to ten years
after the construction or installation of
the remedy shall be considered remedial
action. Activities required to maintain
the effectiveness of such measures
following this ten-year period or the
completion of remedial action.
whichever is sooner, shall be considered
operation or maintenance.
Questions have arisen in determining
whether pumping and treating of
gound water constitutes part of the
remedial action, or part of operation and
maintenance, for purposes of funding.
Section 104(c|(6| indicates that the
completion of treatment or other
measures necessary to restore surface
and gound water quality falls within the
definition of remedial action, rather than
operation and maintenance, and can
therefore be paid for out of the Fund for
a period of up to ten yean. However,
ground or surface water cleanup
measures initiated for reasons other
than restoration would be treated as
operation and maintenance, as would
source control actions.
We recognize that this guidance
addresses important and complex issues
and for that reason an requesting public
comment We will evaluate all
comments received for the purpose of
determining whether any modifications
to the guidance are warranted.
The interim guidance follows.
Oair July tr. 1987.
ttward t laieh.
Acting. Attntant Adminittrotor for
Enforctmeni and Compliance Monitontif.
Oauc Inly 17.19*7.
Attutont Admiatttmor for Solid Wattt and
Emfiftncy Rttpont*.
July 10, UT.
Subject Covenants Not To Sue Undeat -ao
SARA.
From: Thomas L Adams, Jr.. Assistant
Administrator for Enforcement and
Compliance Monitoring. )• Winston
Porter. Assistant Administrator for Solid
Waste and Emergency Response. F.
Henery Habicht II. Assistant Attorney
General U.S. Department of Justice.
To: Regional Adminutrttors. Rtfioni t-X
L Introduction
In the Interim CERCLA Settlement
Policy. SO FR 5034 (1986). EPA provided
guidance on when releases from liability
were appropriate as consideration for
an agreement involving a private psrty
cleanup or reimbursement of EPA's
costs. That policy expressed a strong
preference for issuing releases in the
form of covenants not to sue. The
Superfund Amendments and
Reauthorize tion Act (SARA) confirms
the authority of EPA to release
responsible parties from certain
liabilities in settlement of an EPA claim
under CERCLA. In section 122(0 of
SARA. Congress adopted EPA s policy
of drafting releases in the form of
covenants not to sue and also
established specific- requirements
governing the Agency's ability
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28040
Fedetml Register / Vol. 52. No. 143 / Monday. |uly 27. 1987 / Noticei
(C) The settlor is in Full compliance
with • content decree under f 106
addressing the release or threatened
releatc:
(D) EPA has approved the response
action.
Section 122(f}flJ.
Prior to entering a covenant not to sue
under section 122(0(1). EPA must assess
the appropriateness of the covenant
under seven factors set forth in section
122(0(4). These factor*, which relate to
the effectiveness, reliability, and
enforceability of the remedy, and the
nature of the risk remaining at the site.
include:
(A) The effectiveness and reliability of
the remedy, in light of the other
alternative remedies considered for the
facility concerned.
(B) The nature of the risks remaining
at the facility.
(C] The extent to which performance
standards are included in the order or
decree.
(D) The extent to which the response
action provides a complete remedy for
the facility, including a reduction in the
hazardous nature of the substances at
the facility.
(E) The extent to which the
technology used in the response action
is demonstrated to be effective.
(F) Whether the Fund or other sources
of funding would be available for any
additional remedial actions that might
eventually be necessary at the facility.
(C) Whether the remedial action will
be carried out. in whole or in significant
part by the responsible parties
themselves.
Section 122(f)!4)
In addition to authorizing EPA. in its
discretion, to covenant not to sue for
liabilty. including future liability, section
112(0 mandates that EPA grant a
covenant not to sue for future liability in
two specific circumstances. Section
122(0(2) provides that where the four
conditions in section 122(0(1) have been
met. EPA must issue a covenant not to
sue for "future liability for future
releases" If: (1) EPA selects a remedial
action involving offaite disposal of a
hazardous substance after rejecting an
onsite response which fully complies
with the National Contingency Plan
(NCP): or (2) the selected remedial
action requires the destruction.
elimination, or permanent
immobilization of hazardous substances.
Such a covenant may only address the
portion of the remedial action which
involves these two situations.
Assuming that a covenant not to sue
for future liability is otherwise
authorized under section 122(0. section
122(0(3) prescribes that a covenant not
to sue for future liability shall not take
effect until EPA has certified that the
remedial action has been completed in
accordance with the terms of CERCLA.
Moreover, whether the covenant is for
future or present liability, section
122(0(3) conditions such covenants upon
satisfactory performance of the terms of
the settlement agreement
Finally, section 122(0(6) addresses
exceptions to covenants not to sue for
future liability provided under Section
122(0(1)- For example. EPA must except
from any covenant not to sue for future
liability any future liability related to
the release or threatened release which
is the subject of the covenant where
such liability arises from conditions
unknown at the time the remedial action
is certified complete. Section
122(0(6)(A). This "reopener-for
unknown conditions is not required for
special covenants granted under section
122(0(2) or for de minimis settlements
under section 122(g). In addition, section
122(0(B)(B) provides that a waiver for
the unknown conditions reopener in
section 122(OW(A) may be granted in
"extraordinary circumstance*." In
determining whether extraordinary
circumstances exist EPA must consider
"such factors as those referred to in
(section 122(01(4)] and volume, toxicity.
mobility, strength of evidence, ability to
pay. litigative risks, public interest
considerations, precedential value, and
inequities and aggravating factors."
Section 122(0(6)(B). Nonetheless, even if
extraordinary circumstances exist the
unknown conditions exception may not
be waived if the terms of the agreement
do not provide reasonable assurances
that public health and the environment
will be protected from any future
releases. Section 122(0(«)(C] authorizes
EPA to except from covenants not to sue
future enforcement actions necessary to
protect public health, welfare, and the
environment.
m. Explanation of Key Statutory
Provisions
In interpreting Section 122(0 end
developing a policy for its
implementation. EPA has looked taJbn
expressions of Congressional intent
contained in other parts of SARA and
the relevant legislative history. These
courses indicate that section 122(0
serves several goals, including:
(1) Encouraging private party cleanup*
by providing EPA with the authority to
grant covenants not to cur
(2) Encouraging more permanent
cleanups by codifying the principle that
the more permanent the cleanup the
more complete the release:
(3) Protecting the public by ensuring
that responsible parties remain liable for
future releases requiring future remedial
action.
A. Pment Liability and Future Liability
In section 122(0(1). Congress
authorizes EPA to issue covenants not
to sue for both present liability and
future liability. In the context of
settlements involving remedial action,
EPA interprets present liability as a
responsible party's obligation to pay
those response costs already incurred
by the United States related to a site
and to complete those remedial
activities set forth in the Record of
Decision (ROD) for that site, including
meeting any performance standards or
other measures estabished through the
remedial design (RD) proces*. Future
liability refers to a responsible party's
obligetion to perform sny additional
response activities at the site which are
necessary to protect public health and
the environment.
In deciding whether to provide a
covenant not to sue for present liability.
EPA must consider the criteria in
sections 122(0(1) and 122(0(4). These
factors essentially codify the approach
taken in EPA's Interim CERCLA
Settlement Policy. There. EPA stated as
a general principle that "the more
effective and reliable the remedy, the
more likely it is that the Agencv can
negotiate a more expansive release." In
judging the reliability snd effectiveness
of the remedy, the Intenm Settlement
Policy placed special emphasis on
whether the remedy requires that
health-based performsnce standiirds be
met. AJ noted above, section 122(0(4)
explicitly makes performance standards
a factor to be considered and EPA
continues to regard this factor as
critical Where the criteria in section-
122(0(1) «r« fulfilled and where
consideration of the factors In section
122(0(4) suggests the remedy is reliable.
effective, and enforceable (such as. for
example, where the remedy indudn»
numerical performance standards), a
covenant not to sue for present liability
may be provided which takes effect
upon approval of the consent decree by
the court On the other hand, where the
criteria in paragraph (0(1) ere met but
the factors in section 122(0(4) indicate
that some questions remain about the
reliability, effectiveness, and
enforceability of the remedy, any
convenant not to sue for present
liability, if appropriate at all. would
have to be conditioned on s
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Federal Register / Vol. 52. No. 143 / Monday. July 27. 1987 / Notices
28041
demonstration of the effectiveness and
reliability of that remedy.
Covenants not to sue for future
liability are also made contingent on the
criteria set forth in section 122)0(1) and
the factors enumerated in section
122(01*). When these conditions are
met. EPA may. in its discretion, provide
a convenant not to sue for future
liability but such a covenant, according
to section 122(0(3). may not take effect
until EPA certifies that the remedial
action has been completed. Prior to
certification, therefore, the settling party
remains fully responsible for any future
liability for future remedial action
'necessary at the site. Following
certification, unless a special covenant
under section 122(0(2) is required or
extraordinary circumstances are
present, the covenant not to sue for
future liability is subject to a reopener
covering (1) unknown conditions as
mandated by section 122(0(6)(A). (2)
any other conditions EPA deems
advisable based on the section 122(0(4)
factors, and (3) future enforcement
activity necessary and appropriate to
assure protection of public health.
welfare, and the environment as
provided in section 122(0(6)(C).
B. Certification of Completion of the
Remedial Action
Section 122(0(3] specifies that a
covenant not to sue for future liability
shall not take effect until EPA certifies
the remedial action is complete. In the
context of paragraph 122(0(3). EPA
interprets completion of the remedial
action as that date at which remedial
construction has been completed. Where
a remedy requires operational activities.
remedial construction would be judged
complete when it can be demonstrated
that the operation of the remedy is
successfully attaining the requirements
set forth in the ROD and RD.
The exact point when EPA can certify
completion of a particular remedial
action depends on the specific
requirements of that remedial action.
Each consent decree should include •
detailed list of those activities which
must be completed before certification
cnn occur.
Certification of completion under
section 122(0(3) dot* not in any way
affect a settling parry's remaining
obligations under the consent decree.
All remedial activities, including
maintenance and monitoring, must be
continued as required by the terms of
the consent decree.
C. Reopeners
Under the CERCLA Interim Settlement
Policy. EPA required that there be
included in every consent decree
reopeners covering situations where
EPA received additional information
after the time of the agreement regarding
site conditions or scientific
determinations which indicates that the
site may pose an imm • »:it and * _.
substantial endangerment to '....- public*',.*"
health or welfare or to trie environment. -
Under section 122(0- * slightly different
approach to reopeners must be followed.
Section 122(0 provides that for future
liability, no covenant not to sue shall be
effective pnor to certification of
completion of the remedies 1 action.
Technically, therefore, since there is no
release of future liability pnor to
certification, there is no need for
reopeners in that time period. Reopeners
for future liability only becomes
necessary after certification, when the
covenant not to sue takes effect.
As to reopeners regarding future
liability. Congress expressly required a
reopener for unknown conditions. In
contrast to the Interim Settlement
Policy, however. Congress expressly
eliminated any endangerment threshold
for that reopener. Congress also
authorized EPA. in section 122(0(6)(C).
to include any other reopeners
"necessary' and appropriate to assure
protection of public health, welfare, and
the environment" EPA believes that it is
in the public interest and consistent
with Congressional intent to require a
•wond reopener covering situations
where additional information reveals
that the remedy is no longer protective
of public health or the environment'It is
not in the public interest to release
responsible parties from liability for
additional response actions made
necessary by new information, given, as
noted in the Interim Settlement Policy.
"the current state of scientific
uncertainty concerning the impacts of
hazardous substances, our ability to
detect them, and the effectiveness of
remedies at hazardous waste sites." SO
FRS038.
Congressional concern with situations
where the remedy fails to protect public
health or the environment can be seen in
SARA'S mixed funding and five-year
review provisions. The mixed funding
provision in section I22(b) states that if
mixed funding is adopted at a particular
•ite. "the Fund shall be subject to an
obligation for subsequent remedial
actions at the same facility but only to
the extent thai such subsequent actions
are necessary by reason of the failure of
the original remedial action. Such
obligation shall be in a proportion equal
to, but not exceeding, the proportion
contributed by the Fund for the original
remedial action." This provision
Anticipates that the responsible parties
who have setiled retain liability for
additional work necessary to address
remedy failure. Further support for this
proposition can be found in the
Conference Report statement that the
continuing proportional Fund obligation
..in mixed fuinu.,. ret •• * settlement
'incentive. RR. Rep Nr -rt -K? 99th
'Cong.. 2rf Se»i. ?-• / (:»*>). The Fund's
continuing obligation would only be an
incentive to settlement if in non-mixed
funding cases settling parties retained
liability where the remedy fails to
protect public health or the environment
The five-year review provision in
section 12t(c) also addresses Congress'
concern for situations where the remedy
fails to protect public health and the
environment by mandating periodic
reviews to assure that remedial actions
do just that If a remedy is found not to
protect public health or the environment.
the statute provides that EPA may take
or require such additional remedial
action as is necessary.
Congressional concern that remedial
action might fail to protect public health
and the environment was not limited
narrowly to a focus on the reliability of
the remedial technology at the site.
Rather, this concern apparently
extended to any situation in the future
at the site which is judged to present a
threat to public health and the
environment EPA will follow this
interpretation of remedy failure. For
example, should health effects studies
reveal that the health-based
performance levels relied upon in the
ROD are not protective of public health
or the environment and that public
health or the environment will be
threatened without further response
action, then the EPA could invoke the
remedy failure reopener. The reopener
for remedy failure, however, is not
meant to require changes purely based
on advances in technology. Under the
reopener. EPA would not compel settling
parties to implement newly-developed.
more permanent remedial technological
unless EPA can show that the present
remedy does not protect public health or
the environment. Neither is the remedy
failure reopener intended to give EPA
the option to make changes in a
remedial action absent additional
information received following the entry
of the consent decree. EPA does not
consider the phrase "information
received, in whole or in part, after entry
of the consent decree." as used in the
attached model covenant, to include a
new analysis of the same information
comprising the record of the initial
remedy selection decision.
In short, this reopener is similar to the
reopener for new scientific information
provided for in the Interim Settlement
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28042
Fedaral Rtysttr / Vol. S2. No. 143 / Monday. July 27. 1887 / Notice*
Policy, although tht imminent and
substantial tndtntemtnt threshold hat
not been included. To require a • bowing
of imminent and substantial
tndangermint would be inconsistent
with tht provision in section 122(0 of
SARA with regard to unknown
conditions at well at the provitiont
concerning future retponte work in
tection 122JO(6)(C) and section 121 (c).
Moreover, it it the Agency's view that
requiring different showings for the two
reopenen would lead to protracted
disputes about which reopener applied
to tituationt necetitating additional
retponte activity.
EPA believes that In order to give
tettlon tome tneaauret of certainly prior
to certification, the most reasonable
meant to implement the authority in
tection 122(0 is to specify in content
decrees those pre-cenificahon situations
in which EPA would seek further
remedial action. Those situations at a
minimum would include the
circumttancet described in the future
liability reopenert:
(1) Discovery of previously unknown
conditions: and
(2) Situations where additional
information reveals that the remedy it
no longer protective of public health and
the environment.
Thus, pnor to certification of completion
of the remedial action. EPA will reserve
its right to institute new proceedings to
compel, or recover costs for further
response action made necessary by
information received, in whole or in
p.aru'after entering of the consent degree
. related to either unknown conditions or
remedy failure. Following certification
of completion of the remedial action,
EPA will reserve its right to institute
proceedings only to address information
received after certification of completion
of the remedial action related to
unknown conditions or remedy failure.
Pre-certification reopeners for unknown
condition* and remedy failure apply to
all covenant! not to tut, even to special
convenantt under tection 122(0{zt
Particularly in tht ptfctrttfication
period, tht relationship of the remedy to
the covenant and the reopeners should
be carefully considered. EPA may insist
on broader reoptnen where the content
decree dots not provide for a remedy
that meets the preference in section
121(b)(l) fora permanent and significant
reduction of the volume, toxicity. or
mobility of the hazardous substances. In
those instances. EPA shall assess the
need for broader reopenert in the
covenant not to sue bated on the factors
identified in section 123(0(4).
Nevertheless, once EPA hat determined
what reopenert are appropriate for the
pre-certification period. EPA will agree
in the covenant to institute new
proceedings only where those reopener
provitiont are met
Although covtnantt not to tne mutt
include, at a minimum, the abovt-
detcribed reopeners during the prt-
certiftcation period, reopenert an not
mandated in all circumttances in
covenants not to sue applicable to the
period following completion of the
remedial action. Two statutory
provitiont addrett this period. FlrtL
tection 122(0(2) mandatet that EPA
issue a special covenant not to sue for
future liability in two narrow
circumttancet: (1) OfTtite disposal
following rejection of an ontite remedy
complying with the NCP-. and (2)
complete destruction of the hazardous
substance*. Such a special covenant
may not contain reopener* for the post-
completion period. Second, section
122(f)(6)(B) specifies that in
extraordinary cireumttancet EPA may
exclude a pott-completion reopener for
unknown conditions. This extraordinary
circumstance waiver is only available
where other terms in the agreeement
provide all reasonable assurances that
public health and the environment will
be protected. At a policy matter. EPA
would alto not include the reopener for
later-received information relating to
failure in a situation where the
conditions in tection 12JO(8)(B) are met
EPA, however, it-barred from granting
covenant! not to sue without reopeners
absent a finding that a special covenant
is appropriate or that extraordinary
circumstances exist
D. Extraordinary Circumstances
Section l22tfl(6)(B) provides that EPA
may forego including a reopener for
unknown conditions when
extraordinary circumstance* exist and
"other terms, condition, or requirements
of the agreement... are tuffldent to
provide all reasonable etturtncet that
public health and tht environment will
be protected from any future release* at
or from the facility."
Tht legislative history on this
provision indicates that it should be
narrowly applied. The House-Senate
Conference Report stain that "(t)his
provision should be implemented in an
manner consistent with the current
application of tht Administration
settlement policy as to unknown
conditions." Conference Report HJt
Rep. No. 99-962. *9th Cong. 2d Sets. 295
(1966). By this statement tht Conference
Committee endorttd EPA't extremely
limited use of tht extraordinary
circumstance* waiver for reopeners
contained in the CERCLA Interim
Settlement Policy.
In section 122(f)(6KB). Congrett lists
as relevant factors regarding
extraordinary circumstances: Those.
[factors] referred to in (section 122(01(4)
and volume, toxicity. mobility, strength
of evidence, ability to pay. Utigative
risks, public interest consideration*.
precedential value, and inequities and
aggravating factors." EPA has already
explained how many of tht*e factor*
will be interpreted in tha Interim
Settlement Policy.
A finding of extraordinary
circumstancet alone it not sufficient to
meet the requirements of section
122(0(6)(B). That provision alto
mandatet that the unknown condition*
reopener may only be waiver if other
term* of the agreement provide all
reatonable atturance* that public
health and the environment will be
protected. On* factor which may be
considered in determining whether all
reasonable assurances have been
provided it whether a settling party ha*
offered a premium payment to insure
against the risk that future remedial
action will be required at the site.
One of the instances where EPA has
used the extraordinary circumstance*
exception in the past is where a
responsible party has filed for
bankruptcy. Whether or not •
responsible party's bankruptcy filing
presents extraordinary circumttances
will depend on a number of case-
specific factors involving, among other
things, the grounds upon which the party
it Hable. and the type of bankruptcy
relief-liquid*tion or reorganization-thai
it being sought by the debtor. EPA will
not grant a debtor a convenant not to
sue which is broader than a discharge
under the bankruptcy laws but neither
will EPA make settlement impo**ible by
insisting on a convenant narrower than
tht discharge the debtor is entitled to by
operation of the bankruptcy laws.
Waivers of reopeners under section
122(f)(6)(B) will require prior approval
by the Assistant Administrators for
OECM and OSWER and the Assistant
Attorney General a* provided in the
Interim Settlement Policy. 50 FR at 5040.
£. Sptcial Convtnanu
Special convenants not to tue under
section 122(0(2) are authorixed for two
extremely limited circumstance*. Putt
under section 122(0(2)(A) a special
covenant is appropriate where EPA
•elect* a remedial action involving
offtite disposal after rejecting a
proposed ontite remedy which it
consistent with the NCP. This special
convenant it should be emphasized, it
only available when EPA hat
determined that an ontite remedy fully
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Federal Register / Vol 5Z No. 143 / Monday. |uly 27. 1967 / Noticei
28043
complin with the requirements of the
NCP. but that onsitt remedy i« rejected
in favor of offaitc disposal It is not
luflicient for EPA to have merely
considered onsite proposals in choosing
•>•* '••nedv. Further, the Conference
RCTTv i -,,L ': dear that this proviskx
M-TI. c-'.- /i_-d in the context of sector.
iti requirements regarding offsite
dispoMl and therefore EPA will only
grant this special covenant hi decree*
involving remedies selected under
section 121. Conference Report H.R.
Rep. 99-482.99th Cong, 2d Set*. 254
H9M).
Second, under section l22(f)(2)(B),
-EPA will issue a special covenant where
the remedy involves each of the
following elements:
(1) Treatment of hazardous
substances so as to
(2) Destroy, eliminate, or permanently
immobilize the hazardous constituents
of such substances, and
(3) EPA determines that
(a) The substance* no longer present
any current or currently forseeable
future significant nsk to public health,
welfare, or the environment.
(b) No byproduct of the treatment or
destruction process presents any
significant hazard to public health.
welfare, or the environment, and
(c) All byproducts are themselves
treated, destroyed, or contained in a
manner which assures that such
byproducts do not present any current
or currently foreseeable future
significant risk to public health, welfare,
or the environment
The term "permanent immobilization"
applies only to a site where treatment
technologies change the fundamental
nature and character of the hazardous
substances so that no person faces a
significant risk of being exposed to the
hazardous substance. Conference
Report. RR. Rep. No. 98-962,99th Cong,
2d Sess. 254-U (1966). Use of
"permanent" storage containers or other
containment technology does net qttUfy
as permanent immobilization under this
provision.
Finally, under either of the two
circumstances in section 122(f)(2). the
special covenant applies only to those
hazardous substances actually
transported offsite or destroyed
eliminated, or permanently immobilized.
Thus to the extent that hazardous
substances remain onsite. the standard
reopeners for future liability must be
included in the convenant not to sue. For
example. Site X has soil contamination
to a depth of 30 feet but under present
health standards only the first Five feet
need to be incinerated. Assuming the
incineration process meets the
requirements of section 122(0(2X8). a
special convenant may be granted for
the incinerated soil but under no
circumstances would a covenant not to
sue for future liability without the
standard reopeners be issued for the
contaminated lower 25 feet of soiL
IV. Status of Interim Settlement Policy
The Interim Settlement Policy remains
in effect to the extent not contradicted
by SARA or by this or any other
subsequent guidance. Nonetheless. •
number of points from that policy are
worth re-emphasizing:
(1) Covenants not to sue will not be
issued for redisposal liability unless
section 12Zf.fl(2)(A) applies:
(2) Covenants not to sue in
agreements where EPA has performed
the remedy and EPA is seeking only the
recovery of its costs should be no more
expansive than covenants not to sue in
consent decrees where the responsible
parties agree to do the remedy;
(3) A covenant not to sue may be
given only to the responsible party
providing consideration for the
covenant:
(4) The covenant not to me must not
cover any claims other than those
involved for that site—thus unless
unusual factors an present the covenant
not to sue will apply only to claims
under sections 106 and 107 of CERCLA
and section 7003 of RCRA:
(S) The covenant not to sue must
expressly be limited to civil claims:
(6) A covenant not to sue for a
remedial investigation and feasibility
study or a removal action must be
limited to the work actually completed:
(7) A covenant not to sue regarding
natural resources may only be provided
by the Federal trustee responsible for
those resources:
(8) Responsible parties must release
any related claims against the
Hazardous Substances Superfund.
Toe policies and procedures
established in this document are
intended solely for the guidance of
government personnel They are not
intended and cannot be relied upon to
create any rights, substantive or
procedural, enforceable by any party in
litigation with the United States. The
Agency reserves the right to act at
variance with these policies and
procedures and to change them at any
time without public notice.
Covenant Not To Sue
1. A. Except as specifically provided
in Stibparsfnph C. the United Sl*m
covenants nqt to sue the settling parties
for Covered Matters. Covered Matters
shall include any and all civil liability to
the United States for causes of action
arising under if 106 and I07(a) of
CERCLA and i 7003 of RCRA relating to
the Site.
& With respect to future )•-: ui:>. this
covenant not to sue sh»li i»'« Affect
upon certification by E>'/\ 01 the
completion of the remedial action. A
determination regarding certficauon of
completion will be made by EPA within
[one. year) of successful completion of
the activities listed in Appendix -
C. Notwithstanding any other
provision in this Consent Decree, the
United States reserves the right to
institute proceedings in this action or in
a new action (1) seeking to compel
Settling Parties to perform additional
response work at the Site or (2) seeking
reimbursement of the United States'
response costs, if:
(1) For proceedings prior to EPA
certification of completion of the
remedial action.
(i) Conditions at the Site, previously
unknown to the United States, are
discovered after the entry of this
Consent Decree, or
(ii) Information is received, in whole
or in part after the entry of this Consent
Decree.
and these previously unknown
conditions or this information indicates
that the remedial action is not protective
of human health and the environment:
(2) For proceedings subsequent to EPA
certification of completion of the
remedial action.
(i) Conditions.st the Site, previously
unknown to the United States, are
discovered after the certifiestion of
completion, by EPA. or
(ii) Information received, in whole or
in part, after the certification of
completion by EPA.
and these previously unknown
conditions or this information indicates
that the remedial action is not protective
of human health and the environment.
D. The United States' right to institute
proceedings in this action or in a new
action seeking to compel Settling Parties
to perform additional response work at
the Site or seeking reimbursement of the
United States for response costs «t the
Sits, may only be exercised where the
conditions in subparagraph C are met.
[Caution: check to insure that this
subparagraph does not waive other
reserved rights in the decree relating to
additional response work.)
E. Notwithstanding any other
provision in this Consent Decree, the
covenant not to sue in subparagraph A
shall not relieve the settling parties of
their obligation to meet and maintain
-------
28044
-Federal Register / Vol. 51 No. 143 / Monday. July 27. 1987 / Noticei
compliance with tht requirement! iet
forth in thii Content Dtcree including
(he Record of Decision and Remedial
Design for the Site which i$ incorporated
herein.
|FR Doc. S7-1W4S Tiled 7-V-W. &45 nm|
FEDERAL DEI»OSrr INSURANCE
CORPORATION
Information CoOaetion Submtttvd to
OMB lor Review
AOIMCY: Federal Deposit Iniurtnct
Corporation.
ACTION: Notice of information collection
submitted to OMB for review and
approval under the Paperwork
Reduction Act of 1900.
Title of Information Collection
Consolidated Reports of Condition
and Income (Insured Stale Nonmember
Commercial Banks) (OMB No. 3064-
0052).
Background
In accordance with requirements of
the Paperwork Reduction Act of 1980 (44
U.S.C. Chapter 35). the FD1C hereby
gives nonce that it has submitted to the
Office of Management and Budget a
request for OMB review for the
information collection system identified
above.
ADOftESS: Written comments regarding
the submission should be addressed to
Robert Fishman. Office of Information
and Regulatory Affairs. Office of
Management and Budget. Washington.
DC 20503 and to John Keiper. Assistant
Executive Secretary. Federal Deposit
Insurance Corporation. Washington. DC
20429.
Comments:
Comments on this collection of
information should be submitted on or
before August 26.1967.
TOW fUMTMUl MPOmfUVnON COWTACr
Requests for a copy of the submission
should be sent to John Keiper. Assistant
Executive Secretary. Federal Deposit
Insurance Corporation. Washington. DC
20429. telephone (202) 696-3610.
SUMMARY: The FDIC is submitting for
OMB review changes to the
Consolidated Reports of Condition and
Income (Call Reports) filed quarterly by
insured state nonmember commercial
banks. These revisions were approved
at the April 21.1967. meeting of the
Federal Financial Institutions
Examination Council (FFIEC) and are
designed to reduce the reporting burden
imposed by Call Report Schedule RC-).
"Repricing Opportunities for Selected
Balance Sheet Categories." while
preserving rate sensitivity data esaential
to the commercial bank surveillance
activities of the three federal banking
agencies. The proposed changes involve
simplifying the methods used for
presenting maturity and rephcing
frequency data. These changes. Lf
approved, would become effective as of
the March 31.1968. report date.
The FFIEC approved one other change
la the Call Report requirements that is
unrelated to Schedule RC-J. This
involves a change in reporting the
"Loans secured by 1-4 family residential
properties" item in the loan schedule
(Schedule RC-C). This change would
become effective as of the December 31.
1967. report date.
As a result of the proposed changes it
is estimated that insured state
nonmember banks, collectively, would
receive an annual reduction in reporting
burden of 121.006 hours. The annual
reporting burden on these banks would
then amount to 668.996 hours.
Dated: |uly a. IM:.
Federal Dtposii Insurant* Corporation.
Man, tret M. Olsea,
Dfpury ExKutiv* SfCffiary.
(FR Doc. 87-16944 Filtd 7-24-*7: MS am)
SUJJM COM «7 !«-»»-«•
FEDERAL EMERGENCY
MANAGEMENT AGENCY
(FEMA-7t»-Oft!
Major Draastef and Related
Determination* Iowa
AOfNcr. Federal Emergency
Management Agency.'
Acno*: Notice.
SUMMANV: This is a notice of the
Presidential declaration of a major
disaster for the State of Iowa. (FEMA-
7BS-DR). dated July 17.1987. and related
determinations.
OATto: July 17.1967.
POS) PUPnMES) ttffOWBA^OH COt
Scwall RE. Johnson. Disaster
Assistance Programs. Federal
Emergency Management Agency-.
Washington. DC 20472, (202) 646-3616.
Notice
Notice is hereby given that, in • letter
of July 17.1987. the President declared •
major disaster under the authority of the
Disaster Relief Act of 1974. as amended
(42 U.S.C. 5121 tt uq.. Pub. L. 93-268).
ai follows:
I havt dttermintd that th* damaat in
certain tnas of tht Suit of Iowa mulling
from Mvtrt storm* and flooding during tht
period May 26 through 31.1M7. is of
t severity and magnitude 10 warrant
* mator
-------
STATES ENVIRONMENTAL PROTECTION \GENO
WASHINGTON. DC. :o4«o
OSWER » 9841.1
JUL I 6 1987
MEMORANDUM
SUBJECT: Interim Guidance on Use of Administrative Penalty
Provisions of Section 109 of CERCLA and Section
325 of SARA
FROM: Thomas L. Adams, Jr. iy
Assistant Administrator
TO: Regional Administrators
Regional Counsels
Directors, Regional Waste Management Divisions
This memorandum provides interim guidance on the use of the
new administrative penalty provisions of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
<»2 U.S.C. 9601 et seq. and the Superfund Amendments and Reauthori-
zation Act (SARA) or 1986, Pub. L. No. 99-499. Section 109 of SARA
amended CERCLA by adding civil penalties for violations of certain
provisions of CERCLA or agreements entered into pursuant to the
Act. The penalties may be.assessed in an administrative action or
in a judicial action. SARA also created the Emergency Planning and
Community Right-to-Know Act of 1986. Section 325 of Title III
provides for civil and criminal penalties for violations of the
notification and planning requirements of that Title.
Background
Section 109 and Section 325(b) established two classes of
administrative penalties. Those classes differ trom each other
with respect to procedures for assessing and collecting penalties
and the maximum penalty available. EPA may assess Class I
administrative penalties of not more than $25,000 per violation for
violations of the provisions specified in Section TUTCa) and section
325(b). In determining the amount of the Class I penalty, EPA must
consider the factors specified.in Section 109(a)(3) or Section
325(b)(l)(C). EPA may assess Class II administrative penalties of
not more than $25,000 per day for each day the violation continues
for violations of provisions specified in Section 109(b) or Section
325(b). For subsequent Class II violations, the penalty may be not
more than $75,000 for each day of violation.
-------
- 2 -
Section 109 and Section 325(b) also established different
procedures for the two classes of penalties. For Class I
penalties under-Section 109 or Section 325 EPA must provide notice
and opportunity for a hearing but the proceedings are not subject
to the Administrative Procedure Act (APA). EPA may subpoena
witnesses and documents for Class I proceedings. The person
aggrieved by the penalty action may seek judicial review in a
United States District Court. In such a case, EPA must file in
the court a certified copy of the record on which the penalty
was based. OECM-Waste Division is developing Class I penalty
procedures, and expect to issue these procedures shortly.
For Class II penalties under Section 109 and Section 325,
EPA must provide notice and opportunity for a hearing in
compliance with Section 554 of the APA, 5 U.S.C. 554. For Section
109 penalties, the person aggrieved by the penalty action may seek
judicial review in a United States Court of Appeals. For Class II
penalties under Section 325, the person aggrieved by the penalty
action may seek judicial review in a United States District Court.
Class II proceedings are similar to formal adjudicatory
penalty proceedings conducted by the Agency under other
environmental statutes. The Consolidated Rules of Practice,
promulgated by EPA at 40 CFR Part 22, govern the administrative
assessment under the APA of penalties available under other statutes.
To make these rules applicable to Class II proceedings under Section
109 and Section 325, OECM-Waste Division will promulgate a rule
providing that the Consolidated Rules shall govern proceedings for
the assessment of Class II administrative penalties under those
provisions.
The United States may also bring a civil action in a district
court to collect penalties of not more than $25,000 per day for
each day of violation for violations of chose provisions specified
in Section I09(c) and in Section 325(b). For subsequent violations,
EPA may seek penalties of up to $75,000 for each.day of violation.
In addition to chc Class I and Class II penalties for violations
specified in Section 325(b), Sections 325(a), (c), and (d) provide
for civil and administrative penalties for violating the require-
ments specified in chose provisions. The United States may also
seek criminal sanctions under Section 103 of CERCLA for violations
of the release notification requirement. SARA amended Section 103
of CERCLA by increasing che maximum penalties for such criminal
violations. Sections 325(b) and (d) also provide for criminal
penalties.
Current Procedures
Prior to completion of che procedures for Class I penalcies
and che promulgation of che rule amending che Consolidaced Rules,
-------
- 3 -
EPA may seek civil penalties under Section 109 or Section
325 under one of two approaches. First, the Regions may file
administrative actions assessing the Class 1 or Class II penal-
ties of Sections 109 or 325(b) or the administrative penalties
in Sections 325(c) and 325(d). In filing such actions, the Region
on an interim basis should comply with the Consolidated Rules, 40
CFR Part 22. After the Class I penalty procedures are completed.
Class I administrative penalties should be assessed in compliance
with those procedures. The Regions may also prepare a judicial
referral for civil action or a judicial referral for criminal
action. Orders under Section 325(a) may be enforced after a
judicial referral.
In the near term, EPA will be using Section 109 most
frequently to seek administrative penalties for violations of
the notice requirements of Section 103(a) and (b). Until further
guidance is available, we have attached for your use a chart
showing the elements needed to prove a violation of Section 103(a)
or (b), background information in the reportable quantities provi-
sions, and a sample certification by a person at the National
Response Center that no notice was received. More detailed
guidance on the assessment of administrative penalties under
Sections 109 and 325 is now being developed by OECM-Waste Division
and che Office of Waste Programs Enforcement. For further infor-
mation contact Frances McChesney at FTS 475-9437.
Attachments
cc: Lisa K. Friedman
Gene A. Lucero
Regional Counsel Hazardous Waste Branch Chiefs
-------
PRIHA FACIE CASE
SECTION 103(B) CERCLA. M2 U.S.C. SECTION 9603(B)
NOTIFICATION
FACT TO IE PROVED
PERSON IN CHARGE OF
VESSEL OR FACILITY
HAS KNOWLEDGE OF
RELEASE OF
HAZARDOUS SUBSTANCE
STATUTORY BASIS
103U). (B)
I03(A).
COMMENTS
103U). (B)
103U), (B)
EVIDENCE SHOWING PERSON is IN
CHARGE
OF RELEASE MAY BE INFERRED ;
STANDARD IN CIVIL CASKS LESS T1IAN
IN CRIMINAL CASES
EVIDENCE OF RELEASE
EVIDENCE THAT SUBSTANCE
RELEASED IS HAZARDOUS
-------
PRIHA FACIE CASE
SECTION 103(8) CERCLA. M2 U.S.C. SECTION %03(B)
NOTIFICATION
(CONTINUED)
FACT TO BE PROVED
IN REPORTABLF.
QUANTITY
WHO FAILS TO REPORT
THE MCIEASE
STATUTORY BASIS
103(A). (B)
COMMENTS
103(8)
EVIDENCE THAT RELEASE UAS
EQUAL TO OR EXCEEDED
REPORTABLE QUANTITY
CERTIFICATION BY NRC THAT IT
UAS NOT NOTIFIED
-------
BRIEFING ON
REPORTABLE QUANTITIES IMPLEMENTATION
BY
EMERGENCY RESPONSE DIVISION
OFFICE OF EMERGENCY AND REMEDIAL RESPONSE
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
-------
TOPICS
STATUTORY AUTHORITY
PURPOSC or RcroRTmc QUANT IT i us
RQ ADJUSTMENTS
RQ ADJUSTMENT METHODOLOGY
RCIATIONSHIP BETWEEN CERCLA AND CUA
REPORTING REQUIREMENTS
DETERMINING WHEN AN RQ HAS BEEN REIEASED
FEDERALLY PERMITTED AND CONTINUOUS RELEASE REPORTING EXEMPTIONS
-------
STATUTORY AUTHORITY
CERCLA SCCTION 101(11) DEFINES "HAZARDOUS SUBSTANCE* BY REFERENCE TO
OTHER ENVIRONMENTAL STATUTES. INCLUDING!
— CLEAN WATER ACT (CUA) SECTIONS 311 AND 307•
-- CLEAN AIR ACT (CAA) SECTION ll?i
-- RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) SECTION 3001i AND
— Toxic SUBSTANCES CONTROL ACT (TSCA) SECTION 7.
IN ADDITION. THE ADMINISTRATOR HAS THE AUTHORITY UNDER SECTION 102 TO
DESIGNATE ADDITIONAL HAZARDOUS SUBSTANCES THAT "WHEN RELEASED INTO THE
ENVIRONMENT NAY PRESENT SUBSTANTIAL DANGER TO THE PUBLIC HEALTH OR
WELFARE OR THE ENVIRONMENT." I,PA IS IN IIIK IHOCF.SS or DKSICNATINC FJCTRF/TCI.Y
HAZARDOUS SHRSTANCFS OF TIT1,F. Ill OF SARA AS HAZARDOUS SimSTANCF-S AND SFTTINC R<)S.
THERE ARE CURRENTLY 70S HAZARDOUS SUBSTANCES. INCLUDING INDIVIDUAL
CHEMICALS AND WASTE STREAMS. Mil' SllllSTANCKS AIM-; I.ISTKD AT 4O CFH PART 102.
-------
STATUTORY AUTHORITY
(CONTINUED)
UNDER THE REGULATIONS IMPLEMENTING SECTION 103. RELEASES or A
HAZARDOUS SUBSTANCE WITHIN A 2M-HOUR PERIOD IN A QUANTITY EQUAL TO OR
GREATER THAN ITS "REPORTABLE QUANTITY* MUST BE REPORTED IMMEDIATELY TO
THE NATIONAL RESPONSE CENTER (NRC). CRIMINAL PENALTIES HAY BE IMPOSED
FOR FAILURE TO REPORT PROPERLY.
REPORTABLE OUANTITITES (RQs) ARE STATUTORILY SET AT 1 POUND OR AT THE
RO ESTABLISHED UNDER CWA SECTION 311.
THE ADMINISTRATOR HAS THE AUTHORITY UNDER SECTION 102 TO ADJUST BY
REGULATION STATUTORY ROs.
- 3 -
-------
PURPOSE OF REPORTABLE QUANTITIES
B RQS SERVE AS A TRIGGER FOR NOTIFICATION TO THE FEDERAL GOVERNMENT OF A
HAZARDOUS SUBSTANCE RELEASE.
B ROS DO NOT NECESSARILY REFLECT THE DEGREE OF RISK POSED BY HAZARDOUS
SUBSTANCES.
B ONCE A RELEASE IS REPORTED. EPA DETERMINES WHETHER A FEDERAL FIELD
RESPONSE IS WARRANTED.
B NOT ALL REPORTABLE RELEASES NECESSITATE A FIELD RESPONSEi CONVERSELY.
SITUATIONS CAN OCCUR WHERE A RELEASE OF LESS THAN AN RO CAN RESULT IN
RISKS TO PUBLIC HEALTH OR WELFARE OR THE ENVIRONMENT.
B EXCEPT FOR FEDERALLY PERMITTED RELEASES. RELEASERS ARE LIABLE FOR
RESPONSE COSTS AND NATURAL RESOURCE DAMAGES RESULTING FROM A HAZARDOUS
SUBSTANCE RELEASE. REGARDLESS OF THE QUANTITY RELEASED.
- M -
-------
RQ ADJUSTMENTS
RO ADJUSTMENTS ALLOW GOVERNMENT OFFICIALS TO FOCUS ATTENTION ON THOSE
RELEASES THAT HAY POSE THE GREATEST THREAT TO PUBLIC HEALTH AND
WELFARE AND THE ENVIRONMENT.
RQ ADJUSTMENTS FOR 387 HAZARDOUS SUBSTANCES WERE PROPOSED IN AN NPRM
PUBLISHED IN THE FEDERAL REGISTER ON HAY 25. 1983. ON APRIL M. 1985.
EPA PUBLISHED!
— A FINAL RULE ADJUSTING ROS FOR 310 OF THE HAZARDOUS SUBSTANCES FOR
WHICH RO ADJUSTMENTS WERE PROPOSED IN HAY 1983t AND
— AN NPRH PROPOSING RO ADJUSTMENTS FOR 105 ADDITIONAL CERCLA
HAZARDOUS SUBSTANCES.
RQS OF THE REMAINING 260 SUBSTANCES (PRIMARILY POTENTIAL CARCINOGENS)
ARE BEING ADJUSTED AND WILL FORM THE BASIS OF A THIRD NPRH. RQS Rtt
limNTlAl, CARClNOGIvNS AND RADIDNIICUIWS WIN, UK IKONIIIXMTKI) IN I')B7.
FUTURE RQ RULEMAKINGS WILL PROVIDE CLARIFICATION OF THE REPORTING
EXEMPTIONS FOR CONTINUOUS RELEASES AND FEDERALLY PERMITTED RELEASES.
TMORF WnJMWClNnS WIN, \\f. lltnMinr,ATKI) IN IOH7.
- 5 -
-------
RQ AS TRIGGER FOB RELEASE NOTIFICATION
REPORT
REQUIRED
FROM PERSON
IN CHARGE
NRC
RELEASE OF
HAZARDOUS SUBSTANCES
(Air. GraNNrf Wattr, Sarfaco
Wattr. And
NO REPORT
REQUIRED
ALERT APPROPRIATE
AGENCIES:
EPA/USCG REGIONS.
STATE. AND LOCAL
DETERMINE IF NEED
EXISTS FOR FIELD
RESPONSE ACTION
NATIONAL RESPONSE CENTER
(100) 424 - 0002
WASHINGTON. D.C. METRO AREA
(2021 420 - 2075
* PANTIES MAY IE RESPONSIBLE FON RESPONSE COSTS OH NATURAL RESOURCE OAMAGES
EVEN IF THE AMOUNT RELEASE! IS IESS THAN THE APPLICAI1E MO.
-------
RQ ADJUSTMENT METHODOLOGY
t THE RQ ADJUSTMENT METHODOLOGY IS BASED ON SCIENTIFIC AND TECHNICAL
ANALYSIS OF THE CHARACTERISTICS OF THE HAZARDOUS SUBSTANCES.
• THE PROPOSED RO ADJUSTMENTS USE CRITERIA THAT FOCUS ON A SUBSTANCE'S
TOXICITT AND ITS CHEMICAL CHARACTERISTICS!
— AQUATIC TOXICITYI
— MAMMALIAN TOXICITT (ORAL. DERMAL. INHALATION)i
— iGNITABILITYl
— REACTIVITY*
— CHRONIC TOXICITYI AND
— CARCINOGENICITY.
• ROS CAN BE ADJUSTED UPWARD ONE LEVEL BASED ON BIODEGRADABILITY.
HYDROLYSIS. OR PHOTOLYSIS.
t EACH HAZARDOUS SUBSTANCE IS ASSIGNED ONE RO APPLICABLE TO RELEASES TO
ALL MEDIA (LAND. AIR. WATER).
- 6 -
-------
RELATIONSHIP BETWEEN CERCLA AND CWA
THE FOLLOWING ASPECTS OF THE CWA'S APPROACH TO DEALING UITH RELEASES
OF HAZARDOUS SUBSTANCES HAVE BEEN ADOPTED UNDER CERCLAs
— THE rive RO LEVELS or 1. 10. 100. 1000. AND 5000 POUNDSi
— THE MIXTURE RULE FOR DETERMINING IF NOTIFICATION IS REQUIRED FOR
HIITURES OR SOLUTIONS CONTAINING HAZARDOUS SUBSTANCES)
-- THE 2M-HOUR PERIOD FOR MEASURING WHETHER A REPORTABLE QUANTITY OF
A HAZARDOUS SUBSTANCE HAS BEEN RElEASEDi AND
-- THE REQUIREMENT THAT RELEASES BE REPORTED IMMEDIATELY TO THE NRC.
- 7 -
-------
RELATIONSHIP BETWEEN CERCLA AND CWA
(CONTINUED)
• THE CWA IS LIMITED IN SCOPE AND DIFFERS FROM CERCLA IN THE FOLLOWING
RESPECTSs
— CERCLA COVERS RELEASES INTO ALL ENVIRONMENTAL MEDIA. UNLIKE THE
CWA WHICH COVERS ONLY NAVIGABLE WATERS I
— CERCLA DOES NOT COVER OIL SPILLS. UNLIKE THE CWA WHICH REQUIRES
OIL SHEENS TO BC REPORTED TO THE NRCi
— CWA SECTION 311 RQS ARE BASED ON AQUATIC TOXICITYi BECAUSE CERCLA
APPLIES TO All ENVIRONMENTAL MEDIA. ROS BASED SOLELY ON AQUATIC
TOXICITY ARE NOT SUFFICIENT FOR THE CERCLA NOTIFICATION AND
RESPONSE PROGRAMi AND
— CWA SECTIONS 311 AND 307 TOGETHER COVER ONLY A PORTION OF THE
SUBSTANCES DEFINED AS HAZARDOUS UNDER CERCLA.
- 8 -
-------
REPORTING REQUIREMENTS
• MECHANICS or NOTIFICATION. As SOON AS A RCUASER HAS KNOWLEDGE THAT A
REPORTAIU RCLCASC HAS OCCURRED. THE NRC HUST BE CALLED IMMEDIATELY.
SUBPARTS E AND F OF THE PROPOSED NCR ALLOW THE RELEASER TO NOTIFY THE
DESIGNATED OSC IN THE APPROPRIATE EPA REGION AND U.S. COAST GUARD
DISTRICT IF NOTIFICATION TO THE NRC is IMPRACTICAL.
• PERSONS COVERED. PERSONS IN CHARGE OF A FACILITY OR VESSEL ARE
REQUIRED TO NOTIFY THE NRC OF REPORTABU RELEASES.
— "PERSONS IN CHARGE* CAN BE INTERPRETED TO INCLUDE INDIVIDUALS AS
WELL AS PUBLIC. PRIVATE. AND GOVERNMENT ENTITIES.
-- "FACILITY* is BROADLY DEFINED FOR LAND-BASED STATIONARY SOURCES
AND VEHICLES.
— "VESSEL* is ALSO BROADLY DEFINED TO INCLUDE PRACTICALLY ANYTHING
THAT FLOATS.
— THE MAJOR EXCEPTIONS TO THESE DEFINITIONS ARE CONSUMER PRODUCTS IN
CONSUMER USE.
- 9 -
-------
REPORTING REQUIREMENTS
(CONTINUED)
• SUBSTANCES COVEHEP. ALL 70S HAZARDOUS SUBSTANCES LISTED IN THE APRIL
M. 1985 FINAL RVLC ARC COVCRCDi ADDITIONAL SUBSTANCES HAT BE ADDED.
(OSU INTENDS TO ADO ABOUT 120 MORE HAZARDOUS WASTES TO THE RCRA
SECTION 3001 LIST IN THC NEAR FUTURE.) SUBSTANCES THAT ARE NOT LISTED
IN THE FINAL RULE ALSO NAY BE HAZARDOUSt
— SUBSTANCES ARE NOT LISTED UNDER ALL rossmc NAMESi AND
— WASTES WITH ICR.E CHARACTERISTICS ARE HAZARDOUS (IF NOT
SPECIFICALLY LISTED THESE WASTES HAVE AN RO OF 100 POUNDS).
• RELEASES COVERED. THE DEFINITION OF RELEASE COVERS VIRTUALLY ALL WAYS
THAT SUBSTANCES HAY ENTER THE ENVIRONMENT. HOWEVER. FOUR EXEMPTIONS
ARE PROVIDED UNDER SECTION 101(22)t
— RELEASES WHOLLY CONTAINED WITHIN A BUILDING OR STRUCTURE•
— MOBILE SOURCES OF AIR EMISSIONSi
— SOURCE. BY-PRODUCT. AND SPECIAL NUCLEAR MATERIALi AND
-- NORMAL APPLICATION OF FERTILIZERS.
- 10 -
-------
DETERMINING WHEN AN RQ HAS BEEN RELEASED
• REPORTING PERIOD> CERCLA ADOPTS 2M-HOURS AS THE PERIOD TO DETERMINE.
FOR NOTIFICATION PURPOSES. WHETHER AN RO HAS BEEN RELEASED.
t MIXTURE Run. RELEASES OF IUXTURES OR SOLUTIONS MUST BE REPORTED IF A
COMPONENT HAZARDOUS SUBSTANCE OF THE MIXTURE IS SPILLED IN AN AMOUNT
EQUAL TO OR GREATER THAN ITS RQ.
— ROS OF DIFFERENT SUBSTANCES IN A MIXTURE ARE NOT ADDITIVE. SO THAT
SPILLING A MIXTURE CONTAINING HALF AN RO OF ONE SUBSTANCE AND HALF
AN RO OF ANOTHER SUBSTANCE DOES NOT REQUIRE A REPORT.
-- WHEN THE IDENTITIES AND CONCENTRATIONS OF ALL SUBSTANCES IN A
MIXTURE ARE NOT KNOWN. THE RQ THAT APPLIES TO THE MIXTURE IS THE
LOWEST RQ OF THE COMPONENT SUBSTANCES.
• MULTIPLE RELEASES. WHEN REPORTABLE RELEASES OF THE SAME HAZARDOUS
SUBSTANCE ARE OCCURRING AT SEVERAL LOCATIONS IN A FACILITY AT THE SAME
TIME. ONLT ONE REPORT IS .REQUIRED RATHER THAN MULTIPLE REPORTS.
1!
-------
FEDERALLY PERMITTED AND CONTINUOUS RELEASE REPORTING EXEMPTIONS
SECTION 103 PROVIDES A CONFUTE REPORTING EXCHPTION FOR FEDERALLY
PERMITTED RELEASES AND A UNITED REPORTING EXCHPTION FOR CONTINUOUS
RELEASES. TIIF. RlfUttAKINr? HIM, BE nmi.lSlfEl) IN 1987.
THE UNITED EXENPTION FOR CONTINUOUS RELEASES APPLIES TO RELEASES THAT
ARE "CONTINUOUS* AND 'STABLE IN QUANTITY AND RATE.* AND FOR WHICH THE
APPROPRIATE INITIAL REPORTS NAVE BEEN SUBMITTED.
RELEASES THAT MEET THESE CONTINUOUS RELEASE CRITERIA NEED ONLY BE
REPORTED ANNUALLY. OR WHEN A "STATISTICALLY SIGNIFICANT* INCREASE IN
THE ANOUNT RELEASED OCCURS.
SECTION 101(10) OF CERCLA DEFINES RELEASES THAT ARE 'FEDERALLY
PERMITTED." THESE RELEASES ARE COVERED BY SPECIFIED PERMITS OR
REGULATIONS UNDER CWA. RCRA. CAA. THE MARINE PROTECTION. RESEARCH. AND
SANCTUARIES ACT. THE SAFE DRINKING WATER ACT. AND THE ATOMIC ENERGY
ACT.
-------
A
SB.
9838-1
JUL311987
MEMORANDUM
SUBJECT: Scope of the CERCLA Petroleum Exclusion Under
Sections 101(14) and 104(a)(2)
FROM: Francis S. B 1 a k e r
General Counsel (LE-130)
TO: J. Winston Porter
Assistant Administrator
for Solid Waste and Emergency Response (WH-562A)
One critical and recurring Issue arising in the context of
Superfund response activities has been the scope of the petroleum
exclusion under CERCLA. Specifically, you have asked whether used
oil which is contaminated by hazardous substances is considered
"petroleum" under CERCLA and thus excl-uded from CERCLA response
authority and liability unless specifically listed under RCRA or
some other statute. For the reasons discussed below, we believe
ttiat the contaminants present in used oil or any other petroleum
substance are not within the petroleum exclusion. "Contaminants ",
as discussed below, are substances not normally found in refined
petroleum fractions or present at levels which exceed those
normally found in such fractions. If these contaminants are
CERCLA hazardous substances, they are subject to CERCLA response
authority and liability.
Background
Under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended (CERCLA), governmental
response authority, release notification requirements, and
liability are largely tied to a release of a "hazardous sub-
stance." Section 104 authorizes government response to releases
or threatened releases of hazardous substances, or "pollutants or
contaminants." Similarly, liability for response costs and damages
under Section 107 attaches to persons who generate, transport or
-------
- 2 -
9838.1
dispose of hazardous substances at a site from which there
is a release or threatened release of such substances. Under
Section 103, a release of a reportable quantity of a hazardous
substance triggers notification to the National Response
Center.
The term "hazardous substance" 1s defined under CERCLA
Section 101(14) to include approximately 714 toxic substances
listed under four other environmental statutes, including RCRA.
Both the definition of hazardous substance and the definition
of "pollutant or contaminant" under Section 104(a)(2) exclude
"petroleum, including crude oil or any fraction thereof",
unless specifically listed under those statutes. !_/ Accordingly,
no petroleum substance, including used oil, can be a "hazardous
substance" except to the extent it is listed as a hazardous waste
under RCRA or under one of the other statutes. Thus two critical
issues in assessing whether a substance 1s subject to CERCLA 1s
whether or not, and to what extent, a substance 1s "petroleum."
This memorandum discusses the second type of petroleum exclusion
issue. The question, therefore, is not whether used oil 1s
"petroleum" and thus exempted from CERCLA jurisdiction, but to
wnat extent substances found in used oil which are not found 1n
crude oil or refined petroleum fractions are also "petroleum".
If such substances are not "petroleum" then a release of used
oil containing such substances nay trigger CERCLA response
actions, not to the release of used oil, but to the contaminants
present in the o11.
iy The full texts of these provisions are as follows:
Section 101(14)
....
The term [hazardous substance] does not Include petroleum,
including crude oil or any fraction thereof which 1s not other-
wise specifically listed or designated as a hazardous substance
under subparagraphs (A) through (F) of this paragraph, and
the tern dots not Include natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or
m'ixtures of natural gas and such-synthetic gas).
Section 104 (a)(2)
The term [pollutant or contaminant] does not Include
petroleum, Including crude oil and any fraction thereof which
1s not otherwise specifically listed or designated as hazardous
substances under section 101(14)(A) through (F). of this title,
nor does 1t Include natural gas, liquefied natural gas, or
synthetic gas of pipeline quality (or mixtures of natural gas
and such synthetic gas).
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9838,f.
Although the term "hazardous substance" is defined by statute
there 1s no CERCLA definition of "petroleum" and very little direct
legislative history explaining the purpose or Intended scope of
this exclusion. None of the four early Superfund bills originally
excluded responses to oil, although the apparent precursor to
Section 101(14), found in S. 1480, excluded "petroleum* without
explanation in all versions except that introduced. The legisla-
tive debates on the final compromise indicate only that Congress
intended to enact later, separate superfund-type legislation to
cover "oil spills." See generally 126 Cong. Rec. H11793-11802
(December 3, 1980).
Since the enactment of CERCLA, the Agency has provided some
interpretations of the nature and scope of the petroleum exclusion.
In providing guidance in 1981 on the notification required under
Section 103 for non-RCRA hazardous waste sites the Agency stated
that petroleum wastes, Including waste oil, which are not speci-
fically listed under RCRA are excluded from the definition.of
"hazardous substance" under 101(14). 46 Fed. Reg. 22145
(April 15, 1981). 2_/
In 1982 and in .1983, the General Counsel Issued two opinions
on the CERCLA petroleum exclusion. In the first opinion, the
General Counsel distinguished under the petroleum exclusion
between hazardous substances which are Inherent 1n petroleum,
such as benzene, and hazardous substances which are added to or
mixed with petroleum products. The General Counsel concluded
that the petroleum exclusion Includes those hazardous substances
which are inherent in petroleum but not those added to or mixed
with petroleum products. Thus, the exclusion of diesel oil as
"petroleum" Includes Its hazardous substance constituents, such
as benzene and toulene, but PCB's nixed with oil would not.be
excluded.. Moreover, 1f the petroleum product and an added
hazardous*substance are so commingled that, as « practical matter,
they cannot be separated, then the entire 011 spill 1s subject to
CERCLA response authority.
In the second opinion, the General Counsel concluded that
the petroleum exclusion as applied to crude oil "fractions"
Includes blended gasoline as well as raw gasoline, even though
refined or blended gasoline contains higher levels of hazardous
II In the notice the Agency used the ter« "waste oil"
~ wUhout stating whether it was Intended to Include all
waste oil or only unadulterated waste on. The Agency has
subsequently interpreted the reference to "waste oil" 1n this
notice to Include only unadulterated waste oil. tO £ed. Rj6£.
13460 (April 4, 1985).
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- 4 . 9838. 1
substances. The Increased level of hazardous substances results
from the blending of raw gasoline with other petroleum fractions
to increase Its octane levels. Because vi rtual 1y all gasoline
which leaves the refinery is blended gasoline, the petroleum
exclusion would include virtually none of this fraction if the
increased concentration of hazardous substances due only to its
processing made it subject to CERCLA.
Finally, the Agency has interpreted the petroleum exclusion
in two recent Federal Regi ster notices. In the April 4, 1985
final rule adjusting reportable quantities under Section 102,
the Agency provided its general interpretation of the exclusion:
interprets the petroleum exclusion to
apply to materials such as crude oil, petro-
leum feedstocks, and refined petroleum
products, even if a specifically listed or
designated hazardous substance 1s present
in such products. However, EPA does not
consider materials such as waste oil to which
listed CERCLA substances have been added to
be within the petroleum exclusion. Similarly,
pesticides are not within the petroleum
exclusion, even though the active Ingredients
of the pesticide may be contained in a petro-
leum distillate: when an RQ of a listed
.pesticide 1s released, the release must be
reported.
50 Fed. Reg. 13460 (April 4, 1985).
In March 10, 1986, the Agency published a notice of data
availability and request for comments on the proposed used oil
listing under RCRA. 51 Fed. Reg. 8206. In that notice, the
Agency responded to commenters who had argued that the RCRA
listing would discourage used oil recycling because 1t would
subject generators, transporters, processors, and users to
Superfund liability. The Agency stated that used oil which
contains hazardous substances at levels which exceed those
rrormally found 1n petroleum are currently subject to CERCLA.
51 Fed. Reg. 8206 (March 10, 1986). Although the fact that
the used oil 1$ contaminated does not remove 1t from the pro-
tection of the petroleum exclusion, the contaminants 1n the
used oil are subject to CERCLA response authority 1f they are
hazardous substances. Accordingly, most used oil, even without
a specific listing, would not be fully within the petroleum
exclusion, irrespective of the listing.
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9838 .1
Di scussi on
Because there is no definition of "petroleum" in CERCLA
or any legislative history which clearly expresses the intended
scope of this exclusion, there are several possible interpre-
tations which could be given to this provision. However, we
believe that our current interpretation, under which "petroleum"
includes hazardous substances normally found in refined petroleum
fractions but does not include either hazardous substances found
at levels which exceed those normally found 1n such fractions
or substances not normally found in such fractions, is most
consistent with the statute and the relevant legislative history.
Under this interpretation, the source of the contamination,
whether intentional addition of hazardous substances to the
petroleum or addition of hazardous substances by use of the
petroleum, is not relevant to the applicability of the petroleum
exclusion. The remainder of this memorandum explains 1n greater
detail this interpretation and Its legal basis, and responds to
arguments raised in opposition to this interpretation.
The following is our Interpretation of "petroleum" under
CERCLA 101(14) and 104(a)(2), which we believe to be consistent
with Congressional Intent and the position which the Agency has
taken on the scope of the petroleum exclusion thus far. First,
we interpret this provision to exclude from CERCLA response and
liability crude 011 ana fractions or crude oil, including the
hazardous substances, such as benzene, which are Indigenous 1i
those petroleum substances. Because these hazardous substanc
are found naturally in all crude oil and Its fractions, they i
be Included 1n the term "petroleum," for that provision to ha
liability crude oil and fractions of crude oil, Including the
jenous 1n
substances
must
have
any meaning.
Secondly, "petroleum" under CERCLA also Includes hazardous
substances which are normally mixed with or added to crude oil
or crude 611 fractions during the refining process. This Includes
hazardous substance* the levels of which are Increased during
refining. These substances are also part of "petroleum" since
their addition Is part of the normal oil separation and processing
operations at a refinery 1n order to produce the product commonly
understood to be "petroleum."
Finally, hazardous substances which are added to petroleum
or which Increase 1n concentration solely as a result of con-
tamination of the petroleum during use are not part of the
"petroleum" and thus are not excluded from CIRCLA under the
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9838-1
- 6 -
exclusion. 3y In such cases, EPA may respond to releases.of the
added hazardous substance, but not the oil Itself.
We believe that an Interpretation of "petroleum" to Include
only indigenous, refinery-added hazardous substances 1s the
Interpretation of this provision which is most consistent with
Congressional intent. The language of the provision, Its
explanation in the legislative h1-story, and the Congressional
debates on the final Superfund bill clearly Indicate that Congress
had no intention of shielding from Superfund response and liability
hazardous substances merely because they are added, Intentionally
or by use, to petroleum products.
H
The language of the petroleum exclusion describes "petroleum
principally in terms' of crude oil and crude oil fractions. This
language is virtually Identical to the language used in an earlier
Superfund bill to define "oil." £/ There 1s no Indication 1n the
statute or legislative history that the term "petroleum" was to
be given any meaning other than Its ordinary, everyday meaning.
See Malat v. Riddel!. 383 U.S. 569, 571 (1966) (words of a statute
should be interpreted where possible 1n their ordinary, everyday
sense). Petroleum is defined in a standard dictionary as
_3/ The mixing of two or more excluded petroleum substances,
~~ such as blending of fuels, would not be considered con-
tamination by use, and .the mixture WDuld thus also be an
excluded substance.
4_/ See H.R. 85, 96th Cong., 2d Sess. §101(s) (as passsed by
the House, September 1980) (""Oil" means petroleum,
including crude oil or any fraction or residue therefrom").
H.R. 85 was designed principally to provide compensation and
assess 11'ability for oil tanker spills in navigable waters.
As discussed below, the omission of this "oil spill" coverage
under the petroleum exclusion was believed to be the most
significant omission 1n terms of response to environmental
•releases under the final Superfund bill.
Although the bill containing the precursor to Section
101(14), S. 1480, does not have a definition of "petroleum".
Us accompanying report did explain the term "petroleum oil"
in the context of the taxing provisions:
The term "petroleum oil" as used in subsection 5 means
petroleum, including crude petroleum and any of its
fractions or residues other than carbon black.
S. Rep. No. 96-848, 96th Cong., 2d. Sess. 70 (1980).
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9838.1
an oily flammable bituminous liquid that
may vary from almost colorless to black,
occurs 1n many places 1n the upper strata
of the earth, is a complex mixture of
'hydrocarbons with small amounts of other
substances, and is prepared for use as
gasoline, naphtha, or other products by
various refining processes.
Webster's Ninth New Collegiate Dictionary 880 (1985). Thus, an
interpretation of the phrase "petroleum, including crude oil or
any fraction thereof" to include only crude oil, crude oil
fractions, and refined petroleum fractions is consistent with
the plain language of the statute. 5_/
The only legislative history which specifically discusses
this provision states that
petroleum, including crude oil and including
fractions of crude oil which are not otherwise
specifically listed or designated as hazardous
substances under subparagraphs (A) through (F)
of the definition, 1s excluded from the defini-
tion of a hazardous substance. The reported
bin does not cover spills or ot"her releases
strictly of olfl
S. fiep. No. 96-848, 96th Cong., zd Sess. 29-30 (1980) (emphasis
added). Thus, the petroleum exclusion 1s explained as an
exclusion from CERCLA for spills or 'releases only of oil.
The legislative history clearly contemplates that the petroleum
5/ This .distinction under the exclusion 1n Title I of
~~ CERCLA between petroleum as the substance that leaves
the refinery and the hazardous substances which are added to
1t prior to, during or after use was also made by Congress 1n
Title II, the revenue provisions or CERCLA. In Title II,
Congress Bade a distinction between "chemicals', petrochemical
feedstocks and Inorganic substances, taxed 1n Subchapter B of
Chapter 38 of Internal Revenue Code, and "petroleum', crude
oil and petroleum products, taxed 1n Subchapter A. Section
211 of CERCLA. The 11st of taxed chemicals Includes »any of
the contaminant hazardous substances typically found 1n used
oil: arsenic, cadmium, chromium, lead oxide, and mercury.
The terra 'petroleum products" was explained 1n the legislative
history as Including essentially crude oil and Its refined
fractions. H. Rep. No. 96-172, Part III, 96th Cong., 2d
Sess. 5 (1980) (to accompany H.R. 85).
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9838. 1
• O —
exclusion will not apply to mixtures of petroleum and other
toxic materials since these would not be releases "strictly
of oil".
The Congressional debates on the. final compromise Superfund
legislation provides further clarification of Congressional
intent concerning the scope of the petroleum exclusion, both 1n
terms of what this provision deleted from the bill and what it
did not. First, the major concern expressed with respect to the
final compromise bill was the omission of its oil spill juris-
diction due to the petroleum exclusion. See e.g. 126 Cong. Rec.
H11787 (Rep. Florio) (dally ed. December TTlTBt); 1d. at H11790
(Rep. Broyhill); j_d. at H11792 (Rep. Madlgan); J^.~i"t H11793
(Rep. Studds); j_d. at H11795 (Rep. Biaggi); j_d. at H11796 (Rep.
Snyder). This omission was of concern because 1t was believed
to leave coastal areas and fisheries vunerable to tanker spills
of crude and refined oil, such as the wreck of the Argo Merchant.
and offshore oil well accidents. 126 Cong. Rec. H11793 (Rep.
Studds) (daily ed. December 3, 1980). See also 126 Cong. Rec.
S10578 (proposed amendment to S1480 by Sen. Hagnuson) (dally ed.
August 1, 1980); id. at S10845 (proposed amendment to 51*80 by
Sen. Gravel) (daTTy ed. August 5, 1980). The omitted coverage
of oil spills was believed to Include approximately 500 spills
per year, 126 Cong. Rec. H11796 (Rep. Snyder) (dally ed.
December 3, 1980), far less than the number of contaminated oil
releases each year.
However, it was clear that the omission of oil coverage was
intended to include spills of oil only, and there was no Intent
-to exclude from the bill mixtures of oil. and hazardous substances
The remarks of Rep. Mikulskl are typical of the general under-
standing of the effect of the petroleum 'exclusion in the final
bill :
The Senate bill 1s substantially similar to the House
measure, with the exception that there 1s no o11 title.
I realize that 1t 1s disappointing to see no oil-
related provision 1n the bill, but we Must also realize
that this ts our only chance to get hazardous waste dump
site cleanup legislation enacted. . . .
Moreover, there 1s already a mechanism 1n place that
1s designed to deal with spills 1n navigable waterways.
There 1s not, however, any provision currently 1n our law
that addresses the potentially ruinous situation of
abandoned toxic dump sites.
I, therefore, believe that it 1s Imperative that we
pass the Senate 6111 as a very Important beginning In our
attempt to defuse the ticking environmental time bomb of
abandoned toxic waste sites.
Id. at H11796.
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.9- 9838.1
In addition, several speakers specifically Identified such
mixtures as releases not only covered by the legislation but
releases to which the bill was addressed.
Mr. Edga r ...
In my State, hazardous substances problems have been
discovered at an alarming rate in recent years. In the
summer of 1979, an oil slick appeared on the Susquehanna
River near Pittston, Pa. When EPA officials responded
under section 311 of the Clean Hater Act, they learned
that the slick contained a variety of highly poisonous
chemicals in addition to the oil.
Officials estimate that more than 300,000 gallons
of acids, cyanide compounds, industrial solvents, waste
oil and other chemicals remain at this site where they
could be washed to the surface anywhere in a 10-square -
mile surface.
J^d. at H11798. See al so 126 Cong. Rec. S14963 (daily ed.
November 24, 1980) (Sen. Randolph) (contaminated oil slick).
Other petroleum products containing hazardous substance
additives intended to be addressed by the legislation include
PCB's in transformer fluid, 1d. at S14963 (Sen. Randolph) and
S14967 (Sen. Stafford), dioxTTT 1n motor fuel used as a dust
suppressant, Jid.. at 514974 (Sen. Mitchell), PCB's 1n waste
oil, id. (Sen. Hitch-ell) 6/ and contaminated waste oil, Id.
at S1T580 (Sen. Cohen)'. Accordingly, Congress understood
the petroleum exclusion to remove from CERCLA jurisdiction
s.pills only of oil, not releases of hazardous substances
mi xed wi th the oi1.
There are two principal arguments which have been raised
in opposition to this Interpretation. First, the argument
has been made that this Interpretation narrows the petroleum
exclusion to the extent that 1t has became virtually meaning-
less. As* we have noted in previous opinions on this Issue,
an interpretation which emasculates a provision of a statute
1s strongly dlsftvored. Marsano v. Laird. 412 F.2d 65, 70
(2d C1p. 1969). However, this Interpretation leaves a
•significant nuaber of petroleum spills outside the reach of
CERCLA. Spills or releases of gasoline remain excluded from
CERCLA under the petroleum exclusion. As Indicated by the
legislative history for the 1984 underground storage -tank
6/ The Illegal disposal of PCB's 1n North Carolina described
by Senator Mitchell was a result of the spraying of 131,000
gallons of PCB-contami nated waste oil along a roadway. Siee
126 Cong. Rec. H9448 (dally ed. September 23, 1980).
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9838,1
- io -
legislation, leakage of gasoline from underground tanks
appears to be the greatest source of groundwater contamination
1n the United States. 130 Cong. Rec. S2027, 2028 (dally ed.
February 29, 1984) (Sen. Durenberger). In addition, spills
of crude or refined petroleum are not subject to Superfund,
as was frequently noted prior to Its passage. See generally
126 Cong. Rec. H11786-H11802 (dally ed. Decembe7~5, 1980).
Moreover, under this Interpretation not all releases of used
oil will be subject to CERCLA since used oil does not neces-
sarily contain non-indigenous hazardous substances or hazardous
substances 1n elevated levels. 7/ Although used oil 1s
generally "contaminated" by defTnltion, see e.g., RCRA Section
1005 (36), the Impurities added by use may not be CERCLA
hazardous substances.
A second argument which has been made opposing this
interpretation is that Congress intended to Include in the
term "petroleum" all hazardous substances added through
normal use of the petroleum substance. However, even if it
were possible to determine in a response situation whether a
hazardous substance was added Intentionally or only through
normal use or to determine what additions are "Intentional",
the legislative history is contrary to such a distinction.
As noted above, the Senate Report explaining this provision
states that 1t excludes releases or spills strictly of oil.
This explanation expresses Congressional Intent that releases
of mixtures of oil and toxic chemicals* 1_.e. releases which
are not strictly of oil, would be subject to CERCLA response
authority"! Releases of contaminated oil even if contaminated
due to "normal use" are not releases strictly of oil.
Furthermore, the Congressional debates prior to passage
clearly Indicate an Intent that contaminated oil would be
subject to Superfund as several such releases were discussed
as the focus of the legislation. Congress was concerned
with the environmental and health effect of abandoned toxic
waste sites, not whether the presence of such hazards was
Intentional or due to normal practices. In fact, one of the
petroleuB-hazardous substance Mixtures most often Mentioned
during the debates was that of PCB contaminated oil, which
1s a type of contamination arguably resulting from the "normal
use" of tht oil In transformers. Accordingly, an Interpretation
of the petroleu* exclusion which Includes as "petroleum"
hazardous substances added during use of the petroleum would
not be consistent with Congressional Intent.
7/ Data submitted to EPA b-y the Utility Solid Waste
~" Activities Group et al. 1n Appendix C of their comments
on the RCRA Used 011 listing, February 11, 1986.
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9838.1
Finally, although the Superfund Amendments and Reauthori zatlon
Act of 1986 (SARA) contains several provisions related to oil
and oil releases, 1t did not amend the petroleum exclusion under
CERCLA. Moreover, the new provisions concerning oil and oil
releases and their legislative history do not Indicate a
Congressional intent inconsistent with this opinion.
The only discussion of "petroleum" in the Conference
Report for SARA is in the context of defining the scope of the
new petroleum response fund for leaking underground storage
tanks under Subtitle I of the Resource Conservation and Recovery
Act (RCRA). Subtitle I defines "petroleum" 1n a manner nearly
identical to CERCLA. The Conference Report specifies that
used oil would be subject to the response fund notwithstanding
its contami nation* wi th hazardous substances. H. Rep. No. 99-962,
99th Cong., 2d Sess. 228 (1986). The Conference Report is
not Inconsistent with the Agency's position on "petroleum"
under CERCLA since 1t merely specifies that the leaking under-
ground storage tank (UST) response fund is applicable to tanks
containing certain mixtures of oil and hazardous substances,
as well as to tanks containing uncontaml nated petroleum. In
fact, the Report further states that the UST response fund
must cover releases of used oil from tanks since "releases
from tanks containing used oil would not rise to the priority
necessary. . .for CERCLA response", 1d. (emphasis added), not
because such releases would be entTFely excluded from CERCLA
jurisdiction. See also 132 Cong. Rec. S14928 (dally ed. October
3, 1986) (Senator Chaffee) (Nothing 1n Section 114, pertaining
to liability for releases of recycled oil, "shall affect or
impair the authority of the President to take a response action
pursuant to Section 104 or 106 of CERCLA with respect to any
release.. .of used oil or recycled oil"); 132 Cong. Rec. H9611
(dally ed. October 8, 1986) (Rep. Schneider) ("...the oil
companies are rightfully assessed a significant share of the
Superfund tax. ..Waste oils laced with contaminants have been
Identified at at least 153 Superfund sites 1n 32 States.").
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OSKER * 9835.2b
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
SEP 2 I IS87
OM<|>
f WOltetM**'
MEMORANDUM
SUBJECT: Guidance on tht Use of Stipulated Penalties in Harardous
Waste Content Decrees
FROM: Thomas L. Adams, Jr. \\M U
Assistant Administrator" ' rv
TO: Regional Administrators, Regions I-X v—^
Regional Counsels, Regions I-X
Waste Management Division Directors, Regions I-X
I have attached the final guidance addressing the use of
stipulated penalties in civil judicial settlements under CERCLA
and RCRA Section 7003. This document reflects comments which were
received from the Office of Waste Programs Enforcement (OWPE) , the
Department of Justice (DOJ), and various Regional offices.
This guidance does not apply to administrative orders, such
a,s RI/FS orders. In addition, to complement this guidance, the
Agency is considering aoditional guidance to provide positive
incentives for defendants to expedite completion of work under
consent decrees.
I appreciate your assistance in the preparation of this
guidance.
Attachment
cc: J. iHBton Porter, Assistant Administrator for Solid Waste
emK&Mrgeney Response
CeneFA. Lucero, Director, Office of Waste Programs Enforcement
Roger J. Marxulla, Acting Assistant Attorney General, Land
and Natural Resources Division, Department of Justice
David T. Buente, Chief, Environmental Enforcement Section,
U.S. Department of Justice
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GUIDANCE ON THE USE OF STIPULATED PENALTIES
IN
HAZARDOUS WASTE CONSENT DECREES
21 198T
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Offlet of EnforeoDtnc and Compliance Monitoring
1987
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TABLE OF CONTENTS
Guidance on the Use of Stipulated Penalties
in Hazardous Waste Consent Decrees
Page
I. INTRODUCTION 1
II. GUIDANCE 2
A. Use of Stipulated Penalties
1. General Rule 2
2. When Penalties May Be Excused
or Delayed 4
a. Force Majeure trvnt 4
b. Dispute Resolution Period 5
c. Period of Correction by
Defendant 6
d. Missed Interim Deadlines 6
e. Grace Period 6
B. Aaount of Stipulated Penalties
1. General Rule 7
2. Escalating Penalty 8
3. Sharing Penalties with the State 9
C. Collection of Stipulated Penalties
1. General Rule 9
2. Procedure for Collecting Penalties 10
3. Payment of Penalties 10
D. Use of Other Reaedies 1 1
£. Purpose and Use of this Guidance 12
APPENDIX - Model Stipulated Penalties Provisions
-i-
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I. INTRODUCTION
This document provides guidance on th« us* of stipulated
penalties in hazardous waste judicial consent decrees. Stipulated
penalties arc fixed sums of money chat a defendant agrees to pay
for violating the tens of a decree. Such penalties are an
effective enforceaent tool for encouraging compliance with a
consent decree.
This guidance applies to consent decrees under the
Comprehensive Environmental Response. Compensation, and Liability
Act of 1980 (CERCLA), 42 U.S.C. I 9601 £t feg.. as aaended, and
Section 7003 of the Resource Conservation and Recovery Act of
1976 (RCRA), 42 U.S.C. S 6973, supplements existing guidance,]/
issued by the United States Environmental Protection Agency (EPA),
and incorporates recent Agency experiences in negotiating and
overseeing consent decrees; The .Agency strongly encourages the
use of stipulated penalty provisions in consent decrees. It also
supports the use of contempt penalties, statutory penalties and
injunctive relief at additional sanctions for the violation of
consent decrees.
1/ Set "Drafting Content Decrees in Hazardous Waste Imminent
Baxa7cTCat«sH (Office of Enforcement and Compliance Monitoring
(OECM), Office of Solid Watte and Emergency Response (OSWER),
May 1, 1985). "Guidance for Drafting Judicial Content Decrees"
(OECM, October 19, 1983), "Divition of Penaltiet with State and
Local Governmentt" (OECM. October 30, 1985). "Ramittance of Fines
and Civil Penaltiet" (OECM, April 15. 1985) and the Superfund
Amendments and Reauthorization Act of 19b6.
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• 2 -
While chc concept of stipulateo penalties al«o has rele-
vance for administrative orders, distinctions between fueh
orders and content decrees may necessitate cove differences in
precise Application. Guidance on use of stipulated penalties
in administrative orders will be provided separately.
II. GUIDANCE
A. Use of Stipulated Penalties
1• General Rule
In the past, it has been OECM policy to include stipulated
penalties in most consent decrees. See "Guidance for Drafting
Judicial Consent Decrees" at 22. Moreover, the Superfund
Amendment* and Reauthoritation Act of 1986 (SARA) requires that
consent decrees which provide for reaedial action?/ contain
stipulated penalties. Section 121(e)(2) of SARA provides that:
...Each consent decree shall also contain stipulated
penalties for violations of the decree in an amount
not to exceed $25,000 per .day, which »ay be enforced
by either the President or the State. Such stipulated
penalties shall not be construed to impair or affect
the authority of the court to order compliance with
the •pacific terms of any such decree. (Emphasis added).
However, ••felon 121 dot* not explicitly require that every
requirement « concent decree have a stipulated penalty
attached t» it.
2/ Although Stction 121 deals with "rtatdial" actions, it is
~ recommenced that «tipulattd ptn«ltie» bt included in consent
decrees for removals "*s well.
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- 3 -
Section 122(1) Also permits additional penalty sanctions
for violations of the requirements of a content decree. Sec-
tion 122(1) of SARA provides as follows:
(1) CIVIL PENALTIES - A potentially responsible
party which is a party to an adainistrative
order or consent decree entered pursuant to an
agreement under this section or section 120
(relating to Federal facilities) or which is
a party to an agreement under section 120
and which fails or refuses to coop .y with
any ten or condition of the order, decree
or other agreement shall be subject to a
civil penalty in accordance with section 109.
Thus, in the context of a CERCLA consent decree with mandated
stipulated penalties, both the stipulated penalties contained
in the consent decree and the Section 122(1) penalties Bay be
assessed for violations of the terns of the decree. However.
in limited circumstances, where the stipulated daily penalty
amounts are sufficiently high to effectively deter noncompliance
with the decree, the Agency may consider waiving Section 122(1)
penalties. Such penalties nonetheless may be sought for any
violations to which no stipulated penalty attaches.
SeJBBBfrftd penalties are seldom applicable to noncompli-
ance vi*Mssfef7 requirement of a decree. Most often they are
applicable] to compliance schedules, performance standards, and
reporting requirements. The types of violations for which
stipulated penalties should be required will necessarily depend
on the value the Agency places on the activity to be performed
and the importance of timely performance.
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- 4 -
Even consent decrees which primarily involvt a "cash out"
(i.e., where the dtftndanc pays a fixed SUB of money to abaolvt
himself of his remedial obligations) warrant tht inclusion
of stipulated penalties. For exaaple, if a defendant agrees to
pay his cash out share in installments , stipulated penalties
should be used to penalize late payments. If a case arises in
which the defendant oust perform certain tasks in addition to
cashing out (such as providing site access or security), stipu-
lated penalties should be imposed to ensure that the defendant
performs those tasks.
2. When Penalties May Be Excused Or Delayed
Usually stipulated penalties should begin to accrue after
the date on which complete performance of a particular task is
due. Stipulated penalties will not necessarily accrue, or the
accrual of such penalties may be stayed or waived, however,
during designated periods or by the occurrence of certain
events.
a. Fce Maleure
On* iBPChe mote common reasons for the noncollection of
•tipulatejmlpcBaltlea is the occurrence of a force majeure
•vent. A force majeure event is one which is beyond' the control
of the defendant and provides the defendant with an affirmative
£/ Model force majeure language is forthcoming as an appendix
~ hereto.
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defense to a charge of noncoopliance. Since penalties do no:
accrue during this period, the definition of a force majeure
event should be narrowly drawn and the burden placed on the
defendant to show that a force majeure event hat occurred. In
any event, neither increased costs nor financial difficulty
should constitute a force majeure event.
b. Dispute Resolution Period
To avoid creating incentives to dispute consent decree
obligations, stipulated penalties generally should accrue for
any nonperforoance occurring during the period of dispute.
However, for Halted types of disputes, EPA nay agree to waive
the accrual of penalties during the dispute resolution period.
For exaaple, consent decrees often perait the Agency to require
that additional work be perforaed beyond that specifically
provided for in the work plan. Where the defendants becose
aware of substantial "aid-course corrections" after, the decree
is signed, it aay be appropriate to forego stipulated penalties
during any legitimate dispute related to the additional work
sought by _0A*
Stipulated penalties will not be collected if the defendan:
wins the dispute. In addition, in appropriate eircuastances
the Agency Bay ust its discretion not co collect stipulated
penalties, in whole or in part, which have accrued during the
dispute resolution period.
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c. Period of Correction by Defendant
A stipulated penalties provision nay indicate that penalties
will accrue until the violation is corrected by the defendant.
To miniaize uncertainties and foster ciaely and full compliance,
such a statement should specify that penalties will accrue
through the last day of correction, as determined by the Agency,
rather than cease to accrue on the day the defendant begins to
correct the violation.
d. Missed Interia Deadlines
Sosje decrees provide that penalties for inceria deadline
violations will, not be sought if the defendant meets the final
completion date. Since in many, instances the final deadline is
the most important, Che penalties for violations of interim
milestones may be waived in some cases. It should be clear to
che defendant, however, chat if the final deadline is missed,
the penalties for inceria deadline violacions will be sought in
addition co chose which would accrue afcer che final deadline.
The "Guidance for Drafting Judicial Consenc Decrees" noces chat
inceria deadline penalties aay be collected up fronc and placed
inco an ••crew accounc, co be recurned co che defendanc in the-
evenc che final compliance deadline la aec. l±. *c 24.
e. Grace Period
Sane prior decrees provided for a fixed period iaaediacely
following nocifictcion of a violacion in which che defendanc
was given che opporcunicy co explain his noncompliance and/or
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corrtcc it and during which stipulated penalties would not
accrue. The length of such grace periods has ranged from 3 to
30 days. However, by requiring that every consent decree
contain stipulated penalties, Congress has endorsed a strong
preference for strict compliance with the terns of a decree.
While the Agency does not endorse the use of grace periods, if
a violation is expediciously resolved the Agency may use its
discretion not to seek stipulated penalties.
B. Amount of Stipulated Penalties
1. General Rule
Since stipulated penalties arc intended to ensure compliance
they should be sufficient to provide economic incentives to the
defendant to comply with the terns of the concent decree in a
timely fashion. The penalty should not bt set so low that the
defendant would prefer to pay the penalty rather than perform
the required activity.^/ Therefore, stipulated penalties should
generally be set at a level designed to exceed the amount of
the estimated savings due to delay. In setting the amount the
Agency should also take into consideration the gravity of the
violation «ad the degree of ham or danger to the public or
environment which Bight result from the violation.
4/ Actual performance is required regardless of the payment
" of penalties. The Agency reserves the right to seek injunc-
tive relief, modify the decree, or seek other remedies in such
instances.
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- .8 -
Each stipulated penalties provision should state a fixed
amount ptr day co be imposed. This "sum ctrtain" puts the
defendant on notice of the potential extent of his obligation
before a violation occurs.£/ The "undetermined amount" approach
(i.e., "defendant shall pay u£ £o $5000/day") should not be used
since it makes the amount of the penalty subject to further
resolution. The "undetermined amount" may destroy the economy
of using stipulated penalties since the parties must then
resolve the ultimate amount.
2. Escalating Penalty
Consent decrees should provide that the per diem amount of
the penalty will increase with incremental increases in the
period of noncompliance. For example, a fixed penalty of
$5,000 per day might increase to $10.000 per day after the 15th
day of noncompliance, and $15,000 per day after the 30th day.
Escalating penalties will give the defendant added incentive to
come i'nto compliance, and it is recommended that they be used
as a general rule.
*/ To th« extant that EPA reserves its rights to seek penal-
" tits under SARA S 109 or civil contenpt orders, however,
the "SUB certain" argument is really only an indication of
the minimum amount for which a consent decree violator may
be liable.
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3. Sharing Penalties vich the State6/
Generally, civil penalties may bt shared with a State if
cht State has actively participated in the litigation, actively
sought such penalties, and State lav provides independent
authority for the State to seek civil penalties.?/ In addition,
[t]he penalties should be divided in a proposed
consent decree based on the level of partici-
pation and the penalty assessment authority of
the state or locality....[T)he division should
reflect a fair apportionment based on the tech-
nical and legal contributions of the partici-
pants, within the limits of each participant's
statutory entitlement to penalties.
"Division of Penalties with State and Local Governments" at 3.
Any agreement to share penalties with a State «ust be described
in the consent decree. "Division of Penalties with State and
Local Governments" at 2.
C. Collection of Stipulated Penalties
1. General Rule
Since Agency policy encourages aggressive post-settlement
enforcement, it is essential to the integrity.of the enforce-
sent program that stipulated penalties be collected. Every
*/ Note that Section 121(e)(2) of SARA gives States the author-
~ ity co enforce the stipulated penalties section of consent
decrees.
II Penalty division is a natter for discussion only between
" the governaental parties, and it is inappropriate for the
defendant to participate in such discussions. "Division of
Penalties with State and Local Governoents" (OECM, October 30.
1965) at 3.
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- 10 -
effort shall be aade to collect stipulated penalties both to
deter future noncoopliance by defendants and to maintain the
Agency's enforcement credibility. The Agency thus will not
hesitate co initiate Judicial actions to enforce the stipulated
penalties provision of consent decrees.
2. Procedure for Collecting. Penalties
Forfeiture is the best method of collecting penalties and
should be provided for in the decree. Under this procedure,
upon notice of a violation^/ the defendant will have a stated
number of days to pay che penalty or to move the issue into
dispute resolution.
Consent decrees should not contain a limitations period
for demanding stipulated penalties which results in Che waiver
of penalties that are not demanded within a specified period of
time.
3. Payment of Penalties
The stipulated penalties section should indicate to whom
monies are payable. This is particularly important for actions
brought und«r CERCLA, since che "Superfund" is partially replen-
ished by s*ocl«s paid under chac statute. Although monies
collected pursuant to RCRA generally are paid co che "Treasurer
of the United States," stipulated penalties collected pursuant
*/ Penalties should begin " Accrue on the day on which the vio-
"" lation actually occurs and noc wh«n cht Agtncy lacer discovers
it or gives notice to che defendant.
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to CERCLA violations are co be made payable to Che "Hazardous
Sub*canccs Superfund."£/ All penalties ahould be paid by cere ifled
check, concain the coaplece address of the defendanc, include
Che aice idencificacion number if there ia on*, and reference
ch« caae name and civil action nuaber.
D. U»e of Other Remedies
Collection of acipulaced penalties ia not the aole reaedy
for violations of a decree. There say be tiae* when the Agency
will aeek additional remedies, auch aa the court*a equitable
contempt powers or the collection of additional penalties under
SARA or other applicable authorities. See, e.g. . SARA $ 109.
Thua, to preserve the Agency's rights, each section on stipulated
penalties should state that these penalties are "in addition co,
and not in lieu of" the Agency's right co other sanctions for
violations of the decree.10/
9/ This is supported by the guidance nemorandurn on "Remittance
~ of Fines and Civil Penalties" (OLCh, April IS, 1985) which
indicate* that "all Superfund billings" should go into a lock-
box bank •pacifically designated for Superfund monies. In
addition, since Section 107(c)(3) of CERCLA. directs chat puni-
tive daaafea go into the Superfund, our view is that CERCLA
stipulated penalties ahould be depoaited there as veil.
The address for the CERCLA loekbox is:
EPA - Superfund
P.O. Box 371003M
Pittsburgh, PA 15251
10/ Subject, of course, to.any waiver -of Section 122(1) penal-
ties (see discussion at p. 3).
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- 12 -
E. Purpose and U«e cf This Guidance
This guidance and any internal procedure* adopted for ice
iaplenentation are intended solely as guidance for employees
of Che United States Environnental Protection Agency. They
do not constitute ruleaaking by the Agency and may not be
relied upon to create a right or a benefit, substantive or
procedural, enforceable at law or in equity, by any person.
The Agency oay take action at variance with this guidance or
its internal implementing procedures.
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APPENDIX
MODEL STIPULATED PENALTIES PROVISIONS11/
. STIPULATED PENALTIES
1 . Defendant shall pay stipulated ptnaltiti in the amounts
set forth in paragraph 9 to the United States [and/or the State
of ] for failure to comply with [sections of] this
Consent Decree, unless excused under paragraph ("Force
Majeure"). Compliance by Defendant shall inclu3e""completion of
an activity under this decree or a plan approved under this
decree or any natter under this decree in an acceptable Banner
and within the specified tiae schedules in and approved under
this Decree. [If Defendant fails to neet [specified] interim
deadlines, but meets the final completion date for the work to
be per formed herein, the penalties for aissed interin deadlines
are excused]. Any aodifications of the tiae for performance
pursuant to section ("Modifications") shall be in writing.
2. All penalties begin to accrue on the day that complete
performance is due or a violation occurs, and continue to
accrue through the final day of correction of the noncoapliance.
Nothing herein shall prevent the simultaneous accrual of sep-
arate penalties for separate violations of this Decree.
3; Following Plaintiff's determination that Defendant has
failed to comply with the requirements of this Decree, Plain*
tiff shall give Defendant written-notification of the same and
describe the noncompliance. Said notice shall also indicate
the amount of penalties due.
4. All penalties owed to the United States [or State]
unoer this section shall be payable within 30 days of receipt
of the notification of noncoapliance. unless defendant invokes
the dispute resolution procedures under section ___. Penalties
shall accrue from the dace of violation reg*^*** of whether
EPA [or tb* State] hat notified Defendant of a violation.
Interest afcall begin to accrue on the unpaid balance at the end
of the 30-^*7 period. Such penalties shall be paid by certified
check to {"Treasurer of the United States" for RCRA penalties, or
"Treasurer of the State of X", or to the "Hazardous Substances
Superfund" for CERCLA penalties] and shall contain Defendant's
complete and correct address, tht site name, [the site spill
identifier nuaber (SSID)], and the civil action nuaber. All
11 / Bracketed provisions are optional.
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A-2
checks shall be mailed co [the appropriate Federal lockbox bank
or Scace potcal address].
5. Neither the filing of a petition to resolve a dispute
nor che payment of penalties shall alter in any way Defendant's
obligation to complete the performance required hereunder.
6. Defendant nay dispute Plaintiff's right to the stated
aaount of penalties by invoking che dispute resolution procedures
under section herein. [Penalties shall accrue buc need not
be paid during the dispute resolution period. If che District
Court becomes involved in the resolution of the dispute, the
period of dispute shall end upon the rendering of a decision by
che District Court regardless of whether any party appeals such
decision]. If Defendant does not prevail upon resolution,
Plaintiff has che right to collect all penalties which accrued
prior to and during the period of dispute. [In che event of an
appeal, such penalties shall be placed into an escrow account
until a decision has been rendered by the final court of appeal].
If Defendant prevails upon resolution, no penalties shall be
payable.
7. No penalcies shall accrue for violations of this
Decree caused by events beyond the control of Defendant as
identified in Section herein ("Force Majturt)"]1 */. Defen-
dant has che burden of proving force majeure or compliance with
this Decree.
8. If Defendant fails co pay scipulactd penalcies,
Plaintiff may inscicuce proceedings co collecc che penalcies.
However, nothing in chis seccion shall be construed as prohib-
icing, alctring, or in any way limicing che abilicy of Plainciff
co seek any other remedies or sanctions available by virtue of
Defendant's violacion of chis Decree or of che statutes and
regulations upon which ic is based.
9. The following stipulated penalties shall be payable
per violation per day co che Uniced States [and/or Scace] for
any nonco»pli*nct idencified in sub paragraph 1 above V3/:
12/ with Che exception of scipulactd penalties clauses in
~ consent decrees providing toltly for ca«h payments, aosc
decrees will include force majeure clauses.
13/ pleast noct chac cht ptnalcy Mounts ttc oue above are only
""" examples, and cht anouncs oay vary with tach individual
case.
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A-3
[ Amount/Day Period of Noncompliance
5 5,000 1st thru 14th day
510,000 15th thru 30th day
$15,000 31st day and beyond ]
10. No payment* made under thia section shall be tax deduc-
tible.
11. This section shall remain in full force and effect for
the tern of this Decree.
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OSWER # 9832.12
T
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. D.C. 20*60
SEP 2 2 1587
rf 01
MEMORANDUM
SUBJECT: Guidance on Federal Superfund Liens
FROM: Thomas L. Adams, /r.
Assistant Admin istrat or "
TO: Regional Administrators, Regions 1-X
Regional Counsels, Regions I-X
Directors, Waste Management Division,
Regions 1-X
The purpose of this memorandum is to establish guidance on
the use of federal liens to enhance Superfund cost recovery.
Section 107(f) of the Superfund Amendments and Reauthorization
Act of 1986 ("SARA"), adds a new Section 107(1) to CERCLA, which
provides for the establishment of a federal lien in favor of the
United States upon property which is the subject of a removal or
remedial action.
This guidance provides: (1.) analysis of statutory issues
regarding the nature and scope of the lien, (2) policy on filing
a federal lien to support a cost recovery action, and (3) proce-
dures for filing a notice of lien and taking an in rem action to
recover the costs of a lien. Attached to the guidance is an
example of a notice of a Superfund lien.
I. STATUTORY BACKGROUND AND ISSUES
A. Property Covered by Lien
Section 107(1) of CERCLA provides that all costs and damages
for which a person is liable to the United States in a cost
recovery action shall constitute e Ve->. 4n favor of the United
States upon all real property and rights to such property which
U) belong to such person and (2) are subject to or affected by
a removal or remedial action. The lien applies to all property
owned by the FRP upon which response action has been taken, not
just the portion of the property directly affected by cleanup
activities. The House Judiciary Committee Report on the lien
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- 2 -
provision in H.R. 2817 (p. 18), which was enacted as part of
SARA, states that "the lien should apply to the title to the
entire property on which the response action was taken." At the
same time, the Report notes that "it is not intended to extend
the lien to the title of other property held by che responsible
party. ' Id.
The lien provision is designed to facilitate the United States'
recovery of response costs and prevent windfalls. "A statutory
lien would allow the Federal Government to recover the enhanced
value of the property and tfcus prevent the owner from realizing a
windfall from fund cleanup and restoration activities." 131 Cong.
Rec. SI 1530 (Statement of Sen. Stafford) (September 17, 1985).
See also House Energy and Commerce Report on H.R. 2817, p. UQ,
indicating that one of Congress" primary purposes in enactin?
the lien provision was to prevent unjust enrichment.
B. Duration and Effect of L*.er
The federal lien arises "at the later of the following:
(A) the time costs are first incurred by the United States with
respect to a response action under [SARA, or] (B) che time that
the person is provided (by certified or registered mail) written
notice of potential liability." (Emphasis added) (S107 (1)(2)).
EPA may send out two different types of notice letters to PRPs.
The first, a general notice letter, will be sent early in the
process notifying the recipient that he or she has been identified
as a party who may be responsible for cleanup of the site-or for
the costs of cleanup. In addition, the Agency may send a sub-
sequent "special" notice which will invoke and commence the
settlement procedures in Section 122 of SARA. The first of those
letters will satisfy the notice of potential liability required
for the federal lien to arise, assuming that it does give the PRP
notice of potential liability for cleanup of costs, and is for-?
warded by certified or registered mail.
It is EPA'» pocition chat Che lien provision applies co costs
incurred prior co and afcer passage of SARA. The litn also applies
co all future coses incurred ac the sice. The lien continues
"until che liability for che coses (or a judgment against che
person arising ouc of such liability) is satisfied or becomes
unenforceable through operation of che statute of limitations
provided in section M3." (SI07(1) (2))
C. Prioricy of Federal Lien In Relation co Other Property
Liens
The federal lien is "subject to che righcs of any purchaser,
holder of a security interest, pr judgment lien creditor whose
interest is perfected under applicable State law before notice of
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the federal lien has been filed [by EPA]." (5107(1)(3)) Thus, the
unfiled federal lien is subordinate to rights that are perfected
under applicable State law before EPA files notice of its federal
Superfund lien. After EPA files notice of the federal lien, the
United States establishes its priority ahead of known and potential
purchasers, holders of security interests, and judgment lien credi-
tors whose interests have not been perfected.
During deliberation on the Superfund amendments, Congress
considered a provision in H.R. 2005 IS. 51] which provided for
constructive notice of an EPA, lien. . Under that provision, if EPA
failed to file its notice of lien in a timely fashion, the EPA
lien would nonetheless have had priority over a third party lien
which was filed prior in time if the third party had or reasonablv
should have had actual knowledge that EPA had incurred costs
which would have given rise to a lien. See Environment and Public
Works Report on S. 51, p. 45. Thus, since this provision was
ultimately deleted from t!.e Act, EPA must file its lien in.order
to achieve priority over any other secured parties, and cannot rely
on constructive notice.
D. State Superfund Liens
Most States have passed "Superfund" statutes similar to the
federal law. However, a State Superfund lien only applies to
response work paid for by a State. Some of the State statutes,
such as those in Massachusetts, New Hampshire, New Jersey, Arkansas
and'Tennessee, contain "superlien" provisions which provide that
any expenditures made pursuant to the statute constitute a first
priority I-en upon the real property of a hazardous waste dis-
charger. Several other States provide that expenditures from the
hazardous waste fund will constitute a lien in favor of the State,
although not a first-priority lien.
II. POLICY ON FILING FEDERAL LIENS IN COST-RECOVERY ACTIONS
EPA has the authority to file notice of a lien on any real
property where Superfund expenditures have been made. Regional
offices should carefully evaluate the value of filing notice of a
lien whenever the Agency has identified a landowner as a potenti-
ally liable party under Section 107. Filing of notice of tne
federal lien will be particularly ber£*".:ial to the government's
efforts to recover costs in a subsequent Section 107 action in the
following situations:
(1) the property is the chief or the substantial
asset of the PRP;
(2) the property has substantial monetary value;
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(3) there is a likelihood chat the defendant owner
may file for bankruptcy. See Revised Hazardous
Waste Bankruptcy Guidance, Office of Enforcement
and Compliance Monitoring, May 23, 1986;
(4) the value of the property viil increase signi-
ficantly as a result of the removal or remedial
work; or
(5) the PRP plans to sell the property.
Regional offices should not file notice where it appears that
the defendant satisfies the elements of the innocent landowner
defense pursuant to Section 107 (b) (3).
Where existing perfected non-Superfund liens on the property
equal or exceed the value of the property as enhanced by the
Superfund expenditures, it may not be worthwhile to file notice of
the federal lien. However, in some cases, a foreclosing party,
such as a bank, may take over the property, and EPA may believe
that the foreclosing party is liable under Section 107. Sej> United
States v. Maryland Bank and Trust Co. . 632 F. Sup>-. 373 (D. Me.
1966). In such cases, EPA should file a lien as to the foreclosing
party after foreclosure and aft-er other acts creating liaoility
have taken place.
Pursuant to Section 545(2) of the Bankruptcy Code, a lien
un-perfected as cf the time of filing of the bankruptcy petition
will be invalidated by the bankruptcy trustee. Thus, where there
is a likelihood of a bankruptcy filing, notice of the Superfund
lien should be filed as early as possible. Finally, note chat
filing notice of the lien is not subject to pre-enforcereent review
of che liability of Che landowner for che response costs.j,/
III. PROCEDURES FOR FILING LIENS
Nocice of che federal- lien should be filed ac che time chat
che owner it provided notice of potential liability. By this time,
che lien will have arisen since EPA will have incurred coses, e.g.- .
If Courts have rejecced .claims chac owners are encicled Co notice
~" and hearing prior Co filing of the lien. In Spielman Fond.
Inc. v. Hanson's Inc.. 379 F. Supp. 997 (D. Ariz.) (3 judge court),
Tummarily att'd. 4TT U.S. 901 (1974), the court held chat filing of
a mechanic's lien did noc amount to a taking of significant property
without due process, since it did not prohibit the transfer of title,
Subsequent court decisions have followed this holding. See, e.g.,
B & P Development "v. Walker. 420 F. Supp. 70<* (W.D. Pa. W/6).
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- 5 -
in conducting a PRP search. The government's priority will relate
back to the date.that the notice of the lien was filed. See
Uniform Commercial Code, 59-31 2 (5 ) (a). Unlike some State~S"u"perfund
lien provisions, Section 107 does not establish a deadline by which
notice must be filed.
A. Preparing the Notice
Regional enforcement personnel should refer to State
requirements for filing notice of the lien. We encourage the
Regions to work with State Attorney General Offices to assure
that the Regions accurately interpret State law, and to consult
with OECM and DOJ in determining whether to file notice of the
lien.
Notice should generally include: (1) the name of the property
owner, (2) a precise legal description of the property on which the
lien will arise, (3) an explanation by the Regional official of the
basis for the lien, (4) the address of the Regional Administrator
or other Regional official delegated authority to sign notices of
liens, and (5) a provision that the lien shall remain until all
liability is satisfied. The notice should cite CERCLA Section
107(1) and be notarized with the Agency seal.
Notice may also include such information as: (1) the amount
of fund expenditures upon which the lien is claimed and (2) a
description of labor performed and materials supplied, including
dates. However, since Che statute does not require specification
of costs, the notice should clarify that, where response work is
ongoing, the amount of Che lien will increase as the coses incurred
increase. The property description to be included in the notice of
Che lien should be the legal description (i.*. , metes and bounds,
or lot, block and subdivision) rather than a general post office or
street address. We have attached an example of .a notice of a
federal lien.
Under che recent SARA delegation, the Regional Administrator
has been delegated authority co sign che notice of filed lien.
The Regional Administrator nay redelegace this authority ac his/her
discretion.
B. Where to File
To establish Its priority among ocher secured parties and
credicors, EPA mist £11* nocice of che lien "in che appropriate
office within the State (or county or other governmental sub-
division), as designated by State law, in which the real property
subject to the lien is located." (S107(1)(3))
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- 6 -
Where the State has designated an office, such as a County
recording office, the lien should be filed in that office. This
will likely be the same office where State Superfund liens are
filed or where general real property liens, e.g. mechanic's liens,
are filed. "If the State has not by law designated one office for
the receipt of such notices of liens, the notice shall be filed in
the office of the clerk of the United States district court for the
district in which the real property is located." ($107(1)(3))
Where there is any doubt as co the designated State office,
the lien should be filed both in the office of the clerk of the
United States district court for the district in which the real
property is located and in r?he most appropriate local office for
recording property interests. Filing in the appropriate local
office is important, since parties with an interest in the property
are more likely to review liens in the local office than in federal
district court.
IV. IN REM ACTIONS FOR xEJOVERING COSTS CONSTITUTING THE LIEN
Under Section 107(1)(4), "[tjhe costs constituting the lien
may be recovered in an action in rem in the United States district
court for the district in whicTPthe removal or remedial action is
occurring or has occurred." An in rem action is an action against
the property of the PRP. In. order to institute a proceeding rn re~,
the property must "be actually or constructively within the reach
of the court." 36 Am. Jur. 2d Forfeitures and Penalties §28 (1966;.
By contrast, the typical cost recovery action is an in personam
action against the PRP.
In rep actions .should be considered where the litigation team
believes that an action to recover costs covered by the lien will'
enhance its efforts to recover all costs incurred in a response
action. Such actions will be particularly useful where the pro-
perty constitutes a significant asset of the PRP, and where the
government is having difficulty reaching an expeditious cost
recovery settlement. The in rem action, which will seek an order
directing sale of the property,^/ should generally be combined with
an in personam action for costsT Before bringing an in rem action.
the regional office should consider the amount of the claim, the
2/ An i£ rem action may be delayed by an automatic stay, obtained
~ in a bankruptcy proceeding, which serves to stay "any act to
create, perfect, or enforce any lien against property of the
estate." (Emphasis added) 11 U.S.C. S362(a)(A). The automatic
stay also prohibits perfection of a lien, through filing notice
of the lien, against a bankruptcy debtor.
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conaition of the site after the response action and the likely
marketability of the site. Note that an in rem action will require
the same elements of proof as any cost recovery action.
Section 107(1)(4) further states that "(njothing in this
subsection shall affect the right of the United Scates to bring an
action against any person to recover all costs and damages for
which such person is liable under subsection (a) of this section."
Thus, where the government seek* to enforce the federal lien, it is
not precluded from recovering the balance of its response costs
directly from the landowner or any other liable party.3/
DISCLAIMER
This meaoranduai and any internal procedures adopted for its
implementation are intended solely as guidance for employees : -he
U.S. Environmental Protection Agency. They do not constitute
rulesaking by the Agency and may not be relied upon to create a
right or a benefit, substantive o- -rocedural, enforceable at law
or in equity, by any person. The Agency may take action at variance
with this memorandum or its internal implementing procedures.
Attachment
3/ Moreover, after EPA obtains a judgment, it should consider
~~ using state judgment lien provisions, which may cover all real
property of the debtor.
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NOTICE OF FEDERAL LIEU
NOTICE IS HERiBY GIVEN by the United States of An*rica chat it holds a lien on
the Lands and premises described Delow situated in Che State of Washirxton,
as provided by Section )07(f) of Che Superfund Aawndaents and Reauthoriration
Act of Wj>6 (SAKA), Public Law No. 99-499. amending the Comprehensive Environmental
Response, Condensation, and Uability Act of .I960 (CEXCLA). 42 U.S.C. 19601 et
«e£., to secure che payment co the United States of ail costs and danages covered
by that Section for which Western Processing Ccopany, Inc. and Carat J. Nieuwenhuis
(and che marital coaunity ccoposed of himself and his wife) are liable to the
United Scares under Section 107(a) of CZRCU as awended. The lien for which this
instrument gives notice exists in favor of the United Scaces upon all real property
and rij^cs to «uch property which belong to said persons and are, have been, or will
be, subject co. or affected by, roo^al and remedial actions as defined by federal
law, at or near 7215 South 196th In the City of Kent, Canty of King, State of
Washington, including che following, described land:
That portion of the Southeast Quarter (S.E. 1/4) of the
Northwest Quarter (N.W. 1/4) of Section One (1), Township
Twenty-Two (22) North. Range Four (4) East, Willaoette
Meridian, lying Westerly of the Puget Sound Electric
ri#jt-of-way less than North Thirty (30) feet of Drainage
Ditch No. One (1). containing 12.9 acr«s acre or less.
This statutory lien exists and continues until che liability for such costs
and cLc^gcs (or for any decree or judgement against such persons arising out of
such liability) is satisfied or becomes unenforceable through che operation of the
statute of limitations as provided by Section 113 of Public Law 99-499.
IN WITNESS WHEREOF, che United Scaces has caused this instrunenc to be executed
through the iJJra.ted'J?tvates Environmental Protection Agency, and its-attorney, in his
official''e*pacity as Regional Counsel of che Lhiced States environmental Protection
Agency.;
»*V*
Datedit
.-r. -ID.
i j<
this £3J day of ±
N \ \ s: 5$
^^ *'
•1
•O.
^\ \ t
•'"•x •
United States Of ^Strica)
State of Washinfton )••
County of Kief )
UNITED 'STATES OF 'AHTRICA «nd
UNITED STATES EWIRQtt-EtflAL
PROTECTION AGENCY
.//v^Jjoes R. Moor*
7- Regional Counsel
' £P/ . iUion 10
cherc appeared personally
Co ** Co be eh* Regional
Agency, Region 10. and he
ic he signed che foregoing NOTICE OF FEDtttAL U»l in a representative
free and voluntary ace and deed of che Uniced Scaces and ics «aid
.._____, ,,,_.u»es and purposes therein aencioned. GIVEN under ay hand and official
:i./ i .
My Coroissior! EjC5ires:<
Tndiorcne'STate
of Washington residing at Seattle
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»
\ UNIT! 0 STATf f CNVmONMCNTAL MWTf CTION AOfNCY
OSWIX Dirtctlv* 9835.5
OCT 5 .587
mHORJUIDOU
SOSJECT: tPA Xnteria Guidance on Xndeanification of Superfund
ReapQjiae ActirorvCont rector a Onder Section 119 of SARA
/ - . / ^^^
/X-v- )/'&*'
PROM: J. W>ff^ton 'Porter, Aaaistant Adainiatratot
Solid "}*%• •£* Caergency Reaponae
Mo
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2 OSWER Directive $135.5
of Engine*** at fPA-lead sites)3. The purport of this •••o is to
describe he* E»A may provide indemnification to RACs using
Section lit authority.
lackgroond
Response action contractors have traditionally relied on
commercial liability insurance or indemnification to sufficiently
offset their potential liability risks fro* participation in the
Superfund program. During the Superfund reautborisation debate,
the RAC community identified several factors which, tbe RACs
contended, impaired their ability to adequately offset risk.
These factors included:
o Potential subjection to strict, joint and several liability
under Superfund and under some state laws; and
o Inability of the commercial liability insurance market to
provide liability insurance coverage to RACs involved in the-
Superfund cleanup program that is both adequate aad
affordable.
Prior to the reauthorization of CERCLA, IVA provided
indemnification to RACs working for EPA through contract
authority implementing CERCLA. EPA took this step in -order to
retain qualified contractors, given the absence of pollution
liability insurance coverage. Onder this old indemnification
agreement, the Federal government indemnified RACs above an
initial $1 million for third party liabilities and defense
expenses. The indemnification agreement was void in cases of
gross negligence or willful misconduct.
3 SARA Section llf(e)(2) defines "response action
contractor* as:
a. any person who enters into a response action contract (which
is defined in part as any written contract or agreement to
provid* «ny CttCLA removal or remedial action at a facility
listed oa tbe »»L, or to provide any ancillary services
related to «ucb response) with respect to any release or
threatened release of a hazardous substance or pollutant or
contaminant from a facility and is carrying out such a
contract» and
b. any person retained or hired by the person who enters into a
response action contract, to provide any services, related to
a response' action? and
c. any person, public or nonprofit private entity, conducting a
field demonstration pursuant to fARA Section 311tb) (i.e.,
the "Alternative or Innovative Treatment Technology Research
and Demonstration Program").
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OSWIR Directive 1135.5
SeetfjB 119 of SARA responds to many of the concern* of the
RAC commustfty by:
o Establishing a standard of negligence for action* brought
against RAC* under Federal law;*
o Authorising ttk to provide to RACs, on • discretionary
basic, limited indemnification against pollution liability
arising fro* RAC negligence; and
o Providing eipress statutory authority for indemnification
and a funding mechanism.
The approach takan in Section 119 provisions is based on the
following key points:
o A Federal liability standard of negligence, combined with
RAC indemnification which is subject to limits and
deductible!, provides adequate performance incentives for
RACa working in the Superfund program*
o RAC indemnification provides an adequate substitute for
insurance;
o Discretionary indemnification is an interim vehicle that
will keep the Superfund program operative until the
insurance industry returns to the RAC liability insurance
market; and
o Discretionary indemnification doe« not create a Federally
intrusive insurance program that Interferes with private
sector efforts to develop XAC liability insurance coverage.
4 The Federal standard of negligence under Section 119
applies only to Federal law. It dots not preclude states from
applying their own statutory law or common law liability
standards, which may in some case* b* strict liability. Response
action contractor* sued in Federal court* are under a "ctandard
of care' defined by Federal law a* negligence, lowevet, if an
action is brought under state law, a strict liability standard
could apply.
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SPA Task PetoM o» RAC Indemnification
OSKIR Directive 9IJS.s
To avoid program delays, a Task Pore* was established to
determine how-«PA win provide indemnification to RACa working in
tht Suptrfund program. Tht Task Peret ia co»po«td of
representatives from IPA'S Office of Waste Programs Enforcement
(OWPE), Office of Emergency and Remedial Response (OERR), Off let
of Solid Waste (CSV), Office of Central Counsel (OCC), Office of
th« comptroller
o Develop Section 119 RAC final indemnification guidelines and
regulations;
o Ensure a forum for adequate public comment on RAC
indemnification; and
o Promote private sector provision of RAC pollution liability
insurance in the future by providing technical assistance to
the insurance industry.
The Task Peres will attempt to reach these goals by
producing several work products tbat: (1) carefully analyse and
estimate the potential pollution liability risk to which RACs are
eiposed by participating in the tuperfund cleanup program; (2)
determine what the final EPA indemnification terms and conditions
will-bet (3) prepare the Agency for implementing an interim RAC
indemnification program) and (4) develop the Section 119
regulations.
Interim SPA Indemnification Ouidelimes
SARA Section lit now provides tPA's sole authority to eitend
indemnification to RACa working ia the Superfund program.
Delegation of authority from the President authorising SPA to use
Section lit provisions was issued through Siecutive order 125SO
on January 2f, lt!7. The delegation authorises tPA to use
Section lit indemnification authority from the date of enactment
(DOt) of SARA. Consequently, IPA Bust adhere to Section 119
provisions fro* SAXA DOS (October 17, ItIC).
Section 119(0(7) requires tbat tPA promulgate regulations
for carrying out indemnification provisions and, prior to
promulgation of the regulations, develop guidelines to carry out
use of Section 119 indemnification authority. Secause of the
complexity of the issues, tPA is proceeding deliberately in
establishing these guidelines and is seeking substantial public
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5 OSVER Directive 9I3S.S
coaaent. ajaanwhile, EPA it providing contractors with Section
119 coveragfc OD an interia basis, using procedures outlined in
this aeaoraadua. Oltiaately, this coverage will b« aeended to
reflect guidance «nd regulations that will be developed in
conforaanee with Section 119 requireaents.
As further described in this aeaorandua, authorisation to
provide indeanification will be aade by OCWXX with concurrence
froa the Office of the Coaptroller (OC). Authorisation to
indeanify will be aade upon receipt of a recoaaendation froa the
Task Force. The OC will provide concurrence (or non-concurrence)
with recoaaendations to indeanify within seven calendar days of
receipt of a reeeaaendatien. execution of indeanity agraeaents
will be aade by appropriate Agency adainistrative offices.
Section 119(c)(4) aandates that RACs Bust Beet the following
requireaents before they can receive Federal indeanification for
potential pollution liability associated with Superfund response
action activities:
o The RAC aust Bake diligent efforts to obtain Insurance
coverage froa non-Federal sources to cover pollution
liability; and
o Zn the case of a JUC contract covering acre than one
facility, the RAC agrees to continue to make such diligent
efforts each tiae the RAC begins work under the contract at
a new facility.
Section 119(c)(4) also requires that the following
circumstances aust exist before' • RAC can receive Federal
indeanification for potential pollution liability associated with
Superfund response action activities:
o At the tiae the response action contract is entered into,
insurance is -not available* at a "fair and reasonable
price", in sufficient quantity to offset potential RAC
pollution liability riaki and
o Adequate Insurance to cover auch liability is not generally
available at the tiae the response action contract is
entered late.
IB future guidance (i.e., the guidance which is to be
published for public comment), t»A plans to include guidelines
for deteraining whether insurance is "generally available" or is
•fairly and reasonably priced". For the purpose of this intcria
guidance, EPA has determined* baaed on information currently
available, that Superfund RACs are unable to obtain reasonably
priced pollution liability insurance. Therefore, RACs are
eligible to receive indemnification under Section lit from DOC of
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6 OSWBR Dirtetivt 9135.S
SARA. However, EPA will require th*t RACs •••king Federal
indemnification aeet tht following requireaents:
o Within 30- days of signing an indemnification agreeaent with
EPA, RACs »u«t subaifto EPA (or to tht appropriate State
Contracting Officer) written documentation concerning the
efforts they have made to date to secure pollution liability
insurance coverage (e.g., a RAC could submit a written
statement from an insurance broker stating that the JUC has
attempted to aecure pollution liability coverage froa
insurance carrier* in the patt six months).
o if the RAC haa aecured pollution liability coverage, it mutt
•ubait to EPA (or to the State Contracting Officer) a copy
of the policy and declaration page; and
o Every twelve months (or aore frequently, if EPA deteraines
that there haa been a significant change in circumstances
concerning the availability of pollution liability
insurance) the RAC aust subait to EPA (or to the State
Contracting Officer) written docuaentation addressing the
additional efforts the RAC has made to secure pollution
liability insurance coverage including:
Copies of applications submitted to three known
underwriters of pollution liability insurance;
If pollution liability coverage was denied by an
underwriter, a summary of the reasons why such coverage
was denied;
A status report of any pollution liability insurance
obtained. The report would include: 1) type of
coverage; 2) preaiua charged; 3) limits of coverage; 4)
deductible levels, and any other major terms and
conditions of the insurance coverage. A copy of the
actual policy and declaration page could be provided in
lieu of a written status report;
Zf pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report on
the insurance offered (such as the "status report"
retired above), and a summary of the reasons why such
coverage was not accepted; and
A status report concerning the alternative pollution
liability risk transfer aechanisaa the RAC has pursued
other than commercial pollution liability insurance
(e.g., risk retention groups, purchasing groups,
aasociation captives).
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^ OSTCEJ Directive 9135. S
This taforaation ahould be forwerded to the appropriate EPA
official ffct State Contracting Officer). Tbia inforaation will
be reviewed by tb« Taak Focct aa needed.
Aa required undtc tt>« interia guidelines liatad above, EVA
expecta RACa to deaonatrate tht extent to which ehay nave
atteapted to aacura pollution liability ineuranct coverage. CPA
alao axpacta tbat RACa will continua to »onitor tha aarktt for
pollution liability inauranca, and continua to seek and secure
auch inauranca coverage (howtvar iiaited) from cou«ccial
inauranca carriara or through altarnativa riak tranafar
•achaniaaa (a.g.« aalf-inauranca poola).
lB<««ntfic«tion of *ACa Working for l»A
Pra-SARA indaanification taraa will apply to work parforaad
at a aita aftar tha data of anactaant (DOC) of SARA if raaponaa
work at tha aita waa initiated undar an EPA contract prior to tha
DOE Of SARA.
EPA will anttr into naw indaanification agraaaanta (Saa
Attachaant A), aubjact to Saction 119 authority, with:
o RACa who ara currantly working undar contract with IPA, for
work thay will initiata at a naw aita aftar DOB of SARA) and
o RACa racaiving naw contracts (or naw eooptrativa agraaaanta,
in tha caaa of Sita Daaonatration projects) with CPA aftar
DOE of SARA for Suparfund raaponaa action activitiaa.
RACa currantly undar contract with CPA hava baan alartad to
tha ehangaa that will ba forthcoaing to thair indaanification
acraaaanta with CPA. CPA haadquartara p«raonnal ID tba
Procuraaant and Contracts Managaaant Division of tha Offiea of
Adainistration hava b«an trainad ea tha usa of faction 119 and,
with tba aaeiatanca of tha task Forca, will adaiaiatar Saction
119 indemnification intaria procaduras for CPA contractors.
ftaquaata for indaaaification of CPA contractors will ba subject
to tba approval of OSNC1 and concurrence of OC.
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I OSWEK Dirtctivt »835.5
Indemnification of EACs Working for States
Sectiefe 11X0(2) authorixes th« indemnification of RACa
working for States or political subdivisions of States (purauant
to a Section 104(d)(l) agreement with EPA) for ntw work initiated
at Suptrfund sites from DOE of SARA. EPA may indemnify RACa
performing reaponae action activitiaa for a Statt at a State-lead
Superfund aite after OOE of SARA. EPA will offer indemnification
to RACa working for a State only if:
o The RAC'a reaponae action ia part of new aite work initiated
at a Superfund aite after DOE of SARA and it ia related
directly to cleanup of the aitei
o RACa working for a State muat meet all of the circuaatancea
and iaauance requirementa aet forth by Section 119(c)(4), aa
liated above; and
o RACa working for a State must meet all of EPA'a interim
guideline requirements, aa liated previoualy on pagea five
and six.
EPA will not offer indemnification to RACa for aite work they
performedTTor States prior to DOE of SARA. Any EPA
indemnification provided to * RAC(a) working for a State(a) will
be aubject to limits, deductibles, and other reatrictiona aa
required by Section 119(c)(5).
Until EPA iaauea final guidance and regulations, »11
requests for EPA indemnification of a. RAC working for a State at
a Superfund aite will be processed via the Task Pore*. Statea
ahould submit requests to both the Indemnification Tack Pore*/
c/o Director, Office of Emergency and Remedial Response (OERR),
and to the Regional Superfund Iranch Chief. Requests should
identify the Regional Site Coordinator and State contact, and
ahould include pertinent information regarding Section ll*(c)(4).
requirements as discussed previoualy. Xf the Tack Force
recommend* approval of the indemnification request, the Office of
the Comptroller will provide concurrence (or non-concurrence)
within seven calendar days of receipt of the recommendation.
final approval for IPX indemnification of a State MAC will be
mad* by thm Director of the Office of Emergency and Remedial
Response. Xf approval is authorised, then the Grants
Administration Division will implement the approval through a
special condition to be included in the State/EPA cooperative
agreement (See Attachment A).
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9 OSVER Directive 9135.5
Indemniflotion of RACs working for Other Federal Agencies
Section 119(e)(2) Authorises tht indemnification of RACa
working for oj:her Federal agencies at Superfund sites from DOC of
SARA. A delegation of Authority from the President authorising
other Federal Agencies to use Section 119 provisions was issued
on January 2«, 1917. Other Federal agencies follow all EVA
guidance and regulations with respect to Section 119. Other
Federal agencies that use Section 119 authority mist provide
their own source of funds (e.g.,their agency appropriation) to
pay all indemnification costs (e.g., claims and legal defense
easts).
At some Superfund sites, the O.S. Army Corps of Engineers
manages response actions pursuant to an iateragency agreement
with EPA. For Section 119 indemnification purposes, any RAC
working as a contractor for the Corps of Engineers at such sites
(and where, for remedial actions, the site is listed on the HPt)
is considered to be working for EPA rather than for some 'other
Federal agency". EPA will offer the same indemnification to
contractors procured by the Corps of Engineers that it offers to
contractors procured by EPA.
Indeanifieatioa of RACs Working for F1F«
Onder Section 119(c)(2) authority, EPA can, in.limited
circumstances and subject to strict finanetal'tests, indemnify
RACa performing response action activities for PRPs subject to a
consent order or decree at Superfund sites after DOE of SARA.
EPA will use its authority to indemnify HACs working for PRPs
only in estremely limited eases, e.g., where EPA indemnification
of the PRP RAC is the solution of last resort. EPA will offer
indemnification to RACs working for PRPs only if;
o The PRPs art unable to provide adequate indemnification, and
as a result, are unable to obtain the services of a
qualified lACt
o The RAC «s response action is pact of new site work initiated
at a Superfund site after DOE of SARA, and the action is
related specifically to the cleanup of the sitej
o RACs working for PRPs meet all of the issuance requirements
sot forth by flection 119(c)(4);
o The circumstances set forth in Section 119(c)U)'exist; and
o RACs working for PRPs meet all of IPA's interim guideline
requirements.
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10 OSWER Directive §135.5
•PA «f£l net offer indemnification to RACs foe work
performed Ibr PRTs prior to DOE of SARA, nor for any rut RAC
reaponse awivity that is not related specifically to a remedy at
• Superfuno* cite.
Further, Action llf(e)(5)(C) of SAILA requires that, before
EPA can enter into an indemnification agreement with a RAC
performing work under contract with a PRP(s) at a Superfund
eite(s), IPA must determine the amount which the PRP(s) ia able
to indemnify the RAC. In making auch a determination, EPA aball
take into account the total net assets and resource* of tbe
PRP(a) with respect to the facility at the ti»e of such
determinations. If EPA determines that the amount which the
PRP(a) is able to indemnify the RAC ia inadequate, then EPA may
enter into an indemnification agreement with tbe RAC to meet tbe
anticipated shortfall. EPA will consider the combined
capabilities of all the PRPs at a site to determine whether, aa a
group, they are capable of providing adequate coverage. In
general, the Agency expects to use this provision only in cases
where PRPs are small firma with few aasets. Therefore, legions
should not make requests for Pederal indemnification where PRPa
are large corporations with substantial Assets or where tbe PIPs,
as a group, have substantial aaaets. AS • result, EPA does not
expect requests for Pederal indemnification .to become an integral
part of settlement negotiations.
EPA plans to provide additional guidance la the future
concerning tbe determination* that need to be made as a
prerequisite to indemnifying RACa working tor PRP* (such as
defining "net assets and resources" of the PRPs, and whether the
PRPs *re "unable to provide adequate indemnification*). Ontil
EPA distributes this guidance, all such determinations will be
made by the Task Porce.
EPA indemnification-of A BAG working for a PRP is A measure
of lAst resort. Xf EPA dees provide iadem&ifiCAtion in these
esses, the consent decree (or order) should specify terms And
conditions, using the model EPA indemnifieetion Agreement for
RACs working for PIPs shown in Attachment A. Xf IPA eaters into
sn indemnification agreement with A RAC working for A PRKa), tbe
RAC mustt
o RetAin finAncial responsibility for A deductible Amount if
commercial pollution liability insurance is unavailable or
unreasoaAbly priced) And
o Exhaust All administrative, judicial, And common law claim*
for indemnification against all PRPs participating in the
cleanup of the facility before IPA can pay a claim.
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11 OSWER Directive 9135.5
If a BAC ha« received partial indemnification from a PRP(e>,
EPA aay aUfi provide indemnif ieation in eaatt where tht VHP
indemnification ia dttmtd inaufficient, and in miied funding
eaaae. EPA may provide indemnification abov« the PRP
indemnification. The content decree ahould apecify the ttrma and
eonditiona uaing the model EPA indemnification agreemeat ahown in
Attachment A.
All requeata for BPA indemnification of a RAC working for a
PRKe) at a iuperfund aite ahould be aubmitted to both the
Indemnification Taak Force, c/o Director, Office of Maate
Programa Enforcement (OWPE), and to the Regional Superfund
Enforcement Branch Chief. Pleaae identify the Regional Site
Coordinator and the Regional Counael'a lite tepreaentative.
Include pertinent information regarding the number of FRPa,
financial profile of the PRPe, type of work to be performed,
etc., auch that the Taak Force can make determinationa per
Section 119(c)<4) and Section ll«(c)<5).
Open determining that a RAC meeta all of the circumatancea
and requirementa aet forth in Section 119 and in EPA interim
guidelinea, the Taak Porce will evaluate an amount to which the
PRP(a) ia able to indemnify the RAC and an amount to which EPA
will indemnify the RAC in etceaa of the ?RP Indemnification
amount. Any EPA indemnification provided to a RAC(a) working for
PRP(a) will be aubject to limits, deduetiblea, and other
limitationa aa required by Section UffcHS). Xf the Taak Force
recommenda approval of the indemnification requeat, the Office of
the Comptroller will provide concurrence (or non-concurrence)
within aeven calendar daya of receipt of the recommendation.
Final approval for EPA indemnification of a PRP RAC will be made
by the Director of OWE.
RACJ Workine for Fits Without IFA Indemnification
Thpae RACa working for PRPa at Superfund aitea who do not
receive indemnification from EPA mty either receive no
indemnification at til, or may receive indemnification from PRPa
only. For tbomm RACa working with no indemnification, PUPa
ahould demenatrate that the RAC it qualified to perform the work
adequately, baa aufficient financial capability to complete the
projected work, and demonatratea financial reeponaibility for
potential third party liability coat*. Thia can be enaured
through a combination of adequate competition in the contract
procurement proceaa and a demonatration of financial
reaponaibllity. Such a demonatration can conaiat of. purchaae of
performance bonde, lettera of credit, inaurance, maintenance of a
truat fund, etc. A conaent decree ahould apecify the
aforementioned.
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12 OSWER Directive 9835.S
Pot tbfsa RACs receiving, indemnification from PUPs only (and
where tPA eVMJ tht indemnification to be adequate), RACS should
be qualified^ to perform work adequately. This can bt ensured
through a combination of adequate competition in the contract
procurement process, and through * demonstration of financial
responsibility. The PRP indemnification is sufficient
demonstration of financial responsibility; therefore/ performance
bonds, letters of credit, etc.* are not required. The concent
decree should specify the aforementioned as well as the
indemnification terms and conditions.
Publicly Owned Treatment Worm
Section 119
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13 OSWER OirtCCivt 9835.5
Please dirtct All questions and couents to Robert Mason at
FTS 382-4015 oc Tom Gillis at PTS 312-4524
Attachments
A. Mod«l lnd««nifieation
I. CZXCLA (a* a»«ndtd) Stetion 119
cc: AdBinictrator
Deputy AdBinistratoc
Central Coun»«l
Regional Grant* Office, Region* I-X
Regional Financial Management Office, Regioni I-X
Regional Superfund Branch Chief*, Regions I-X
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Attachment A
MODEL INDEMNIFICATION AGREEMENTS
-------
Thii attmcnmant contains modtl EPA indamnif ication
agraamanta £ mt ot« by EPA, Stataa, and PRPa when RACa aaak
twi
teom EPA. Any dtviatioh fro« th« nodal languagt
must ba approved by tht EPA Indamnif ieation Taak Porea. Pour
modtl a ara actaAad:
I. Modal CPA/RAC Indamnif ieation Agraaaant
II. Modal Stata Cooparativa Agraamant Indamnif ieation Spacial
Condition
III. Modal EPA/RAC Indamnif ieation Agraaaant for RACa undar
Contract with PRPa
IV. Modal EPA/ SITES Program Tachnology Vandor Indamnif Ieation
Agraamant
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MODEL EPA/RAC INDEMNIFICATION AGREEMENT
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H. Insurance — Liability to Third Persons —
Commercial Organizations
(EPAAR 1552".228-70> UP* 198O (with deviation)
(t) This Cleuae H will b« modified by the
mutual agreement of tht parties hereto within 110 days of th*
EPA'* promulgation of final guidelines for carrying out the
provision* of Section 119 of the Comprehenaivt Environmental
Reaponse, Compenaation, and Liability Act of 1980, aa amended
(CEKCLA).
(b) Tht Contractor ahall procure and maintain such
insurance aa is required by law or regulation, including that
required by FA* Part 28, in effect as of the date of eiecution of
thia contract, and any such inaurance aa the Contracting officer
may, from time to time, require with reapect to performance of
thia contract.
(c) At a minimum, the Contractor shall procure and maintain
the following typea of inaurance.
(1) workmen'a compensation and occupational diaeaae
inaurance in anounta to aatiafy State law»
(2) Employer'a liability inaurance in the minimum amount of
$100,000 per occurrence;
(3) Cowprehenaive general liability inaurance for bodily
injury, death or loaa of or damage to property of third persona
in the minimum amount of $1,000,000 per occurrence;
(4) When veaaela are uaed in the performance of the
contract, veaael collision liability and indemnity liability
inaurance in such amounts as the Contracting Officer may require
or approve: provided, that the Contractor may, with the approval
of the Contracting Officer, maintain a ••If-insurance program.
All insurance required pursuant to the provisions of this
paragraph shall be in such form and for such periods of time aa
the Contracting Officer may,.from time to time, require or
approve and with insurers approved by the Contracting officer.
(d) The Contractor further agrees that it will make
diligent efforts throughout contract performance in accordance
with IFA guidelines to obtain adequate pollution liability
insurance.
(e) The Contractor agrees, to the eitent and in the manner
required by the contracting Officer, to submit for the approval
of the Contracting Officer all -insurance maintained by the
Contractor in connection with the performance of this contract
and for which the contractor seeks reimbursement hereunder. The
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Contractor's sobmission shall include documentation demonstrating
its diligent efforts to obtain pollution liability insurance.
(f) ?ht Contractor shall bt reimbursed, for the portion
allocabl* to this contract, tht reasonable cost of insuranct
(including reserves for self-insurance) as required or approved
pursuant to the provisions of this contract clause.
fg)(l) Pursuant to Section 119 of CCRCLA, the EPA will hold
harmless and indemnify the Contractor against any liability
(including the expenses of litigation or settlement) for
negligence arising out of the Contractor's performance under thii
contract in carrying out response action activities. Such
indemnification shall apply only to liability not compensated by
insurance or otherwise and shall apply only to liability which
results froe a release of any hazardous substance or pollutant or
contaminant if such release arises out of the response action
activities of this contract. Further, any liability within the
deductible amounts of the Contractor's insurance will net be
covered under this contract clause H .
(2) For purposes of this clause (g), if the Contracting
Officer has determined that the insurance identified in paragraph
(d) is noc available at a reasonable cost, the Government will
hold harmless and indemnify the Contractor for liability to the
extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined in (g) (including the expenses of litigation or
settlement) that were caused by -the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith, further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other, basis
of liability other than negligence.
(h) The Government may discharge its liability under this
contract clause by making payment* directly to the Contractor or
directly to parties to whom the contractor may be liable.
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3
Contractor vffieh is covtrtd by this contract claust, and shall
tntitlt tht Govtrnmtnt, at its tltetion, to control, or assist in
tht stttltwtnt o~r dtftnst of. any such claim or action. Tht
Govtrnmtnt will indemnify tht Contractor with rtsptct to his
obligation to subcontractors undtr such subcontract provisions.
Tht Govtrnmtnt may dischargt its obligations undtr this paragraph
by staking paymtnta dirtctly to subcontractors or to parties to
who* tht subcontractors may bt liablt.
(j) If insuranct covtragt rtquirtd or approvtd by tht
Contracting Offictr is rtductd without tht Contracting Offictr's
approval, tht liability of tht Govtrnatnt undtr this contract
claust will not bt incrtastd by rtason of such rtduetion.
(k) Tht Contractor shall:
(1) Promptly notify tht Contracting Offictr of any claia or
action against tht Contractor or any subcontractor which
rtasonably aay bt txptcttd to involvt indtsmification undtr this
contract claust;
(2) Furnish tvidtnct or proof of any claim covtrtd by this
contract claust in tht manntr and fora rtquirtd by tht
Govtrnatnt; and
(3) laatdiattly furnish tht Covtrnatnt copits of all
ptrtintnt paptrs rtctivtd by tht Contractor. Tht Govtrnatnt may
dirtct, control, or assist tht stttltatnt or dtftnst of any such
claim or action. Tht Contractor shall coaply with tht
Govtrnatnt's dirtetions, and txtcutt any authorizations rtquirtd
in rtgard to such stttltatnt or dtftnst.
(1) Rtimburstatnt for any liabilitits undtr this contract
claust will not txcttd appropriations availablt froa CtlCLA's
Hazardous Substanct Suptrfund (txctpt to tht txttnt that Congrtss
aay aakt appropriations to specifically fund any dtficitncits) at
tht tiat .such liabilities are rtprtstnttd by final judgatnts or
by stttltatnt* approvtd in writing by tht Govtrnatnt.
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xz
MODEL STATE COOPERATIVE AGREEMENT
INDEMNIFICATION SPECIAL CONDITION
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Attaehmtnt
(1) Pursuant to Section 119 of CERCLA, tht EPA will hold
harnltss and inStmnify tht Contractor against any third party
liability (including tht txptnsts of litigation or stttlemtnt)
for ntgligtnct arising out of tht Contractor's performance undtr
this contract in carrying out rtsponst action activities. Such
indemnification shall apply only to liability not comptnsattd by
insuranct or othtrwist and shall apply only to liability which
rtsults from a rtltast of any hazardous substanct or pollutant or
contaminant if such rtltast arists out of tht rtsponst action
activitits of this contract. Purthtr, any liability within tht
dtduetiblt amounts of tht Contractor's insuranct rtquired by this
contract will not bt covtrtd by this claust. This Claust will bt
•odifitd by tht mutual agrttetnt of tht partits htrtto within 180
days of tht CPA's promulgation of final guidtlints for carrying
out tht provisions of Stction 119 (CERCLA).
(A) Tht Contractor shall submit to the Statt Contracting
Offictr within 30 days of award a writttn stattmtnt
from an insuranct broktr stating that tht Contractor
has atttnpttd to stcurt pollution liability covtragt
from insuranct carritrs in tht past sii months*
(B) If tht Contractor has stcurod pollution liability
covtragt, it must submit a copy of tht policy and
dtclaration pagt to tht Statt Contracting Offictr; and
(C) Evtry twtlvt months, or as dirtcttd by tbt EPA, tht
Contractor shall submit to tht Ctatt Contracting
Offictr writttn documentation of tht additional tfforts
•adt by tht contractor to stcurt pollution liability
insuranct covtragt, including:
o Copits of applications to thrtt known undtrwrittrs
of pollution liability insurance;
o A status rtport of any pollution liability
insuranct obtained, to includt type of covtragt,
premium chargtd, limits of eovtragt, dtductiblts
•ad major ttrms and condition* of eovtragt (e.g.,
a copy of tbt actual dtclaration pagt could bt
provided in lieu of a status report);
o If pollution liability coverage was offered by an
underwriter, but not accepted by the KAC/ a report
on the insurance offered (such as the "status
report" required above), and a summary of tbt
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was dtnitd; and
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EPA INDEMNIFICATION
EPA will providf indemnification pursuant to Section 119 of
CERCLA, »» aaended, to contractors carrying out response actions
under this agreement provided that tht Statt certifies to EPA
that:
1. The contracts awarded under this agreement art defined in
section 119(t) of crRCLA, as a»«ndtd;
2. The contracts awarded under this agreement include the
following clause that exclusively governs EPA
indemnification:
(see attached clause)
3. At the end of each calendar year and at the end of each
project period, all statenenta and materials related to
pollution liability insurance submitted by the Contractors
to the State Contracting Officer will be transferred to EFA.
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e A status report on what alternative pollution
liability risk transfer mechanisms the contractor
has pursued othtr than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(2) For purposes of this clause, the EPA will hold harmless
and indemnify the contractor for liability described herein to
the extent such liability exceeds $100,000.00.
(3) The Contractor shall not be reimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
clause by making payments directly to the Contractor or directly
to parties to whom the Contractor may be liable.
(5) With prior written approval of the State Contracting
Officer, the Contractor may include in any subcontract under this
contract the same provisions in this clause whereby the
Contractor shall indemnify the subcontractor. Such, a subcontract
shall provide the same rights sod duties and the same provisions
for notice, furnishings of evidence or proof, and the like,
between the Contractor and the subcontractor as are established
by this clause. Similar indemnification may be provided for
subcontractors at any time upon the same terms and conditions.
Subcontracts providing for indemnification within the purview of
this contract clause shall provide for prompt notification to tfce
Contractor which is covered by this contract clause, and shall
entitle the It*, at its election, to control, or assist in the
settlement or defense of any such claim or action. The IFA will
indemnify the; Contractor with respect to his obligation to
subcontractors under such subcontract provisions. The EPA may
discharge its obligations under this paragraph by making payments
directly to subcontractors or to parties to whom the
subcontractors may be liable.
(I) If insurance coverage required or approved by the Stac*
Contracting Officer is reduced without the State Contracting
Officer's approval, the liability of the EPA under this contract
clause will not be increased by reason of such reduction.
(7) The Contractor shall:
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o Promptly notify the Assistant Administrator,
OSWER, EPA of any claim or action against the
Contractor or. any subcontractor which reasonably
nay bt expected to involve indemnification under
this contract clause.
o Purnish evidence or proof of any claim covered by
this contract clause in the manner and form
required by the EPA.
o Immediately furnish the EPA copies of all
pertinent papers received by the Contractor. The
EPA may direct, control, or assist the settlement
or defense of any such claim or action. The
Contractor shall comply with the EPA'a directions,
and execute any authorizations required in regard
to such settlement or defense.
o Submit any disagreements concerning EPA
indemnification to the Assistant Administrator,
OSWCR, EPA for resolution. Decision by the
Assistant Administrator will constitute final
Agency action.
(8) Reimbursement for any liabilities under this contract
clause is available exclusively from the EPA and will not exceed
appropriations available from CERCLA's Hazardous Substance
Superfund (except to the extent that Congress may make
appropriations to specifically fund any deficiencies) at the time
such liabilities are represented by final judgement or by
settlements approved in writing by the EPA.
(9) Nothing in this clause shall be construed as an
indemnification agreement between the State and the Contractor.
(10) Nothing in this contract shall be construed to create,
either expressly or by implication, any contractual relationship
between EPA and the Contractor except as specifically provided in
this clause. IPA is not authorised to represent or act on behalf
of the State la any manner relating to this contract and has no
responsibility with regard to the mutual obligations of the State
and the Contractor as provided herein.
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Ill
MODEL EPA/RAC INDEMNIFICATION AGREEMENT
fOR RACS UNDER CONTRACT WITH PRPS
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MODEL CLAUSES FOR PRP CONTRACTS
Sec. _ Pollution Liability Insurance and Contractor
Indemnification
A. Pollution Liability Insurance
(1) The Contractor shall obtain such pollution liability
insurance (hereinafter insurance) as the EPA determines is
available at a fair and reasonable price at the time of contract
award. The cost of such insurance is an allowable contract cost.
(2) The Contractor shall report to EPA on its efforts to
obtain pollution liability insurance.
(A) Within 30 days of signing this agreement, the
Contractor shall subnit to the EPA a written statement
from an insurance broker stating that the Contractor
has attempted to secure pollution liability coverage
from insurance carriers in the past sii months;
(B) Zf the Contractor has secured pollution liability
coverage, it must subnit a copy of the policy and
declaration page to EPA; and
(C) Every twelve months, or as directed by the EPA, the
Contractor .shall submit to the EPA.written
documentation of the additional efforts made by the
contractor to secure pollution liability insurance
coverage including:
o Copies of applications to three known underwriters
of pollution liability insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deduetibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o Zf pollution liability coverage was offered by an
underwriter, but not accepted by the RAC, a report
on the insurance offered (such as the "status
report" required above), and a summary of, the
reasons why such coverage was not accepted;
o If pollution liability coverage was rejected by
the underwriter, a summary of the reasons why such
coverage was denied; and
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o A statue report on whit1 alternative pollution
lability risk transfer mechanisms the contractor
h-as puriued other than commercial pollution
liability insurance (e.g., captives, letters of
credit, group purchasing of insurance, etc.).
(3) If, during the period of this contract, EPA determines
that insurance or additional insurance is available, the
contractor shall obtain such insurance.
8. PRP Indemnification
[The following are minimum clauses. PtPs may include
additional, non-conflicting terms.]
(1) The PRP* will hold harmless and indemnify the Contractor
against any third party liability (including the eipense of
litigation or settlement) for negligence arising out of the
Contractor's performance of this contract in carrying out
response action activities. Such indemnification shall apply
only to liability which results from a release of a hazardous
substance, pollutant, or contaminant if such release arises out
of the response action activities in this contract.
Indemnification under this paragraph will apply only to liability
not compensated by insurance, not within the deductible amounts
of the Contractor's insurance in paragraph A, above, nor within
the deductible in paragraph D, below. Indemnification provided
under this paragraph shall not eiceed $ (amount
determined by EPA). "
(2) Any liability subject to indemnification shall be
presented first under this paragraph.
(3) The PRPs are individually and collectively responsible
for the indemnification under this paragraph, unless otherwise
specifically provided within.
(4) If the PKPs fail to satisfy the indemnification claim
within 10 asys of its presentation, the Contractor will notify
the tfA of such failure.
C. EPA Indemnification
(1) Pursuant to Section 119 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1910,
as amended (CEKCLA), the EPA will bold harmless and indemnify the
Contractor against any third party liability (including the
expenses of litigation or settlement) for negligence arising out
of the Contractor's performance under this contract in carrying
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out responaa Iction activities. Such indemnification shall apply
only to liability not compensated by insurance, indemnification
provided in accordance with ^paragraph B, above, or otherwise and
shall apply only to liability which reaulta from a release of any
hazardous substance or pollutant or contaminant if such rtltast
arists out of tht response action activities of this contract.
Further, any liability within the deductible amounts of the
Contractor's Insurance in paragraph A, above, or the deductible
in paragraph D, below, will not be covered by this paragraph.
(2) This paragraph will be Modified by the mutual agreement
of the parties hereto within 180 days of the EPA's promulgation
of final guidelines for carrying out the provisions of
Section 119 of CERCLA.
(3) The Contractor shall not be rtimbursed for liabilities
as defined herein (including the expenses of litigation or
settlement) that were caused by the conduct of the Contractor
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Contractor shall not be indemnified for
liability arising under strict tore liability, or any other basis
of liability other than negligence.
(4) The EPA may discharge its liability under this contract
paragraph by making payments directly to the Contractor or
directly to parties to whom the Contractor may be liable.
(5) With prior written approval of the EVA, the Contractor
may include in any subcontract under this contract the same
provisions in this clause whereby the Contractor shall indemnify
the subcontractor. Such a subcontract shall provide the same
rights and duties and the same provisions for notice, furnishings
of evidence or proof, and the like, between the Contractor and
the subcontractor as are established by this paragraph. Similar
indemnification «ay be provided for subcontractors at any time
upon the same terms and conditions. Subcontracts providing for
indemnification within the purview of this paragraph shall
provide for prompt notification to the Contractor which is
covered by this paragraph, and shall entitle the EVA, «t its
election, to control, or assist in the settlement or defense of
any such claim or action. The EPA will indemnify the Contractor
with respect to his obligation to subcontractors under such
subcontract provisions. The EPA Bay discharge its obligations
under this paragraph by malting payments directly to
subcontractors or to parties to whoa the subcontractors may be
liable.
(6) zf insurance coverage required in paragraph A, above,
is reduced without the EPA's approval, the liability of the EPA
-------
undtr thia paragraph will not ba ineraaatd by raason of such
rtduction.
(7) Tht Contractor ahall:
o Promptly notify tha Aaaiatant Adminiatrator,
OSHER, EPA of any claim or action againat tha
Contractor or any aubcontractor which raaaonably
•ay ba axpactad to involva indemnification undar
thia paragraph.
o Furnish avidanca or proof of any claim covartd by
thia paragraph in tha mannar and form raquirad by
tha EPA.
o Immadiataly furniah tha EPA copiaa of all
partinant papara racaivad by tha Contractor. Tha
EPA may diract, control, or aaaiat tha aattlamant
or dafanaa of any auch claim or action. Tha
Contractor ahall comply with tha EPA'a diractiona,
and axacuta any authorization raquirad in ragard
to auch aattlamant or dafanaa.
o Submit any diaagraamanta concarning EPA
indamnification to tha Aaaiatant Administrator,
OSWER, EPA for raaolution. Daciaion by tha
Aaaiatant Administrator will conatituta final
Agancy action.
(8) Tha Contractor may praaant a claim for indamnification
undar thia paragraph only aftar compliance with tha proviaiona in
paragrapha B, abova, and C, balow.
(9) Zf tha PRPa fail to indamnify tha Contractor in tha
amount providad in paragraph B, abova, no indamnification for
that amount will ba paid undar thia paragraph until tha
Contractor damonatrataa to EPA'a aatiafaction that it haa
axhauatad all adminiatrativa and judicial claima for
indamnification undar paragraph B, abova, and any common law
claima for indamnification that it haa againat tba PRPa.
Evidanea of aihauation of claima may includa a judicial ordar
diamiaaing tba Contractor'a claima, documantation of tha
Contractor'a unauccaaaful afforta to anforea a judgamant againat
tha PRPa, or documantation of tha Contractor'a unauccaaaful
claims in a bankruptcy procaading involving tha PRPa.
(10) Raimburaamant for any liabilitiaa undar thia paragraph
will not axeaad appropriations available from CERCLA's Hazardous
Subatanca Suporfund (axcapt to tha aitant that Congraaa may maka
approprUtionr to apacifically fund any daficianciaa) at tha tima
auch liabilitiaa ara rapraaantad by final judgamant or by
aattlamanta approvad in writing by tha EPA.
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(11) Nothing in this contract shall bt construed to create,
• ithtr expressl? or by implication, any contractual relationship
bttwttn EPA and the Contractor eicept as specifically provided in
this section. EPA it not authorized to represent or act on
behalf of the (PRPs) in any Manner relating to this contract and
has no responsibility with regard to the mutual obligations of
the (PRPs) and the Contractor as provided herein.
D. Contractor Deductible
The Contractor shall pay the first $100*000.00 of any
liability subject to indemnification under this contract h>««?re
seeking indemnification under paragraphs B and C, above.
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IV
MODEL EPA/ SITES PROGRAM TECHNOLOGY VENDOR
INDEMNIFICATION AGREEMENT
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EPA Indemnification
(1) Pursuant to Section 119 of CERCLA, the EPA will hold
harmless and indemnify the Recipient against any liability
(including tht expenses of litigation oc settlement) for
negligence arising out of the Recipient's performance under this
cooperative agreement in carrying out response action activities
through the Superfund Innovative Technology Evaluation program
under Section 311(b) of CERCLA. Such indemnification shall apply
only to liability not compensated by insurance or otherwise and
shall apply only to liability which results from a release of any
hazardous substance or pollutant or contaminant if such release
arises out of the response action activities of this cooperative
agreement. Further, any liability within the deductible amounts
of the Recipient's insurance will not be covered under this
clause. If the recipient has secured pollution liability
coverage, it must submit a copy of the policy and the declaration
page to EPA.
(2) Every twelve months, or as directed by the EPA, the
Recipient shall submit to the Contracting Officer written
documentation of the additional efforts made by the recipient to
secure pollution liability insurance coverage, including:
o Copies of applications to three known underwriters
of pollution liability.insurance;
o A status report of any pollution liability
insurance obtained, to include type of coverage,
premium charged, limits of coverage, deductibles
and major terms and conditions of coverage (e.g.,
a copy of the actual declaration page could be
provided in lieu of a status report);
o It pollution liability coverage was rejected by
the underwriterf a summary of the reasons why such
coverage was denied; and
(3) Per purposes of this clause, the Government will hold
harmless and indemnify the Recipient for liability to the extent
such liability exceeds $100,000.00.
(4) The Recipient shall not be reimbursed for liabilities
as defined berein (including the expenses of litigation -or
settlement) that were caused by the conduct of the Recipient
(including any conduct of its directors, managers, staff,
representatives or employees) which was grossly negligent,
constituted intentional misconduct, or demonstrated a lack of
good faith. Further, the Recipient shall not be indemnified for
liability arising under strict tort liability, or any other basis
of liability other than negligence.
-------
(5) Tht Government nay discharge its liability under this
cooptrativt agrfement clause by making payments directly to the
Recipient or directly to parties to whoa the Recipient may be
liable.
(«) With prior written approval of the Contracting Officer,
the Recipient nay include in any subcontract under this
cooperative agreement the saae provisions in this clause whereby
the Recipient shall indemnify the subcontractor. Such a
subcontract shall provide the saae rights and duties and the saae
provisions for notice between the Recipient and the subcontractor
as are established by this clause. Siailar indeanification may
be provided for subcontractors at any time upon the saae teras
and conditions. Subcontracts providing for indeanification
within the purview of this cooperative agreeaent clause shall
provide for prompt notification to the Recipient which is covered
by this cooperative agreement clause, and shall entitle the
Government, at its election, to control, or assist in the
settlement or defense of any such claia or action. The
Covernaent will indemnify the Recipient with respect to his
obligation to subcontractors under such subcontract provisions.
The Government aay discharge its obligations under this paragraph
by malting payments directly to subcontractors or to parties to
whom the subcontractors may be liable.
(7) If insurance coverage required or approved by the
Contracting Officer is reduced without the Contracting Officer's
approval, the liability of the Governaent under this cooperative
agreement clause will not be increased by reason of such
reduction.
(8) The Recipient shall:
(a) Promptly notify the Assistant Adainistrator, OSWER, EPA
of any claia or action against the Recipient or any subcontractor
which reasonably Bay be expected to involve indeanification under
this cooperative agreeaent clause;
-------
Decision by €%• Assistant Administrator will constitute final
Agency action.
(9) Reimbursement for any liabilitita under this
cooperative agreement clause will not exceed appropriations
available from CERCLA's Hazardous Substance Superfund (txctpt to
th* cxttnt that Conqctss aay >akt appropriations to sptcifically
fund any daficitncits) at tht tiat such liabilities ar«
represented by final judgement or by settlements approved in
writing by the Covernaent.
(10) This Clause will be aodified by the autual agreeaent
of the parties hereto within 180 days of the EFA's promulgation
of final guidelines for carrying out the provisions of Section
119 of the Comprehensive Environmental Response* Compensation,
and Liability Act of I960, as amended (CERCLA).
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ATTACHMENT •
CERCLA (AS AMENDED)
SECTION 119
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OSWER * 9834.7-1A
FedaraJ Reyi»ter / Vol. 52. No. 218 / Thursday. November 12. 1987 / Notice* 43393
aTieii COMTACT.
For information on Registration
Standard schedules, contact, by null:
jean Frana. Registration Division (TS-
TeTQ. Office of Pesticide Program*.
Environmental Protection Agency. 401 M
SL SW_ Washington. DC 20460.
Office location and telephone number
Rm. 1114. CM *2.182: }*fl*r*on Davis
Highway. Arlington. VA. (703) SS7-0&44.
For iaformstion on public dockets.
thtir availability, and docket indices.
contact Franklin D. Rubu (7O3-SS7-4434)
of the Information Services Section, in
Rin. 242 at tht above address.
VUWPLflMNTAMY MWNMATKHC The
Registration Standards program i* EPA's
approach (o the reassessment and
reregistration of pesticides a* mandated
by Congreta in section 3(g! of (he
Federal Insecticide. Fungicide, and
Rodenticide Act (FIFRA). The pesticide
product* currency registered by EPA
contain more than 000 distinct active
ingredients. Under this program the
scientific data base underlying each
active ingredient it thoroughly reviewed.
and essential but missing scientific
studies are identified.
The reassessment may result in
requirements for submission of dau
needed to evaluate fully the safety of the
compound according to contemporary
scientific standards. The results of the
review ere reflected tit a Registration
Standard, which states the Agency s
regulatory positions regarding the
products containing an active ingredient
and the rationale for each position, as
well as requirements for submission of
additional data needed to complete the
assessment, and label warnings or other
regulatory restrictions needed to protect
health and the environment
The purpose of this notice is to inform
the public of Registration Standard*
currently under development It also
serves to provide the public with an
opportunity to submit additional data.
pertinent to theee reviews. EPA
encourages the public to provide
information relevant to the review of
individual active ingredients for which
Registration Standards are scheduled in
fy 68. The Agency is particularly
interested in receiving the following
types of information: human toxicology.
residue chemistry, product chemistry.
environmental fate, human exposure, or
ecological effects.
Registration Standards for the
pesticide* listed below will be under
development In FY 86. An asterisk after
the name indicates that the Agency is
re-reviewing the chemical based on
information submitted as a result of an
earlier Registration Standard,
Current regulations on'Registration
Standards and Special Review provide
for the establishment of a public docket
for Registration Standards under
development and Special Review
actions, the maintenance of docket
lndjce*< +*& the establishment of a
mailing list of persons wishing to receive
the docket indices oa a regular basis.
Special Review and Registration
Standard dockets contain, among other
things, material* submitted to the
Agency by parties outside of
government. Agency documents made
available to persons outside of
government, and memoranda of
meetings with persons outside of
government concerning pending Special
Review* and Registration Standard*
under development.
la accordance with i ms«dK2) of
the Registration Standard regulations
and i 154.15(0(3) of the Special Review
regulation*, the Agency has established
a mailing list for docket indices.
Separate mailing list* art maintained (or
Registration Standard* an Special
Reviews. Person* on each mailing list
will receive automatically tht docket
indices (orupdates to previous indices)
for Registration Standards or Special
Reviews. The** will b« distributed on a
monthly or quarterly basis, as required
by the regulations. Persons on each
mailing list will receive docket indices
for all open dockets. Persons will be
required to renew their requests for
inclusion on the mailing list tnnuslly.
Any person wishing to be included on
either mailing list should submit his or
her name, affiliation (if any), and
mailing address to the address given
earlier in this notice. Organizations.
groups and companies art requested not
to submit multiple requests under
different name*, but to designate *
primsry recipient »i!h the organisation.
This will reduce mailing cost! and
Agency time in administering the
mailing lists.
Persons currently on the Agency
mailing list for either Registration
Standard or Special Review indices
must resubmit requests for continued
inclusion on the mailing list it this time.
Dattd: Novtmbtr i 198*.
Dovjlii D. C*mpt,
Dtnctor. Offic» ofPmicitft frotramt.
(FR Doc. S7~tttOS Filt4 n-10-*7: *:45 «m[
Superfund Program; 0* Minimi*
Contributor Settlement*
AOCNCV; Environmental Protection
Agency.
ACTION: Notice.
•AMSMANY: The Agency is publishing
today its Interim Model CERCLA section
122t|}(4) De Minima Waste Contributor
Consent Decree and Administrative
Order on Consent This document
provide* model language for drafting dt
ffiteiimir waste contributor settlements
under section 122tg) of tht
Comprehensive Environmental
Response. Compensation, and Liability
Act of I960 f "CERCLA" or "Superfund").
as amended by the Superfund
Amendments and Raauthonxation Act
of 1MB ("SARA"). It is designed to be
used in conjunction with the Interim
Guidance on Settlements with Dt
Minima Wast* Contributors under
section 122(g) of SARA, published at U
PR 24333 fjun* X. 198T). EPA is
publishing this document in order to
provide wide public distribution of
information on this important aspect of
SARA implementation. The Agency m»y
revise the interim models based upon
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4S3M
Federal Reyiitet / Vol. 52. No. 218 / Thursday. Novtmber 12. 1987 / Notice*
experience gained in drifting de
minimi* settlements end upon public
comments received on the Interim
Guidance referenced tbov*.
Tbi* publication does not addree*
settlements with d» minima landowner!
under section 122(g|(l)(B) of SARA.
which will be covered by feparate
guidance.
WOft nUTTMtH DSPOMMATIOM COWTACT
}anice Unett. Mail Code LE-1J4S. U.S.
Environmental Protection Agency.
Office of Enforcement and Compliance
Monitoring. Waste Enforcement
Division. 401 M Street SW.. Washington.
DC 20460. (202) 3*2-3077.
Etfwart t Rah*.
Attociou Enforcement Counttlfor Wait*.
Date; October a. 1987.
Oaobcr 19.1967.
Memorandum
Subject: Interim Model CERCLA Section
122Lg)(«) D« Minima Watte
Contributor Consent Decree and
Administrative Order on Consent.
From: Edward E Reich. Associate
Enforcement Counsel for Waste. Gene
A. Luceto. Director. Office of Waste
Programs Enforcement.
To: Regional Counsels. Region* I-X.
RegionaJ Waate Management Division
Director*. Regions I-X.
/. Purpose
The purpose of this memorandum is to
provide interim model language to assist
the Regions in drafting de minima
waste contributor consent decrees and
administrative orden-on consent under
section I22(g)(4) of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1900.
as amended by the Superfund
Amendments and Reauihonzation Act
of 19M. Pub. L No. 99-199. 42 U.S.C
9622tgH<) lMCERCLA").The attached
models are designed to be used in
conjunction with the "totenm Guidance
on S«tttements with Or Minima Watte
Contributor* under section 122(g) of
SARA." which was issued on June 18.
1987. and published at 52 HI 24333 (June
30.1987). The models do not penain to
settlements with de minima landowners
under section l22(g|U)(B) of CERCLA.
42 U.S.C. 9622(g)(l)(Bj. which will b«
addressed by separate guidance.
The attached models contain the basic
legal and factual provisions necessary
for a df minimis contributor settlement
While the specific language may be
varied, consistent with the interim
guidance, to suit the facts of the ease
and the timing of the settlement, use of
the models will help the Agency to
achieve quick, standardized, and
nationally consistent de minimi's
contributor settlements without
engaging in lengthy, resource-intensive
negotiations. The models may be
revised after we have gained experience
in drifting di minima settlements and
have completed our review of public
comments received on the interim
guidance referenced above.
II Ditdoimer
This memorandum and any internal
procedures adopted for it*
implementation are intended solely as
guidance for employees of the U.S.
Environmental Protection Agency. They
do not constitute rulemaking by the
Agency and may not be relied upon to
create a right or a benefit, substantive or
procedural enforceable at law or in
equity by any person. The Agency may
take scnon at variance with this
memorandum or its internal
implementing procedures.
Attachments
Attachment 1—Interim Model Section
122(g) W) Consent Decree
United States of America. Plaintiff, v.
(Insert Nam«(s) of Defendant(s)!.
Defendants}
Civil Action No. _____
Judge
Consent Decree
(Note: If the complaint concerns
causes of action which are not resolved
by this document or names defendants
who are not signatories to this
document, the ntle should be "Partial
Consent Decree.")
Whereas, the United States of
America, on behalf of the Administrator
of the United States Environmental
Protection Agency ("Plaintiff1 or
"United States") filed a complaint on
(insert date) against (insert defendants'
name* | ("Defendants") pursuant to
[insert causes of action and relief
sought, ej.. sections 206 and 107t«) of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1880. as amended by the
Superfund Amendments and
Reauthorizetion Act of 1960. Pub. L 99-
499. 42 U.S.C. 9606 and 9607(a)
("CERCLA") and Section 7003 of
Resource Conservation and Recovery
Act. as amended ("RCRA"). 42 OS.C.
•6073. seeking iniunctivt relief regarding
the cleanup of the (insert aite name]
("Site") and recovery of coats incurred
and to be incurred in responding to the
release or threat of release of hazardous
substances at or in connection with the
Site):
Whereat, the United States has
incurred and continue* to incur response
costs in responding to the release or
threat of release of hazardous
aubauncct at or in connection, with the
Site:
Whereat, the Regional Administrator
of the United State* Environment*!
Protection Agency. Region
(."Regional Administrator") has
determined that prompt settlement of
this case is practicable and in the public
interest
Whereas, this settlement involves
only a minor portion of the response
costs at the Site with respect to each
[insert "Defendant" or "Settling
Defendant" as appropriate):
Whereat, (insert the amount and
toxicity criteria used to qualify for de
minima treatment under the particular
settlement, e.j.. "information currently
known to the United States indicates
that the amount of bazardou*
substances contributed to the Site by
each Settling Defendant doe* not exceed
* of the hazardous substance* at
the Site, and that the toxic oc other
hazardous effects of the hazardous
substances contributed to the Site by
each Settling Defendant do not
contribute disproportionately to the
cumulative toxic or other hazardous
effects of the hazardous substance* at
the Site"]:
Whereat, the Regional Administrator
baa. therefore, determined the amount of
hazardous substances contributed to
this Site by each Settling Defendant and
the toxic or other hazardous effects of
the hazardous substances contributed to
the Site by each Settling Defendants are
minimal in comparison to other
hazardous substances at the Site: and
Whereat, the United State* and the
Settling Defendants agree that
settlement of this case without further
litigation and without the admission or
adjudication of any issue of fact or law
is the moat appropriate means of
resolving thia action;
Now, therefore, it is ordered, adjudged
and decreed a* follows:
L IttriedJctiofl
This Court has Jurisdiction over the
subject matter and the parties to this
action. The parties agree to be bound by
the terms of this Consent Decree and not
to contest its validity in any subsequent
proceeding to implement or enforce its
term*.
U. Parties Bound
This Consent Decree shall apply to
and be binding upon the United State*
and shall apply to and be binding upon
the Settling Defendants, their directors.
officers, employees, agents, successors
and assigns. Each signatory to this
Consent Decree represents that he or
she is fully authorized to enter into the
-------
R»gUl«r / Vol Si No. 218 / Thur»d«y, Nov«mbtr 1Z 19B7 / Notice*
4339S
terms and condiuona of this Consent
Decree and to bind legally the Party
represented by him or her.
(Not*: It may be necessary to include
a Statement of Purpose and/or a
Dtfinitioni provinon.]
III. Payment
1. Each Settling Defendant shall pay
to the Hazardous Substance Superfund
(insert as appropnata either "the
amount set forth below" or "the amount
aat forth in Attachment to within
days (insert small amount of nm»
••g.. 10. 30 or 45] of entry of this Consent
Decree.*
2. [Note: If a premium payment is
included in the dollar amount to be paid
by each Settling Defendant, the Consent
Decree should explain what portion of
the total payment compensates the
United States for past and projected
costs (including possible cos; overruns)
and what portion of the total payment is
the premium amount. Lists may be
attached and incorporated by reference
as needed. A simple example follows:
Of the total payment of $30.000 to be
made by each Settling Defendant
pursuant to Paragraph 1 of this Section.
$10.000 represents each Settling
Defendant's share of the response costs
including possible cost overruns, of the
remedial action consistent with the
Record of Decision ("ROD") for the Site
(which currently are estimated to be
between S and S.—). and $20.000
represents each Settling Defendant's
share of arty costs which may be
incurred if EPA determines that the
remedial action consistent with the ROD
is not protective of public health or the
environment]
(Note: This model assumes that there
will be only one ROD at the site. If
multiple operable unit RODs will be
issued at the aita. the decree must
clearly identify which ROD is being
referenced and should be structured to
take into account the additional
remedial action contemplated in. tj~
the payment covenant not to sue. and
reservation of rights provisions.)
3. Each payment shall be made by
certified or cashier's check made
payable to "EPA-Hazardous Substance
Superfund." Each cheek shall reference
the site name, the number and address
of the Settling Party, and the civil action
number of this case, and shall "be sent to:
EPA Superfund. P.O. Box 371003M.
Pittsburgh. Pennsylvania 13231
4. Each Settling Defendant shall
simultaneously sand a copy of its check
to:
(Insert name and address of Regional
Attorney or Remedial Project
Manager]
IV. Civil Penalties
In addition to any other remedies or
sanctions available to the United States,
any Settling Defendant who fails or
refuses to comply with any term or
condition of this Consent Decree shall
be subject to a civil penalty of up to
$3*0"" par day of such failure or refusal
pursuant to section 122(1] of CERCLA.
42 U.S.C 9022(1).
V. Certification of Settling Defendants
[Note: The following language
regarding disclosure of information
concerning waste contributions to the
site should be used in cases in which the
de minima settlement is concluded pnor
to completion of PR7 investigations.
especially where information requests
or subpoenas have not been issued:
Each Settling Defendant certifies that.
to the best of its knowledge and belief, it
has provided to the United States all
information currently in its possession.
or in the possession of its officers.
directors, employees, contractors or
agents which relates in any way to the
ownership, operation, generation.
treatment, transportation or disposal of
hazardous substances at or in
connection with the Site.]
VL Covenant not to sue
1. Subject to the reservations of rights
in Section VII Paragraphs l and 2. of
this Consent Decree, upon payment of
the amounts specified to Section III.
Paragraph i. of this Consent Decree, the
United States covenants not to sue or to
take any other civil or administrative
action against any of the Settling
Defendants for "Covered Matters."
"Covered Matters" shall include any
and all civil liability for reimbursement
of response costs or for injunctive relief
pursuant to sections 1W or 107(a) of
CERCLA. 42 U.S.C MM or «07(«). «>d
section 7009 of RCRA. 42 U.S.C. 6073,
with retard to the Site.
2. In consideration of the United
States' covenant not to sue in Paragraph
1 of this Section, the Settling Defendants
agree not to assert any claims or causes
of action against the United States or
the Hazardous Substance Superfund
arising out of Covered Matters, or to
seek any other costs, damages, or
attorney's fees from the United States
arising out of response activities at the
Site.
VH. Reservation of Rights
1. Nothing in this Consent Decree la
intended to be nor shall it be construed
as a release or covenant not to sue for
any claim or cause of action.
administrative or judicial, civil or
criminal past or future, in law or in
equity, which the United Slates may
have against any of the Settling
Defendants for
(a] Any liability as a result of failure
to make the payments required by
Section QL Paragraph 1. of Ihis Consent
Decree: or
(b) Any ma Hers .not expressly
included in Covered Matters, including.
without limitation, any liability for
damages to natural resources. [Note:
This natural resource damages
reservation must be included unless the
Federal natural resource trustee has
agreed to a covenant not to sue pursuant
to section 122fj)(2) of CERCLA. in
accordance with section 122U)(1) of
CERCLA. where the release or
threatened release of any hazardous
substance at the site may have resulted
in damages to natural resources under
the trusteeship of the United States the
Region should notify the Federal na'.ur&i
resource trustee of the negotisnons snd
encourage the trustee to participate in
the negotiations.)
2. Nothing in this Consent Decree
constitutes a covenant not to s« or to
take action or otherwise limits the
ability of the United States to seek or
obtain further relief from any of the
Settling Defendants, and the covenant
not to sue in Section VL Paragraph 1. of
this Consent Decree is null and void, if:
(a) Information not currently known to
the United States is discovered which
indicates that any Settling Defendant
contributed hazardous substances to thr
Site in such greater amount or of such
greater toxic or other hazardous effects
tha' the Settling Defendant no longer
qualifies as a 'de minims parry at the
Site because [insert volume and toxicity
criteria, e.f.. "the Settling Defendant
contributed greater than —_* of the
hazardous substances at the Site or
contributed disproportionately to the
cumulative toxic or other hazardous
effects of the hazardous substances at
the Site"]:
(Notes Unless a premium payment is
being made under Section ID of this
Consent Decree which compensates the
United States "for laking the risk that the
events noted in the reservations of rights
in subparagraphs (b) and (c) below may
occur, those reservations should be
included. A premium may be accepted
in lieu of one or both of the reservations
of rights m Subparagraphs (b) and (c)
below:
(b) Coats incurred during the
completion of the remedial action (if
ROD is completed, insert -consistent
with the Record of Decision-) at the Site
exceed (insert dollar amount of cost
ceiling): or
(c) The United States determines.
based upon conditions at the Site.
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43396
Federal Register / Vol. 52. No. 218 / Thursday. November 12. 1987 / Notices
previously unknown to the United
States, or information received, in whole
or in part after entry of this Consent
Decree, that th« remedial action (if ROD
it completed, insert "consistent with the
Record of Decision**] is not protective of
public health or the environment.)
3. Nothing in this Consent Decree is
intended as a release or covenant not to
sue for any claim or cause of action.
administrative or judicial, civil or
criminal, past or future, in law or in
equity, which the United States may
have against any person, firm.
corporation or other entity not a
signatory to this Consent Decree.
4. The United States and the Settling
Defendants agree that the actions
undertaken by the Settling Defendants
in accordance with this Consent Decree
do not constitute an admission of any
liability by any Settling Defendant
VIII. Contribution Protection
Subject to the reservations of rights in
Section VII. Paragraphs 1 and 2. of this
Consent Decree, the United Ststes
agrees that by entering into and carrying
out the terms of the Consent Decree.
each Settling Defendant will have
resolved its liability to the United States
for Covered Matters pursuant to section
122(g)C1 of CERCLA. 42 U.S.C
9622(g)(5). and shall not be liable for
claims for contribution for Covered
Matters.
IX Public Comment
This Consent Decree shall be subject
to a thirty-day public comment period.
The United States may withdraw its
consent to this Consent Decree if
comments received disclose facts or
considerations which indicate that this
Consent Decree is inappropriate.
improper or inadequate.
X Effective Date
The effective date of this Consent
Decree shall be the date of entry by this
Court following public comment
pursuant to Section IX of this Consent
Decree.
The United States of America
Ef.
Settling Defendants)
So ordered this.
.day of
United Stain Dia
Attachment J—Interim Model Section
12S)(4l
U.S. EPA Docket No/_l
Administrative Order on Consent
/. Jurisdiction
This Administrative Order on Consent
("Consent Order") is issued pursuant to
the authority vested in the President of
the United States by section 122(g)(4) of
the Comprehensive Environmental
Response. Compensation, and Liability
Act of i860, as amended by the
Superfund Amendments and
Raauthorization Act of 1986
("CERCLA1. Pub. L 99-499.42 US.C
9622(gH4). to reach settlements in
actions under section 108 or 10T*a) of
CERCLA, 42 U.S.C. 9806 or 9807(a). The
authority vested in the President has
been delegated to the Administrator of
the United States Environmental
Protection Agency ("EPA") by Executive
Order 12580. 52 F*R 2923 {Jan. 28.1967)
and further delegated to the Regional
Administrators of the EPA by EPA
Delegation No. 14-14-E 'Sept. 13.1987).
This Administrative Order on Consent
is issued to [insert names or reference
attached list of respondents"
("Respondents"). Each Respondent
agrees to undertake ell actions required
by the terms and conditions of this
Consent Order. Each Respondent further
consents to and will not contest EPA's
jurisdiction to issue this Consent Order
or to implement or enforce its terms.
[Note: It may be necessary to include
a Statement of Purpose and/or a
Definitions provision.]
IL Stcttmtnt of Facts
1. [In one or more paragraphs, insert
site name, location, description. NPL
status and bnef statement of historical
hazardous substance activity at the
site.]
2. Hazardous substances within the
definition of section 101(14) of CERCLA.
42 U.S.C. 9801(14). have been or are
threatened to be released mto the
environment at or from the Site. [Note
Additional information about specific
hazardous substances present on- or off-
site may be included.)
9. As a result of the release or
threatened release of hazardous
substances into the environment. EPA
has undertaken response action at the
Site under section 104 of CERCLA. 42
U.S.C. 9804. and will wulertake response
action in the future. [Note: A brief
recitation of the specific response action
undertaken or planned for the site. ej..
whether an RI/FS and ROD have been
completed, should be included.]
4. In performing this response action.
EPA has incurred and will continue to
incur response costs at or in connection
with the Site. [Note The dollar amou
of coats incurred as of a specific dau
should be included.)
S. [Identify each respondent and it:
relationship to the site. If respondent
are numerous, state generally that
"Information currently known to EPA
indicates that each Respondent listei
Attachment ___ to this Consent
Order, which is incorporated herein I
reference, arranged for disposal or
treatment, or arranged with a
transporter for disposal or treatment.
a hazardous substance owned or
possessed by such Respondent at the
Site, or accepted a hazardous subaur
for transport ot the Site."]
e. [In one or more paragraphs, pres<
in summary fashion the factual basis
EPA's determination in Section III be:
that the respondents are dt minimi*
parties, L*~ that the amount of
hazardous substances contributed to
site by each respondent and the toxic
other hazardous effects of the
substances contributed to the site by
each respondent are minimal in
comparison to other hazardous
substances at the site. The language v
vary depending upon the criteria
established for the particular scttlerm
An example follows:
Information currently known to EP.
indicates that the amount of hazardoi.
substances contributed to the Site by
each Respondent does not exceed
» of the hazardous substances
the Site, and that the toxic or other
hazardous effects of the substances
contributed by each Respondent to th
Site do not contribute disproportion*!
to the cumulative toxic or other
hazardous effects of the hazardous
substances at the Site. [Note: An
attachment listing the volume and
general nature of the hazardous
substances contributed to the site by
each respondent to the extent availab
should be attached, and incorporated b
reference. The total estimated volume
hazardous substances at the site shoul
be noted on the attachment]]
7. b> evaluating the settlement
embodied to this Consent Order. EPA
has considered the potential costs of
remediating contamination st or in
connection with the Site taking into
account possible cost overruns in
completing the remedial action (If ROC
is completed, insert "consistent with ti
Record of Decision for this Site"), and
possible future costs if the remedial
•action (if ROD is completed, insert
"consistent with the Record of Decisio
for this Site") is no protective of public
health or the environment
g. Piyments required to be made by
each Respondent pursuant to this
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Federal Register / Vol. 52. No. 218 / Thursday. November 12. 1987 / Notices
43397
Consent Order are a minor portion of
the total response coats at the Site
which EPA. baaed upon currently
available information, estimates to be
between S and S (Note:
The dollar figure inserted should include
the total response coats incurred to date
as well as the Agency's projection of the
total response costs to be incurred
dunng completion of the remedial action
at the site.)
9. EPA has identified persons other
than the Respondents who owned or
operated the Site, or who arranged for
disposal or treatment or arranged with
a transporter for disposal or treatment
of a hazardous substance owned or
'possessed by such person at the Site, or
who accepted a hazardous substance for
transport to the Site. EPA has
considered the nature of its case against
these non-settling parties in evaluating
the settlement emoodied in this Consent
Order.
///. Determinations
Based upon the Findings of Fact set
forth above and on the administrative
record for this Site. EPA has determined
that:
1. The (insert site name] sue is a
"facility" as that term :s defined in
section 101(9) of CERCLA. 42 U.S.C.
9601(9).
2. Each Respondent is a "person" as
that term is defined in section 101(21) of
CERCLA. 42 U.S.C. 9601(21).
3. Each Respondent is s potentially
responsible party within :he meaning of
section 107[a) and 122,'g)(l) of CERCLA.
42 U.S.C.-9607(a) and 9B23lg)|l).
4. The past present or future
migration of hazardous substances from
the Site constitute an actual or
threatened "release" as that term is
defined in section 101(22) of CERCLA. 42
U.S.C 9601(22).
'S. Prompt settlement with the
Respondents is practicable and in the
public interest within the meaning of
section 122(*,)(1) of CERCLA. 42 U.S.C
6. This Consent Order involves only a
minor portion of the response costs at
the Site with respect to each Respondent
pursuant to section 122(g)(l) of CERCLA,
42 US.C. 9622
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43398 F«d«r«l Register / Vol. 51 No. 218 / Thunday. November 12. 1987 / Notice
•rising out of response activities it the
SJU-
Reservation of Rights
8. Nothini in this Conitnt Order is
intended ro be nor shell it be construed
•s s release or covenant not to tut for
•ny claim or cause of action.
administrative or judicial civil or
criminal pait or future, at lew or in
equity, which the United States.
including EPA. may have against any of
the Respondents for
(a) Any liability as a result of failure
to make the payments required by
Section IV. Paragraph l. of this Consent
Order or
fb) Any matters not expressly
included in Covered Matters, including.
without limitation, any liability for
damages to natural resources. [Note:
This natural resource damage
reservation muit be included unless the
Federal natural resource trustee has
agreed to s covenant not to sue pursuant
to section 122(j)(2) of CERCLA. In
accordance with section 122())CU of
CERCLA. where the release or
threatened release of any hazardous
substance at the site may have resulted
in damages to natural resources under
the trusteeship of the United States, the
Region should notify the Federal natural
resource trustee of the negotiations and
encourage the trustee to participate in
the negotiations.)
10. Nothing in this Consent Order
constitutes a covenant not to sue or to
take action or otherwise limits the
ability of the United States, including
•EPA. to seek or obtain further relief from
any of the Respondents, and the
covenant not to sue in Section IV.
Paragraph 7. of this Consent Order is
null and void, if:
(a) Information not currently known to
EPA is discovered which indicates that
any Respondent contributed hazardous
substances to the Site in such greater
amount or of such greater toxic of other
hazardous effects that the Respondent
ao longer qualifies as a dt minima party
at the Site because [insert volume and
toxicity criteria from Paragraph 7 of the
Findings of Fact cj.. The Respondent
contributed greater than _* of the
hazardous substances at the Site or
contributed hazardous substances
which contributed disproportionately to
the cumulative toxic or other hazardous
effects of the hazardous substances at
the SiteM]:
[Note: Unless a premium payment is
being made under Section IV. Paragraph
1. which compensates EPA for the risk
that the events noted in the reservations
of rights in subparagraphs (b) and (c)
may be accepted in lieu of one or both of
the reservations in subparagraphs (b)
and (c) below:
(b) Costs incurred during the
completion of the remedial action (if
ROD is completed, insert "consistent
with the Record of Decision'] et the Site
exceed [insert dollar amount of cost
ceiling]: or
(c) EPA determines, based upon
conditions at the Site, previously
unknown to EPA. or information
received, in whole or in part, after entry
of this Consent Order, that the remedial
action (if ROD is completed, insert
"consistent with d»a Record of
Decision"] is not protective of public
health or the environment
11. Nothing to this Consent Order is
intended as a release or covenant not to
sue for any claim or cause of action.
administrative or judicial civil or
criminal, past or future, in law or in
equity, which the United States.
including EPA. may have against any
person, firm, corporation or other entity
not a signatory to thii Consent Order.
12. EPA and the Respondents agree
that the actions undertaken by the
Respondents in acordance with this
Consent Order do not constitute an
admission of any liability by any
Respondent. The Respondents do not
admit and retain the right to controvert
in any subsequent proceedings, other
than proceedings to implement or
enforce this Consent Order, the validity
of the Findings of Fact or
Determinations contained in this
Consent Order.
Contribution Protection
13. Subject to the reservation of rights
in Section IV. Paragraphs 9 and 10. of
this Consent Order. EPA agrees that by
entering into and carrying out the terms
of this Consent Order, each Respondent
will have resolved its liability to die
United Slates for Covered Matters
pursuant to section 122(gM5) of CERCLA,
42 US.C. 9822{g)(3). and shall not be
liable for claims for contribution for
Covered Matters,
Parties Bound
14. This Consent Order shall apply to
and be binding upon the Respondents
and their directors, officers, employees,
agents, successors and assigns. Euch
signatory to this Consent Order
represents that he or she is fully
authorized to enter into the terms and
conditions of this Consent Order and to
bind tegally the Respondent represented
by him or her.
Public Comment
IS. This Consent Order shall be
subject to a thirty-day public comment
period pursuant to section I22(i) of
CERCLA. 42 U.S.C M22(i). la
accordance with section 122(iH3)
CERCLA. 42 US.C. 9622(i)(3). EP/'
withdraw consent to this Consent
if comments received disclose fee
considerations which indicate tha
Consent Order is inappropriate.
improper or inadequate.
Attorney General Approval
16. The Attorney General or his
designee has issued prior written
approval of the settlement embodi
this Consent Order in accordance
section 122(g)(4) of SARA. [Note:
Attorney General approval usual!*
be required for d» minima consen
orders because the total part and
projected response costs st the sn
exceed SSOO.OOO. excluding mteres
the event that Attorney General
approval is not required, the order
should not include this Paragraph
should include the following es a
separate numbered paragraph in t'
Determinations section (Section II.
above: "The Regional Admintstrai
EPA. Region xx hti determined tr
total response costs incurred to d*
or in connection with the Site do n
exceed SSOO.OOO excluding interest
that based upon information cunt
known to EPA. total response cost
in connection with the Site ere not
anticipated to exceed SSOOOOO.
excluding interest in the future." I
this determination requires change
the model Findingi of Fact in Secti
above: specifically. Paragraph 3 of
Findings should not state that furth
response action will be undertaker
the future, and Paragraph 4 of the
Findings should not state that EPA
incur response costs in the future.]
Effective Date
17. The effective date of this Con-
Order shall be the date upon which
issues written notice to the Respon<
that the public comment period put
to Secton IV. Paragraph IS. of this
Consent Order has closed and that
comments received, if any. do not
require modification of or EPA
withdrawal from this Consent Ord>
It is so agreed and ordered:
(Respondents)]
By: [Name] [Date]
VS. Environmental Protection Age:
By. (Name) [Date)
|m Dec. B7-2010? Filed 11-W-T: MS •
-------
5296
OSWER f 9834.10
Federal Register / Vol. 53. No. 35 / Tuesday. February 23. 1986 / Notices
CfcageCounvy..
we ooo
2.000.000
D*t*d: February 5.198*.
Uwreac* J. }«a«x.
Attittant Adminittfotor for Water.
|FR Doc. M-37?e Filed 2-22-M: fc4i am)
(FW.-JS30-*)
Supcrfund Program: Notice Latter*,
Negotiations and Information
Exchange
AOCNCV: En\ironmental Protection
Agency.
ACTION: Request for Public Comment.
SUMMARY: The Agency i* publishing the
"Interim Guidance on Notice Letters.
Negotiations, and Information
Exchange" today to inform the public
about these guidelines and to solicit
public comment. This guidance covers
the use of the section I22!e) special
notice procedures and other related
settlement authorities under section 122
of the Comprehensive Environmental
Response. Compensation, and Liability
Act of 1080 (CERCLA or Superfund) as
amended by the Superfund Amendments
and Reauthonzation Act of 1986 (SARA)
(hereinafter referred to as "CERCLA").
DATC Comments must be provided on or
before*April 25.1988.
AOOWISS: Comments should be
addressed to Kathy MacKinnon. U.S.
Environmental Protection Agency.
Office of Waste Programs Enforcement.
Guidance and Oversight Branch (WH-
527). 401 M Street. SW.. Washington. DC
20460.
post snirnm MPONMATION COHTACT.
Kathy MacKinnon. U.S. Environmental
Protection Agency. Office of Waste
Programs Enforcement. Guidance and
Oversight Branch (WH-S27). 401 M
Street. SW.. Washington. DC 20460 (=02)
475-erro.
«u»«njM»xTAsrv MPONMATIOK: The
guidance emphasizes the importance of
reaching voluntary settlements with
potentially responsible parties (PRPs)
and uses notice letters, negotiations, and
information exchange as mechanisms
for facilitating settlements. The guidance
establishes a process for issuing notice
letters to PRPs. including the use of the
special notice procedures under section
122(e) of CFRCLA. The guidance
establishes separate notification
processes for removal and remedial
actions.
The guidance also discusses the
Agency i general policy for exchanging
information with PRPs. including a
discussion about EPA's release of
information under section 122(e)(l) of
CERCLA and EPA's authorities to
request information from PRPs under
sections I04(e) and 122(e)(3)(b) of
CERCLA and section 3007(a) of the
Resource Conservation and Recovery
Act (RCRA).
Finally, the guidance discusses
various aspects of the negotiation
process. This includes s discussion
about negotiation moratoriums that are
triggered by the use of the section 122(e)
special notice procedures. This also
includes a discussion about concluding
negotiations and managing negotiation
deadlines.
The Agency encourages public
comment and will reevaluate this
interim guidance in response to such
comments.
The interim guidance follows.
Date: Novtmber a. 1967.
).W. MoCnw
Acting Attiitani Admintttrator for Solid
Want and E.-ntrgtncy Ktntponit.
INTERIM CLTDANCI ON NOTICE
LETTERS. NEGOTIATIONS. AND
INFORMATION EXCHANGE
Too/* of Conunu.
I. Introduction
II. Purpoee anrt Scop* of Guidance
til. Statutory Authority
A. Settlement*
B. Special Notice Procedure* and
Information Reteaie
IV. Information Excitant*
A. Information Request*
B. Information Rilctt*
V. Notice Utitn and Nesottation
Moratorium for Rl/FS and RD/RA
A- Purpoee of Notice Utters
B. General Notice L*tt*r
1. Whether to Issue General None*
2. Timing of General Notice
X Recipients of General Notice
4. Content* of General Notice
C. RI/FS and RD/RA Special None* Utter*
1. Whether to Uau* Rl/FS *nd RD/RA
Special Nonce
1 Norifymt PRPi When Not Appropriate
to Issue Kt/FS and RD/RA Special
None*
S. DOf Role in Rl/FS ami RD/RA
Negotiation*
4. Tinma of RI/FS Special Notice
S. Timing of RD/RA Special Nouce
s. Recipients of RI/FS and RD/RA
•Special Notice
1. Contents of Rl/FS and RD/RA Special
Notice
0. Conclusion of Negotiation Moratorium
and Deadline Management for Rl/FS and
RD/RA-
VL Notice Utter* and Netotiation
Moratonum for Ramoval Action*
A. Nouce Utters
1. Whether to U*ue Notice for Removal*
r WbM to UM Special None*
Procedure* for Removal*
X Notifying PRP» When Not Appropnite
To UtiiUe Special Notice Procedure* for
Removal*
4. DO | Role in Removal Negotiation*
S. TUniAg of Notice for Removii*
a. Recipient* of Notice for Remove!*
7. Content* of Notice for Removal*
B. Conclusion of Ncgotutioti Momtorium
and Deadline Management for Removal*
C Administrative Orden and Negotiation
Moratorium for Removal*
VTL Disclaimer
VU1. For Further Information
Appendix A, Timinf of RD/RA Special
Notice Lti'tr Appendix B- PRP
Settlemeni proem for Rl.'FS and RD.'RA
Appendix C. Model Sotice Letter* (To b«
*em to EPA region* at a later datel
Memorandum
SUBJECT: Intenm Guidance on Notice
Utters. Nofotijuoru, and Information
Exchange
FROM: j. Winston Porter. A**i*tin:
AUminiitrator
TO: Refional Adir.iniitraton
I. Introduction
The Superfund Amendments and
Reauthonzation Act of 1966 (SARA).
which amends the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
(CERCLA). maintains the importance of
a strong Superfund enforcement
program.1 In particular. SARA
emphasizes the importance of entenng
into negotiations and reaching
settlements with potentially responsible
parties (PRPs) to allow PRPs to conduct
or finance response actions. SARA
generally codified the Agency's Interim
CERCLA Settlement Policy but also
established some new authorities and
procedures that were designed to
facilitate settlements,
A fundamental goal of the CERCLA
enforcement program is to facilitate
voluntary settlements. EPA believes that
such settlements are most likely to occur
when EPA interacts frequently with
PRPs. Frequent interaction is important
because it provides the opportunity to
share information about a site and may
reduce delays in conducting response
actions caused by the lack of
communication. Important mechanisms
for promoting interaction aad facilitating
communication between EPA and PRPs
1 CIUCLA *f 1**) •• iRHmded by SARA of iiea
i* rtlcrmj to >n ihn |uiOance u CKRCUV
-------
Ftdtrti RtyUter / VoL S3. No. 35 / Tuesday. February 23. 1868 / Notice*
5299
include issuing notict letter*, entering
into negotiations, and exchanging
information with PRPi.
This guidance repla:es the October
«Z. 1984 guidance on ' Procedures for
If suing Notice Letten" and the October
9.1965 guidance on 'Timely Initiation of
Responsible Party Starches. Uauanca of
Notice Latter*, and Releaie of
Information." * Although cenatn
procedures and the timing of various
activities have been modified, this
guidance retains many fundamental
aapects of the October 12.1964 and
October 9. IMS guidances. In particular.
this guidance re-emphasizes the
importance of timely issuance of notice
letters and the exchange of information
between EPA and PRPs. In addition, this
guidance incorporates s moratorium and
"formal" period of negotiation {referred
to as a negotiation moratorium) into the
settlement process. EPA'5 commitment
to carrying out these activities is crucial
for supporting our fundamental goal of
facilitating negotiated settlements.
II. Purpose and Scope of Guidance
The purpose of this guidanc: is to
assist the Regions in establishing
procedures for the issuance of notice
tetters to PRPs. for the conduct of
negotiations between EPA and PRPs.
and for the exchange of information
between EPA and PRPs.
This guidance addresses the use of
both "general" and "special" notice
letters for removal and remedial actions.
Special notice letters differ from general
notice letters because special notices
trigger the negotiation moratorium. The
negotiation moratorium is the period of
time where a moratorium is imposed on
certain EPA actions and a penod of
"formal" negotiations is established
between EPA and PRPs.
Us* of both general and special notice
letter* are discretionary. However, the
Refiona art expected to issue general
and special notices for the vast majority
of remedial actions. Such notice letters
will be isaued for remedial
investigations/feasibility studies (Rl/
FSs) ind remedial designs/remedial
actions (RD/RAs). Although it is
generally appropriate to issue a
"removal notice" for all removal actions.
the Regions are not expected to invoke
the section 122(e) special notice
procedures for most removals.
This guidance also addresses the
timing, duration, and conclusion of the
negotiation moratorium. Finally, this
guidance discusses the process of
information exchange between EPA and
PRPs. including requests for and
releases of site-specific information.
Ill Statutory Authority
A. Settlement*
Sections 104-
ohaao* of tht rvtaen** ictmn. In o«rncul*r.
Con*j»M nomj ilui tU RJ/FS metal none* nood
net b* accamoanitd by infqnnaiion on velum* «nc
naiuf* of win* ino nntint if thu information u
not avatlablt it tht tun of lh< SJ.'FS. A Mpjraic
this section provides for EPA to make
«vch information available in advance
of the special notice upon request by a
PRP in accordance with procedures
provided by EPA.
Uauanca of a special notice triggers a
moratorium on the commencement of
certain actions by EPA under section
104 or section 106. The purpose of the
moratorium is to provide for a period of
negotiation between EPA and PRPs. The
moratorium prohibits EPA from
commencing any response action under
section 104(a). and an RI/FS under
section 104.
EPA is not prohibited from ur.cetSKir.s
a response or enforcement action dunn;
the negotiation period when there is a
significant threat to public health or ihe
environment.
Section 122(a) provides that if EPA
decides not to use the special notice
procedures established under section
122(e). EPA is required to notify PRPs in
writing of this decision along with an
explanation why it is inappropriate to
use such procedures. The decision by
EPA to use or not to use the special
notice procedures is not subject :o
judicial review.
FV. Information E«gjmigt
The exchange of information between
EPA and PRPs is crucial for faplita'.:.-.g
aettlements. Information exchange
should be an ongoing process of
communication. EPA uses infonr.atior
into
i i»i»ld be anituif
MUC* Mtf inJon
(or pnviw o*ru*i »he actual!}- coaduct th*
umtdul acuon aad ofonMiion on v*hM». n*>*rt
and nnkmf of WHIM should b* made •viuiolt
routnwly ai thu nm« So* th* Conl«f»ne« «.»pon r.n
th* Suovrfonc' Am*nom*«ii» »nd «*-.gifiont»nor
Act of ISM. • Cant- M SMI. (Upon *•-»*: Pf i»
tit**)
-------
F«dar*l Radiator / Vol. 53. No. 35 / Tuesday. February 23. IBM / Notices
obtained from PRPi to determine
potential liability, to dtttrmine the need
for response, and to tupport the
•election of the remedy. PRP* UM
information obtained from EPA to
organize among themielvei and to
develop • "good faith offer" to conduct
or finance retponae actions.
A. Information foquesa
EPA may request information from
PRPi about vanout activities and
condition! under section IM(e) of
CERCLA and under section 3007(a) of
the Resource Conservation and
Recovery Act (RCRA). In addition. EPA
may iatu* administrative subpoenas
under section 122(e)(3)(b) of CERCLA.
Information commonly requested
includes details concerning waste
operations and waste management
practices, the type and amount of
substances contributed by each PRP. as
well as the name of other PRPi that
contributed substances to the site.
Information requests should be issued
as early as practicable and may be
issued as a separate letter during the
PRP search process, as pan of the
general notice letter, or through an
administrative subpoena. A detailed
discussion about the use of information
eequest letters and administrative
lubpoenas is contained in the
forthcoming "Guidance on Use and
Enforcement of Information Requests
and Administrative Subpoenas under
CERCLA'sections 104(e) and 122(e)."
The Regions have the discretion to
decide whether to issue an information
request as a separate letter during the
PRP search or as a component of a
general notice letter. Issuing a separate
information request letter in advance of
the general notice may be advantageous
in situations where information from
PRPs is needed to determine whether it
is appropriate to iaaut a notice letter to
such parties.
. Information requests should be
developed in accordance with the
forthcoming guidance on information
requests arid administrative subpoenas
aa mentioned above. An information
request should also indicate that EPA
plans to vigorously enforca information
requests with the new enforcement tools
authonxed under SARA which include
issuing orders under section 104(e)(5).
Finally, the information request should
Indicate that it is the PRP* responsibility
• to inform EPA whether information they
provide to EPA is confidential and
subject to protection under section
104(e) of CERCLA.
B. Information fUliott
It is important to gather and release
lite-specific information to PRPi aa soon
as reasonably practicable. Gathering
and releasing such information early in
the process will not only expedite
response and enforcement activities but
will help PRPs organize and negotiate
among themselves as well.
As indicated, section 122(e)(l)
provide* for the release of certain
information to PRP* to the extent such
information is available. Such
information includes the names and
addresses of other PRP*. the volume and
nature of substances contributed by
each PRP. and a ranking by volume of
the substances at the facility. This
information is to be provided to PRPs in
edvance of the special notice in
accordance with procedures developed
by EPA.
Congress recognized the limitations to
EPA's ability to make certain
information available to PRPs.
especially early in the response process.
Therefore, this information can be
released only to the extent such
information is available. If the Regions
have information on volume, the
Regions should develop volumetric
rankings and should make such
information available to PRPs a* soon
as practicable. However, due to their
preliminary and summary nature. EPA
will not expand resources to explain or
defend any list or ranking. Lists or
ranking* released to PRPs and others
should'alweys contain appropriate
disclaimer*.
The Regions are encouraged to release
information to PRPs as soon as
reasonably possible. The Regions may
respond directly to individual PRP
requests for information, may use the
notice litters as vehicles to release such
information to PRPi. or may establish
alternative mechanisms in some
situations as discussed below. The
Regions are strongly encouraged to use
the notice letter* to release site-specific
information. In particular, uae of the
general notice may provide a convenient
opportunity to release information in
advance of the special notice pursuant
to the statutory provision that EPA
release such information in advance of
the special notice in accordance with
procedure* developed by EPA.
Although it is generally-preferable to
release information to individual PRPs
through notice letters, alternative
ffty^IniMM may be used in unusual
circumstance*. For example, in
instance* where there are many PRP*
and/or where there it a substantial
amount of information to be released.
the Regions may consider making the
information available through a central
mechanism (e.g. through a PRP steering
committee if one has been formed and if
the committee has agreed to be a
clearinghouse for distributing
information to other PRP*). An
alternative would be to indicate in the
notice letter that the Region has site-
apecific information that will be made
available to the PRP* in a manner
specified in the letter.
V. Notice Utter* aad Negotiation
Moratorium for Rl/FS and RD/RA
This guidance create* a systematic
proce** for issuing three separate notice
letters for remedial action*. The three
notice letters are (1) the general notice.
(2) the Rl/FS special notice, and (3) the
RD/RA special notice. Even though the
Rl/FS and RD/RA special notice letter*
are separate letters, the are discussed in
the same section below iince the
content of these letters is basically the
same. In instances when the content of
the Rl/FS and RD/RA special notices
differ, separate sections are presented.
Also, this guidance is written with the
assumption that each notice letter will
be issued in sequence. Consequently.
the guidance has been structured so that
certain information provided or
requested in one letter is not repeated in
a subsequent letter. The content of
actual letters may. however, need to be
modified in situations where this
process is not followed.
For example, there may be a situation
where site activities are already
underway and where the Region is
ready to issue the Rl/FS special notice
but has not issued a general notice. In
this instance, it would not be necessary
to wait to send the special notice until
after a general notice is issued.
However, it may be appropriate to
include certain aspects of the general
notice into the special notice.
A. Purpott ofNotiet Lttun
The purpose of the general notice is to
Inform PRP* of their potential liability
for future retpontc coau. to begin or
continue the procea* of information
exchange, and to initiate the process of
"informal" negotiation*. In addition, the
general notice informs PRPs about the
possible use of the section 122(e) special
notice procedure* and the subsequent
moratorium and "formal" negotiation
period.
The purpose of the special notice is
similar to the general notice, except that
the special notice is also used to invoke
the statutory moratorium on certain EPA
actions and to initiate the process of
"formal" negotiation*. Although the
general notice doe* not trigger a
moratorium on any EPA action and doe*
not invoke a "formal" period of
negotiation, the general notice is
expected to initiate a dialogue between
-------
Federal Remitter / Vol. S3. No. 35 / Tuesday. Febniary 23. IBM / Notices
5301
EPA and PRPi. Issuance of t general
notice should be viewed as i
mechanism for initiating negotiations
whereas issuance of a special notice
should be viewed as a mechanism for
concluding negotiations.
The term "informal" negotiations does
not mean that such negotiations are not
senous efforts to reach a settlement.
Rather "informal" negotiations refers to
any negotiations that are not conducted
as pan of the negotiation moratorium
triggered by issuance of a special notice
under section 122(a). The terms
"informal" and "formal" negotiations
are used to draw a distinction between
negotiations which are and are not
covered by the section 122(e)
moratorium.
B. General Notice Letter
Agency notification procedures should
provide PRPi with sufficient time to
organize and develop a reasonable offer
to conduct or finance the response
action. Toward this end. the Regions
should contact PRPs prior to issuing a
section 122(e) special notice by issuing a
general nonce letter.
i. Whether To Issue Cenerai Notice
A general notice letter should be
issued at the vast maiohty of sites that
are proposed (or or listed on the
National Priorities List (NPLI where
negotiations for the Rl/FS and RD/RA
have not yet been initialed.
Circumstances where it may not be
appropriate to issue the general notice
include sites where-•» notice pursuant to
previous guidance was issued prior to
the reauthonzation of CERCUA or where
the Region is ready to issue a special
notice at the site. These exceptions are
important for minimizing any possible
disruption to ongoing activities.
2. Timing of General Notice
The general notice letter should be
sent to PRPs as early in the process as
possible, preferably once the site has
been proposed for inclusion on the NPL
Early receipt of the general notice will
ensure that PRPs have adequate
knowledge of their potential liability as
well as a realistic opportunity to
participate in settlement negotiations.
When a separate information request
letter has been sent to PRPs prior to the
general notice, the information request
should be sent as early as possible to
avoid any delay in issuing the genercl
notice.
3. Recipients of General Notice
Cenerai notice letters should be sent
to all parties where there is sufficient
evidence to make a preliminary
detprmnation of potential liability
under section 107 of CERCLA. If there is
doubt about whether available
information suppons issuance of the
general notice, separate information
request letters may be sent to such
parties prior to issuing the notice. If a
Federal agency has been identified as a
generator at a facility not owned/
operated by the Federal agency, such
agency should be routinely notified like
other PRPs.
If additional PRPs are identified after
the general notice but before the Rl/FS
special nouce is issued, the Regions
should provide a general notice to those
additional PRPs. If additional PRPs are
identified after general and special
notices are issued, the additional PRPs
need not receive a general notice before
receiving the appropriate special notice.
However, relevant aspects of the
general notice should be incorporated
into the special notice.
Copies of the general notice should be
provided to the Regional administrative
record coordinator, the appropriate
State representative, the State or
Federal trustee if a trustee for natural
resources has been designated, and to
EPA headquarters at the same time
notices are sent to PRPs. The copies of
notices to headquarters should be sent
to the Information Management Section
within the Program Management and
Support Office of the Office of Waste
Programs Enforcement (OWPE).
Providing copies to the administrative
record coordinator is important for
eniunng that the notice is placed in the
administrative record.4 Providing copies
to the State representative and the State
or Federal trustee is important for
ensunng that States are appropriately
informed about possible future
negotiations.1 Providing copies to
OWPE is essential far-permitting entry
into the Superfund Enforcement
Tracking System (SETS). Entry into sets
will facilitate our efforts to track site
activities and to respond to
Congressional and other inquiries. ___
Direct Regional input of data into SETS
on notice letter recipients is planned for
FY19M.
It ii not necessary- to provide copies of
tech general notice'to the administrative
record coordinator. State representative.
State or Federal trustee, or headquarters
in instances where identical notices are
provided to multiple PRPs. Where there
• A di»eu»non iboul piecing none* Irtttn m ih«
•tfminMirauv* rtconl >• omrrd in tn« forthcoming
~Cu«Une» on me Adminitiraiiv* R«eord tot
Selecting» RttponM Acuon Undtr COtdA" and
10 in* pmrnbt* 10 IM fonnceminf mvnioM w iht
N«itnMl Coniinftney Pum.
• $Ui» pcniciBoiion m rwtoixiiont u eev*«*d in
ih» loniteomtr.t "Inwnm Cu.
lUditOM in CCftC.* Enfoocnent"
are multiple PRPs at a site, a copy of one
general notice with a list of other parties
who have received the letter would
suffice.
4. Contents of Cenerai Notice
The general notice letter should
contain the following components: (a) A
notification of potential liability for
response costs, (b) s discussion about
future notices and the possible future
use of special notice procedures, (c) a
geoersJ discussion about site response
acDvities. (d) a request for information
about the site (if appropriate), (e) the
release of certain site-specific
information (where available). (D a
discussion about the merits of forming a
PRP steering committee, (g) a notice
regarding the development of an
administrative record, and (hj a
deadline for response to the letter and
information on the EPA representative
to contact.
a. Potential liability: The letter should
inform parties that they are potentially
liable for response costs under section
107 of CERCLA. including the costs of
conducting the Rl/FS and RO/RA. The
letter should define the scope of
potential liability and should briefly
explain why the panics have been
identified as PRPs.
b. future notjce under section I22!al
and section 122(e>: The letter should
indicate that EPA will notify the party at
an appropriate point in the future. The
letter should specify that this notice will
either be a section 122(a) notice or a
section 122(e) special notice and should
explain what these notices are.
The letter should indicate that the
section 122(a) notice is a notice which
informs parties that EPA will not use the
section 122(e) special notice procedures.
The letter should indicate that the-notice
will provide an explanation for the
decision not to use the special nonce
procedures.
The letter should also indicate that a
section 122(e) special notice will invoke
the negotiation moratorium. The letter
should make clear mm issuance of a
section 122{e) special notice letter is
discretionary and may be used if EPA
determines that use of such procedures
would facilitate an agreement and
expedite remedial action. The letter
should also explain the purpose of the
special notice and the subsequent
negotiation moratorium. Informing PRPs
about the special nonce procedures and
the negotiation moratorium will alert
PRPs to possible future negotiations and
increase their awareness of their
opportunities for participation in such
negotiations.
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5302
Federal Register / Vol. 53, No. 35 / Tuesday. Februiry 23. 19M / Notices
& SHt response activities; The letter
should generally dilcuii the activities
EPA pleas to undertake it the site.
Where appropriate, such activities
should include scheduled stsrt or
completion datei for the RI/TS or RD/
RA. Instances where it may not. be
appropriate to provide sun or
completion dates include situations
where the general notice is issued very
early in the process and where specific
dates have not yet been set or where it
is expected that target dates are Likely
to change significantly.
d. Information request The letter
should request information on,
substances sent to or present at the site
and the names of other PRPs pursuant to
section I04(e) of CERCLA and/or
section 3007(a) of RCRA if a separate
information request has not already
been issued. The content of the
information request should be consistent
with the forthcoming "Guidance on Use
and Enforcement of information
Requests and Administrative Subpoenas
Under CERCLA Sections 104(e) and
I22Je)."
e. Information release: At a minimum.
the letter should release the names and
addresses of other PRPs who have
received the general notice letter. In
addition, to the extent such information
is available, the letter should include the
volume and nature of substances
contributed by each PRP and a ranking
by volume of the substances at the
facility if such information has not been
previously released.
f. PRP steering committee: The letter
should request that the PRPs identify a.
member of their orgamxation who will
represent their interests. In addition, the
letter should recommend that PRPs form
a steering committee to represent the
group's interests in possible future
negotiations. The letter should indicate
that establishing a steering committee is
Important for facilitating negotiations
with EPA.
g. Administrative record: The letter
should be used as a vehicle for
informing PRPs of the. availability of an
administrative record that will contain
documents which form the basil for the
Agency's decision on the selection of
remedy. The letter should indicate that
the record will be open to the public for
inspection and comment. The letter
should also provide information
regarding the opening of the record and
where it will be located
>h. PRP response and EPA contact; The
letter should encourage PRPs to notify
EPA by a specified date of their interest
to participate in future negotiations. The
letter should indicate that PRPs may
respond as a group through a steering
committee if one has been formed. The
letter should also provide a cut off date
far-voluntary compliance with
information requests (if a request for
information is contained in the general
notice). AA appropriate time frame for
the PRP response to an information
request is generally thirty days from
receipt of the letter. Finally, the letter
should provide the name, phone number.
and address of the EPA representative
to contact.
C. Rl/FS and RD/RA Special Notice
Letters
Prior ta EPA'i conduct of the RI/FS
and RD/RA. the Regions should either
issue the special notice to PRPs or
provide PRPs with an explanation why
it was not appropriate to use the special
notice procedures. Issuance of the
special notice triggers a moratorium on
EPA's conduct of the Rl/FS and
remedial action. While the statute does
not impose a moratorium on EPA's
conduct of the remedial design, the
Agency will not generally conduct such
activities during the moratorium. The
purpose of the moratorium is to provide
for a formal penod of negotiation
between EPA and PRPs where-the PRPs
will be encouraged to conduct or finance
response activities.
The negotiation more ton urn may last
a total of 90 days for the Rl/FS and 120
days for the RD/RA if EPA receives a
"good faith offer" from PRPs within the
first 60 days of the moratorium. The
negotiation moratorium would conclude
after 80 days if the PRPs do not provide
EPA with • "good faith offer."
The initial BO day moratorium begins
on the date the PRPs receive the special
nonce via certified mail. In instances
where there is more than one PRP. and
PRPs are likely to receive the special
notice on different days, the date the
moratorium begins should be seven days
from the date the letters are mailed to
the PRPs. In either case, the special
notice must make clear when the
negotiation moratorium begins and
ends.
1. Whether To Issue RI/FS and RD/RA
Special Notice
EPA has the discretion to use the
special notice procedures when EPA
determines that a period of negotiation
would facilitate an agreement with PRPs
and would expedite remedial actions.
The Agency believes entering into such
negotiations would generally facilitate
settlements and plans to utilize the RI/
FS and RD/RA special notice
procedures in the vast majority of case*.
Then an. however, some
circumstances where it would generally
not be appropriate to use such
procedures. Such circumstances include
(1) where past dealings with the PRPs
strongly indicate they are unlikely to
negotiate a settlement. (2) where EPA
believe* the PRPs have not been
negotiating in good faith. (3) where no
PRPs have been identified at the
conclusion of the PRP search. (4) where
PRPs tack the resources to conduct
response activities. (5) where there are
ongoing negotiations, or (6) where notice
letter* were already sent prior to the
reauthomation of CARCLA and ongoing
negotiations would not benefit by
issuance of a special notice.
Special nonces mey be issued for
operable units of remedial actions. The
test for determining-whether to issue a
special notice for an operable unit ir
generally the same as for full-scale
remedial actions. The general
expectation is that separate special
notices will be issued for each separate
operable unit as long at issuing the
notice would facilitate an agreement
and would expedite the remedial action.
However, special notices may also be
issued for only major operable units or
may cover a senes of operable units if
appropriate under the crcumstances at
the site.
For example, if several operable units
will be conducted at a site as relatively
separate and distinct response actions.
it may be appropriate to consider using
separate special notices which would
trigger separate negotiation
moratoriums. If a series of operable
units will make up a remedial action it
may be appropriate to issue the special
notice to cover only the major operable
unitWor to cover several operable
units.
i. Notifying PRPs When Not Appropriate
To Issue RI/FS and RD/RA Special
Notice
In instances where EPA decides it is
inappropriate to issue the special notice.
section 122(a) provides for EPA to notify
PRP» i& writing of that decision. The
notice must indicate the reasons why
the Region determined that issuing the
special notice and entering into "formal"
negotiations was not appropriate. The
notice should be provided to all PRPs
that have been identified to date as well
as to the Regional administrative record
coordinator far placement in the record.
Such notices should be provided as soon
at practicable. In instances where the
Rl/FS or RD/RA have not yet been
initiated, the notice should be sent prior
to the initiation of such activities if
possible.
In addition, the section 122!a) notice
should be used as a vehicle for
informing PRPs that the Agency will
establish or has established an
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Federal Register / Vol. 53. No. 35 / Tuesday. February 23. 1988 / Notices
5303
administrative record conuining
technical document* supporting the
Agency i derision on the selection of
rtraedy. Tht notice should indicate that
the record it open for public inspection
and comment and should specify where
the record will be or has been located.
3. DO) Role in RI/FS and RO/RA
Negotiations
The Regions should notify the Chief of
the Environmental Enforcement Section
in the Department of Justice (DOf) prior
to issuing special notice letters where
settlement by a consent decree is
contemplated. A copy of this
memorandum should also be provided
to the Office of WasM Programs
Enforcement and the Office of
Enforcement and Compliance
Monitoring in Headquarters.
The memorandum to DO) should
indicate when the Region intends to
issue the special notice. Because most
RI/FS negotiations involve consent
orders, notice to DO) on the RI/FS is not
ordinarily necessary. However, where a
aite is in litigation or where settlement
by consent decree is expected. DOJ
should be notified at least 30 days prior
to issuing the RI/FS special notice. In
addition, where the resolution of the
matter by an administrative order is
expected to involve a compromise of
past or future response costs and the
total response costs will exceed
$500.000. DO) is to be notified. DOJ's
rote will be to review the compromise of
the claim pursuant to section 122(h](i)
but not to review the administrative
orderfor the RI/FS. For RD/RA
negotiations, the notice should be sent
to OO| at least 60 days prior to issuing
the RD/RA special notice. The
memorandum should also identify the
EPA Regional representative DO) should
contact.
in addition, the Regions should
consult with the Chief of the
Environmental Enforcement Section
prior to sending a copy of any draft
consent decree or any outline of a draft
consent decree to PRPs. The Regions are
encouraged to induce a draft consent
decree with the RD/RA special notice or
soon thereafter as discussed below.
4. Timing of RI/FS Special Notice
It is important that PRPs receive the
RI/FS special notice letter as toon as
practicable. Of greater importance, the
letter must be senf sufficiently in
advance of obligations for the RI/FS so
that negotiations do not delay the
initiation of the RI/FS by the Fund in the
event the negotiations do not result in
an agreement providing for the PRPs to
conduct or finance the RI/FS. Timely
receipt of the special notice will have a
significant effect OR the FRPi ability for
meaningful participation in formal
negotiations.
The RI/FS special notice letter should
be sent to PRPs no later than 90 days
prior to the scheduled date for initiating
the RI/FS. The scheduled date for
initiating the RI/FS refers to the date
funds will be obligated to commence
response activities. A minimum of 90
days is important for ensuring that the
negotiation' mortorium does not delay
initiation of the RI/FS in the event
negotiations do not result in a
settlement The time for service by mail
should be taken into account.
S. Timing of RD/RA Special Notice
The timing of the RD/RA special
notice letter will have a significant
impact on both the success of
negotiations and on EPA's ability to
move forward with implementing a
remedy without delay. As indicated
earlier, "formal" negotiations pursuant
to special notice are not the sole vehicle
for reaching settlements. "Informal"
negotiation* must occur throughout the
process and in advance of the special
notice. To assure that "formal"
negotiations are productive. EPA must
initiate PRP search and information
exchange activities as well as
"informal" negotiations as early as
possible.
The primary purpose of the special
notice procedures is to facilitate
settlements through negotiation. A
primary concern in determining when to
issue an RD/RA special notice is
whether there is a likelihood that
meaningful negotiations can be
conducted at a given stage in the
process. Another concern is that, to the
extent practicable, the negotiations must
be scheduled to minimize any delay in
the remedial design and remedial action.
A Anal concern is that negotiations be
carried out in a way that does not
undermine or have the appearance of
undermining the public participation
process.
This guidance establishes an
approach which identifies when the
Regions must generally issue the RD/RA
special notice letter. The Regions may.
however, adopt an alternative approach
tinder appropriate circumstances.
Appendix A contains illustrations of the
three approaches discussed below.'
• Tta MM »*ned dntcwd in *t Wlowmt
ducuMM* tad Oluitni** u> Appmdut A nftttt
"b*»i CM*" ictHcm* vhtfr rtnow ivtpeni* «nd
tnforcMMtit lemnntt in tsptcttd lo bt urrwd
out without d*i*y. For titmpl*. tht (mbix cwMMflt
ptnod luti x dtyi *nd don not itkt ir.te •ceouni
a. Gtmral Approach: Itsue tpeciol
notice wbtn rtiectt draft FS and
proposed p/c/J foffablic comment. The
Regions generally must issue the RD/RA
special notice when the draft feasibility
study (FS) and proposed plan ' are
released to the public for comment. As
shown in Appendix A. issuance of the
special notice with the release of the
draft FS and proposed plan triggers the
initial 00 day negotiation mortoniun.
The initial 60 day negotiation
moratorium begins at the start of the 30
day public comment penod and. in
conjunction with the first 30 days of the
60 day extended negotiation
moratorium, is concurrent with the
Record of Decision (ROD) review and
approval process. The remaining 30 days
of the extended negotiation moratorium
is concurrent with the initial phases of
the remedial design. EP.Vi ability to
sign the ROD is not affected by the
duration of the negotiation moratorium.
The ROD may be signed at any point
after the close of the public comment
penod and the preparation of the
responsiveness summary for the public.
In most cases, commencing formal
negotiations at the same time that the
draft FS and proposed plan are released
will properly balance the considerations
stated earlier relating to EPA's ability to
conduct meaningful negotiations, to
minimize delay in implementing the RD/
RA. and to maintain the integrity of the
public participation process. Under this
approach, formal opportunity for PRP
involvement would begin at an earty yet
concrete stage in the process. Early
participation may be especially -
advantageous ;n situations where PRPs
have not been-previously or
substantially involved in RI/FS
activities. In addition. PRPs and the
public would have knowledge of the
possible range of alternatives through
the draft FS and proposed plan prior to
"formal" negotiations. This information
is important for assisting the PRPs in
developing a meaningful "good faith
offer" (or conducting or financing the
RD/RA.
b. Alttmati\t Approach: Issue special
notict prior to reJeate ofdra1! FS cni>
prcpoitd plan for public comment.
Although the Regions generally will
issue the RD/RA special nonce when
• Tfc* prepottd pUn rtftn 10 '«« oub»c
t«nia»«iien donmtnt dtvwo^a »ur»u««< r. tht FS
•ftd tptoltet *nd ptov.dt» » brt! «i.«
•nltmd tlttnuiivt. A not etttnre
tht pfOVOMd H»n will b* cattniftte * i.
iortbciMum -C««d»nt« OB Ooeumtnutu Ottuwxu
•t Suotffvnd Sim" Ifiltfrta to •• n» *00
-------
53*4
Fexhral Register / Vol. 53. No. 35 / Tuesday. February 23. 1988 / Noticei
the drift FS and proposed plui are
relcttcd to the public for comment, the
Regions ire encouraged to isiue the
special nonce earlier in the proce»i if
tni« action would facilitate the prospects
/or reaching a settlement. If a Region
chooses to follow this approach, the
Region ihould include with the special
notice a summary or fact ahe«t of the
alternative! EPA has screened and the
alternatives the Agency la currently
considering.'
As shown in Appendix A. the RD/RA
special notice may be issued pnor to
EPA's release of the draft FS and
proposed plan. Issuance of the special
notice triggers the initial BO day
negotiation moratorium. The initial
negotiation moratorium is concurrent
with the review and release of the draft
FS and proposed plan. The initial
negotiation moratorium is completed
prior to the initiation of the public
comment penod. The public comment
period is concurrent with the Tint 30
days of the extended negotiation
moratorium. The remaining 30 days of
the extended negotiation moratorium is
concurrent with the ROD review and
approval process. The ROD could be
signed and the negotiation moratorium
could be concluded at about the same
time. EPA's ability to sign tht ROD is
not affected by the negotiation
moratorium. The ROD may be signed at
any point after the close of the public
comment penod and the preparation of
the responsiveness summary for the
public.
in many cases, providing special
notice at this early stage may be
inappropriate because too much
uncertainty would exist about the
remedy to allow for meaningful
negotiations. However, under other
circumstances it may be appropriate to
issue the special notice early in the
process, especially in situation* where
than is a relatively small group of PRPs,
it ia clear what the remedy is'likely to
be. end-the remedy ia not likely to be
controversial
Where circumstances permit issuance
of the special notice at this early stage.
an advantage to this approach is that
the ROD review and approval process
and the negotiation moratorium could be
concluded at about the same time. This
ummtrr or fact dMd *n tht
•iMfiwiivc* tk*i Mvt fawn Krn*»4 wd UM
•iMmatnrc* Uut «rt famaf eonudcfid t* mpwuini
w* (toliuunf Mfouauom ti Uu« Mriy tuft m dw
iniMdiit protan. Tfcu mta»iiiun mil b* netful»
PRP* • fr»«toffim tteir "sood Uxk efitr" tor
•Mticim or fliunaaf « mponoi icuxi **d will
W i*i*oruni for mfnmiim nth abMi dM
dirnuovu ih* Aftacy <• OM*i4*nii| *i ifet MM.
1W lUfiera theuld inditd* UM MMMMry of
•ftmMiivM or Itci MM i« ilw <4*unmnii
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Federal Rcy»t«r / Voi 53. No. 05 / Tuesday. February 23. 1968 / Notices
5305
Enforcement Tracking System (SETS).
Entry into SETS will faoliiate oar efforts
to trick site ecavtnes •««* to respond to
Congressional and other inqtnnes. __
Direc; 'n< gjonal input of dait into SETS
on notice Utter recipient* is planned for
FYiau.
It is. not oaceasary to provide copies of
each special notice to the administrative
record coordinator. S:ate representative.
State or Federal trustee, or headquarters
in instances where identical notices are
provided to multiple PRPs. Where there
-are multiple PRPs at a site, e copy of one
special notice with • lisa of other paraes
wa>o have received the letter would
suffice.
7. Contents of RI/FS and RD/RA Special
Notices
The RI/FS antfRD-'RA special notice
letters should contain the following
components: (a] A notification of
potential liability, [b) a discussron about
the special notice and subsequent
negotiation moratorium, fc] a discussion
about the response activities to be
conducted, [d] e copy of e statement of
work or workplan and a drift
administrative order on consent for the
RI/FS. (e) e copy of a draft consent
decree for the RD/RA (if possible?, [f) a
discussion a bo at whet constitutes a
"good faith offer" for the RI/FS. (g) a
discussion about what constitutes a
"good faith offer" for the RD/RA. (h) e
release of certain site-specific
infonr.aupn (where available and
appropriate!, (i) a demand for payment
of EPA costs incurred to date, (jj a
notification about the administrative
record, and (k) a deadline for response
to the letter and the name of the EPA
representative to contact.
a. Potential liability: The letter should
specify that PRPs. are potentially liable
for the costs of conducting the RI/FS or
the RD/RA. A detailed discussion about
potential liability is not necessary
particularly if th* RI/FS or RD/RS
special notice reference* the general
notice.
- b. Special notice and formal
negotiations: The latter should discuss
the purpose- of the special notice and the
subsequent negotiation moratorium. The
level of detail will depend upon whether
the PRP has received the general notice
and whether the general notice provided
an adequate discussion. At a minimum.
the letter should make clear that EPA is
inviting PRPs to participate in "formal"
negotiations for PRP conduct of the RI/
FSor RD/RA and that this letter
automatically triggers the formal
negotiation period, in addition, it is
important that the special notice
indicate the date the negotiation
moratorium will conclude in the absence
of and in the event of e "good faith
offer." Finally, the letter should explain
thai a consent order or consem decree
should be finalized by the end of the
mowomun.
c. Response actions ta be conducted:
The letter should identify the response
activities EPA piana to conduct at the
site and provide schedubd dates for
initiating, inch actmtres 3 appropriate.
d. Statement ef work or woekpiaa and
draft adminrstrmire order on consent
for rtt/FS special notice: The- letter
showid provide a statement of work or
workplen and draft administrative order
(AO) on consent Such information ts
crucial to PRPs in their development of a
"good faith offer" to EPA for conducting
or financing the RI/FS and for ultimately
facilitating settlements. The Regions are
encouraged to provide the draf: AO on
consent with the notice letter if
practicable. At a minimum, the letter
should contain a copy of the statement
of work with the expectation that the
draft AO will follow as soon as
practicable.
e. Draft consent decree for RD/fLA
special nouce: The letter should contain
a copy of the draft consent decree if
possible, it is important that PRPs have
the draft consem decree at the tan of
negotiations or soon thereafter since the
decree contains important information
which will -assist PRPs in developing
their "good faith offer" to EPA
f. ~Goodfajtb offer" for RI/FS: The
letter should indicate that a "good faith
offer" is a written proposal which
demonstrates the PRP's qualifications
and willingness to conduet or finance
the RI/FS. A "good faith offer" for the
RJ/FS should include the following:
• A statement of the PRPs willingness
to condut or finance the RJ/FS which is
generally consisted with EPA's
statement of work or work plan and
draft administrative order on consent or
provides" a sufficient basis for further
negotiations:
• A pangraph>by-paragraph response
to EPA's statement of work or workplan
and draf: administraave order on
consent
• A detailed statement of work or
workplan identifying how the PRPs plan
to proceed with the work:
• A demonstration of the PRPs
technical capability to undertake the-RI/
FS. This should-include a requirement
that PRPs identify the firm they expect
will conduct the work or than PRPs
identify the process they will undertake
to select a firm:
• A demonstration of the PRPi
financial capability to finance the RI/FS:
• A statement of the PRPs willingness
to reimburse EPA for the costs EPA
incurs in overseeing the PRP conduct of
the RI/FS as required by section
I04(a)(nand
• The name, address, end phone
number of the parry or steering
committee who will represent the PRP*
in negotiation*.
g. "Goodfaith offer'for RD/R.\: The
letter should indicate tfcet a "good faith
offer" is a written proposal which
demonstrate* the PRP* qualifications
and willingness to conduct or finance
the RD/RA A "good faith offer" for the
RD/RA should include the following:
* A statement of the PRPs wiltmgness.
to conduct or finance me RD/RA which
is generally consistent with EPA's
proposed plan or which provides a
sufficient basis for further negotianons
in light of EPA's proposed plan:
• A paragraph-by-paragnph response
to EPA's draft consent decree, including
a response ta other documents that may
have been attached to the decree such
as a technical scope of work for the
proposed plan or access or
preauthonzation agreements:
• A detailed "statement of work" or
"workplan" identifying, how PRPs plan
to proceed with the work:
• A demonstration of the PRPs
technical capability to undertake lie
RD/RA. This should include a
requirement that PRPs identify the firm
they expect will conduct the work or
that PRPs identify the process they will
undertake 10 select a firm:
• A demonstration of the PRPs
capability to finance the RD/RA.
• A sta tement of ihe PRPs willingness
to reimburse E?A for past response and
oversight costs:
• A discussion about the PRPs
position on releases from liability and
reopeners to liability, and
• Tha name, address, and phone
number of the party or steering
committee who will represent the- PRPs
in negotiations.
b. Information release; 1o the extent
such information is available and to die
extant such information has not been
previously released the letter should
contain information on the names and
addresses of other PRPs, the volume and
nature of substances contributed by
each PRP. and a ranking by volume of
the substances at the facility. Note that
the release of information with the Rl/
FSand RD/RA special notices is not
Intended to require the release of
information previously provided to
PRPs.
L Demand for payment; The letter
should include a demand that PRPs
reimburse EPA for the costs the Agency
has incurred in conducting response
activities at the site pursuant to section
). The letter should identify ?he
-------
5306
Ftdtrtl Register / Vol. 53. No. 35 / Tuesday. February 23, 1986 / Notices
action EPA undertook tnd lh« co»! of
conducting the action. Tilt Ittter should
•l«o indicate that tha Agency
anticipates expending additional fund*
on activittei covertd by this notice and
other ipecified future activities. Finally.
tha letter should demand payment of
interest for past and future response
costs incurred by EPA pursuant to
section 107(»). Notice letters should not
be delayed to obtain cost information
where such information has not been
previously collected.
j. Administrative record: The letter
should be used as a vehicle for
informing PRPs of the availability of an
administrative record containing
documents that form the basis for the
Agency's-decision on the selection of
remedy. The letter should indicate that
the record is open to the public for
inspection and comment. The letter
should u!*o indicate where the record
will be or has been located.
k. PRP response and EPA contact
person: The letter should encourage
PRPs to notify EPA of their interest to
participate in negotiations. The letter
shouid indicate that PRPs may respond
as a group through a steering committee
if a committee has been formed. In
addition, the letter should provide the
name, phone number, and address nf the
EPA representative to contact.
D. Conclusion of Negotiation
Moratorium and Deadline Management
for Rl/FS and RD/R.4
At the conclusion of the section 122(e)
negotiation moratorium, the Regions
should have a fully negotiated
administrative order on consent for thn
Rl/FS anil a fully negotiated consent
decree fur the RD/RA which has been
signed b> the PRPs. A signed document
is necessary to show that an agreement
has. in fcut. been reached.*
At the conclusion of the 120 day
moratorium for the RD/RA a
determination rriust be made on whether
to continue settlement activities.
whether the site should be cleaned up
using Superfund money, or whether to
initiate a section 106 enforcement
action. A continuation of settlement
activities may include seeking an
extension to the 120 day negotiation
moratorium as discussed below, or
sending a consent decree to the
Department of (ustice for lodging in the
appropriate district court.
•Prt-SAftA tuiddnct furdniriins an
•dminttinnvf otter it »m»Kkd ta -Sufwrfund
Aiimnitifinvt Order WwUfcop MM! GvrtMtu
MaUfute" MOM) and fordnmni • eonut suijanrc «•• IM*«| under OSWtX
Wweilvt
This could mean that the focus of
negotiations could change significantly.
requiring, additional time to reach
agreement with PRPs.
The second example applies to Fund-
lead sites, it may be appropriate for the-
Regional Administrator or the Assistant
Administrator to extend the 120 day
negotiation moratorium for the RD/RA if
non-enforcement activities at the site
(e.g. an extended public comment penod
or an extended ROD review and
approval process) cause a significant
delay in the Agency's ability to move
forward in implementing a fund-
financed remedy. An extension to the
negotiation moratorium may be
especially appropriate if there is reason
to believe a negotiated settlement is
imminent. In other words, if the Fund is
not ready to move forward in
implementing the remedy at the end of
the 120 day negotiation moratorium
there is no reason to conclude
negotiations if there is reason to believe
an agreement can be reached.
The third example applies to
enforcemeni-lead sues. It may be
appropriate for the Regional
Administrator or the Assistant
Administrator to extend the 120 aay
negotiation moratorium for the RD/RA.
after a section 106 litigation referral has
been prepared and referred to the
Department of Justice (DO)) for action.
In fact, the preparation and referral of a
case to DOJ may be an important
mechanism for providing the necessary
impetus for reaching a voluntary
settlement In many cases it muy In-
appropriate to issue a unilateral
administrative order concurrent wuh thr
referral
VI. Notice Letters and Negotiation
Moratorium for Removal Actions
The notice letter process for removal
actions differs from the notification
process for remedial action. As
discussed above, the notification
process for remedial actions involves
issuance of throe notice letters. The
notification process for removals will
involve only one notice letter which may-
or may not invoke the section 1221 e)
special notice procedures as discussed.
below.
A. Afoft'c* Letter*
1. Whether To Issue Notice for
Removals
The Regions should attempt to contact
PRPs prior to initiating a Fund-finaneed
removal action to inform PRPs of their
potential liability where EPA will incur
response costs or to secure s private
party response. This guidance
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Federal Regular / Vol. 53. No. 35 / Tueidiy. February 23. 1968 / No lice*
5307
encourages the Region* to seeTc PRP
response through a writtea notice letter
but the Region* mty contact PRPs
verbefly (with a wntten follow-up
notice). This it conns tent with the
guidance on "Inotnce of Administrative
Orders for Immediate Removal Actions'*
(2/21/WJ.
The Region* should issue notice
letters to readily identifiable PRPs for
removal actions tn the vast maionty of
cases. The content of the notice will
vary depending whether the notice will
be used simply to notify PRPs oi their
potential liability for an action EPA has
already tsrfcen or is about to take.
whether the notice will be used to
encourage a pnvete parry response
through "informal" negotiations (i.e.
negotiation* not triggered by the section
122(ef special notice procedures), or
whether the notice will be used as a
mechanism for invoking the section
122(e> special nonce procedcres which
provide for "formal" negouanor.s
between EPA and PRPs.
Z When to Use Special Notice
Procedure* lor Removals
The Regions should consider uimg the
section 122(ei special notice procedure*
only for those removals where the threat
is of a nature that is not necessary to
initiate an onsite removal action for at
least six months. The "six month
planning time pence" begins once a sita>
•valuation is completed. This means
that for the vast majority of removaJ
actions the Regions will not be required
to utilize the special notice procedures.
It is nof appropriate to utilize special
notices for most removal actions
because the subsequent moratorium
may interfere with the Agency's ability
to implement the remedy in a timely
manner. In addition, il may not be worth
expending the time and resources to
enter into formal negotiations when a
removal will be a relatively short tena
and inexpensive moons* action.
The Regions should include the
following factor* in their determination
of whether it is appropriate to utilise the
special notice procedure* for removals
with a six month planning lead timer fl)
Whether viable PRPs have been
identified (2} whether the PRPs art
expected to respond favorably to the
invitation to participate in negotiations
and to conduct or finance the removal
action. (3) whether issuance of the
special notice could delay
implementation of the removal action.
and (4) whether it may be more
appropriate to enter into "informal"
negotiations in lieu of "formal"
negotiations under section I22(el.
In determining the PRPs viability, the
Region should inquire about the PRPs
financial and technical capability for
conducting and/or financing the
removal action in an effective and
timely manner. In determining toe PRPs
willingness to undertake or finance the
removal action, the Region, should, at a
minimum, obtain a verbal agreement
from the PRPs pnor to issuance of the
special notice. In. determining, whether
the special notice may delay
implementation of the remedy or m
determining: whether to enter into
"informer rather than "formal"
negotiation*, the Regions should
consider whether the section 1221*}
negotiation moratorium would, tattrfar*
with other activities ai the site.
3. Notifying PRPs When Not Appropriate
To Utilize Special Notice Procedures for
Removals
EPA's decision on whether to use the
special notice procedures (or any
response achon is. clearly discretionary-
However, section 122{a) requires the
Agency to notify PRPs in writing when
the Agency decides not to utilize such
procedures. The removal notice provides
a convenient vehicle for informing PRPs
of EPA'i decision nor re urilfze the
special nonce procedures. The notice
should, therefore, inform PRPs of EPA's
decision not to utilize such procedures
when this deieimmetron has been made
and should provide an explanation for
that decision.
4. DO) Role in Removal Negotiations
The Regions should consult with the
Chief of the Environmental Enforcement
Section of DO] prior to"issuing a special
notice letter [or removal actions where
settlement by consent decree is
contemplated, or where the settlement is
expected to involve a compromise of
past or future-response costs and the
total response costs win exceed
S500.000. The Regions should consult
with DOJ pnor to releasing a draft
consent decree to PRPs.
8. Timing of Notice for Removals
A removal notice that does net invoke
the special nonce procedures shomld be
provided to PRPs as soon as practicable.
For removal notices that invoke the
special notice procedures, the notice
should be issued as early as possible but
no later than 120 days before the
scheduled date for initiating the removal
action. The scheduled date for initiating
the removal action is the date removal
extramural cleanup contractor funds
will be obligated and onsite cleanup will
begin.
The timing of a notice which invokes
the special notice procedures is critical
because issuance of the notice triggers
the subsequent 60 to 120 day
moratorium OB EPA'conduct of the
removal action. (The moratorium would
last only 60 days in instance* where the
PRPs do not provide EPA with » "good
faith offer"). Issuing the special notice at
least 128 days before EPA will begin the
removal ensures that the, subsequent 120
day moratorium does not affect EPA s
ability to implement the removal action
in the event negotiations do not result in
an afreeaeai for PRP cottduci of the
removal action.
fl. Recipients of Notice for Removals
The removal notice should be seat to
all parties where- there is sufficient
evidence to make a preliminary
determiaaUoft of potential natality
under section 107 of CERCLA, If a
Federal agency has been identified as a
generator at • facility not owned/
operated by the Federal agency, sunn
agency should be routinely notified like
other PRPs.
Copies of removal notices should be
provided to the Regional administrative
record coordinator, the appropriate
State representative, md to
headquarter*. Providing copies to the
administrative record coordinator is
important forensurmg that the nonce be
placed in the record. Providing copies fo
the State representative is important for .
ensuring that States are appropriately
informed about possible future
negotiations.
Providing copies to the Information
Management Section within the Progrem
Management and Support Office of the
Office of Waste Programs Enforcement
for entry into the Superfund ^^
Enforcement Tracking System (SETS I
Copies should be sent to OWPE nt the
same time they are sent to PRPs.
Providing copies to OWPE is esser.tui
for facilitating our efforts to track sue
activities and to respond to
Congressional and other inquiries.
It is not necessary to provide copies of
each removcl notice to the
admiaistratfve record coordinator. State
representative, State or Federal trustee.
or headquarters- in instances where
identical notices an provided 10
multiple PRPs. Where there are tr.ulr.ple
PRPs at a sits, a copy of one removal
notice- with e list of other parties who
have received the letter would suffice.
7. Contents of Notice for Removals
As indicated the content of the
removal notice will vary depending
upon whether the purpose of the letter is
to simply inform PRPs of their potential
liability or whether the letter will also
be used to provide an opportunity for
PRP involvement in negotiations either
through "informal" or "forma!"
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5308
Federal Register / Vol. S3. No. 35 / Tuesday. February 23. 1988 / Notices
negotiation*. The following highlights
the components that should be included
in the three different types of removal
notices. The specific content of each
component of the removal notice should
be essentially the same as described
earlier for Rl/FS and RD/RA general
and special notices, except where
otherwise specified.
a. Notice of potential liability: If the
purpose of the removal notice is simply
to inform PRPs of their potential liability
and to provide notice that the Agency
has or is ubout to take • response
action, the notice should contain the
following components: a notice of
potential liability: a discussion about
site response activities that have been
or will 6« conducted at the sue: a notice
on the svailability of an administrative
record: and a notice pursuant to section
122U) that the special notice procedures
will not be used.
The notification under section 122U1
should inform PRPs that the Agency will
not (or did not) use the section !Z2(e)
special notice procedures for this
particular response action and should
provide an explanation for that decision.
The letter should indicate that it is the
Agency's policy not to use the special
nonce procedures for removals uniess
there is a six month planning lead time
prior-to the initiation of the response
action. If the response action does
involve a removal with a six month
planning lead time but the Agency made
a case-specific determination not to use
the special notice procedures, the letter
should provide an explanation why the
use of such procedures was determined
to be inappropriate for that particular
response action.
b. Notire of potential liability and
opportunity to enter into "informal"
negotiations: If the purpose of the
removal notice is to inform PRPs of their
potential liability and to provide PRPs
with an opportunity to enter into
negotiations with EPA without invoking
the section 122(e) special notice
procedures, the notice should contain
the following components: a notice of
potential liability; a discussion about
site response activities that will be
conducted at the site: a copy of the
statement of work or workplan and draft
administrative order on consent: a
notification pursuant to section I22(a)
that the special notice procedures will
not be used: a request that PRPs notify
EPA within a specified period of time of
their interest to participate in
negotiations: a notice on the availability
of the administrative record: and
information on the EPA representative
to contact. The section 122|a)
notification should contain the same
information discussed IB the preceding
paragraph.
c. Notice of potential liability and
opportunity to enter into "formal"
negotiations pursuant to section 1221 e)
special notice procedures: If the purpose
of the removal nonce is to inform PRPs
of their potential liability and to provide
PRPs with an opportunity to enter into
negotiations with EPA using the section
122Je) special notice procedures, the
notice should contain the following
components: a nonce of potential
liability: a discussion about site
response activities that will be
conducted at the site: a discussion about
the special notice procedures and the
negotiation moratorium: a copy of the
statement of work or workplan and draft
administrative order on consent: a
discussion about what constitutes a
"good faith offer": a request that PRPs
notify EPA within a specified penod of
time indicating their interest to
participate in negotiations: a notice on
the availability of the administrative
record: and information on the EPA
representative to contact. The "good
faith offer" should contain essentially
the same components as described
above for the RD/RA.
B. Conclusion of Negotiation
Moratorium and Deadline Management
for Removals
At the conclusion of the section 122(e)
negotiation moratorium for removal
actions, the Regions should have a fully
negotiated administrative order on
consent which has been signed by the
PRPs. (Where appropriate, a signed
consent decree should be provided). A
signed administrative order on consent
(or a consent decree) will show that the
negotiations have been successfully
completed.
The expectation is that the
negotiations will be concluded at the
end of the 120 day moratorium and the
Regions are strongly encouraged to
conclude the negotiations within this
period of Ume. In instances where the
negotiations do not result in an
agreement, the Regions may seek an
extension to the 120 day moratorium.
issue an administrative order, or
proceed with a Fund-financed removal.
Note that the Regional Administrator
may grant an extension to the 120 day
moratorium only in limited and
appropriate circumstance*.
C. Administrative Orders and
Negotiation Moratorium for Removal*
In most instances, use of the special
notice procedures for removal actions
will not affect existing policy on issuing
administrative orders for removals since
the special notice procedures will be
issued for only a small portion of
removals. For details on the Agency's
policy on administrative orders refer to
the guidance on "Issuance of
Administrative Orders for Immediate
Removals" (2/21/84).
It is necessary, however, to modify
existing policy in one respect. In
instance) where Regions use the special
notice procedures for a removal action
and where issuance of an administrative
order is necessary and appropr.atc. the
Regions should not issue the order until
the end of the negotiation moratorium.
This ensures that the negotiation
moratorium will be used to negotiate
voluntary settlements.
VII. Disclaimer
The policies and procedures
established in this document are
intended solely for the guidance of
Government personnel. They are not
intended and can not be relied upon to
create any rights, substantive or
procedural, enforceable by any party in
litigation with the United States. The
Agency reserves the nght to act at
variance with these policies and
procedure! and to change them at any
time without public notice.
vm. For Further Information
For further information or questions
concerning this guidance, pleas: contact
Kathy MacKinnon in the Office of
Waste Programs Enforcement at FTS-
475-6770.
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A. General Approach: Issue RD / RA Special Notice When Release |
Draft FS and Proposed Plan i
I
o
Selection of Remedy Process
Conduct
RlffS
Review/
Release
FS/Pioposed
Plan
PiiWiC
Com
menl
Review
MOD
'
Conduct >
RD \
(
Node* and
NeocXUIIon
Moratorium
Extended
Negollallon
Moiatofiuni
Special Notice / Negotiation Moratorium
18 19 20 21 22 23 24 25
Timeline (Months)
26
27 28
I
i
8
I
29
•n
9
K
f
•
?
K
i
o
I
§
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OSWER * 9834.9
Federal Register / Vol. 53. No. 49 / Monday. March 14. 19M / Notice*
Office location and ttlephotw number.
Rm. 716. Crystal Mil) *2,1921
Jefferson Davit Highway. Arlington.
VA. (703-557-18081.
tU^tf MIXTAHV MtPOKMATION: Pursuant
to »ecnon 18 of the Federal Insecticide.
Fungicide, and Kodenticide Act (F1FRA)
(7 U.S.C. I36p). th« Administrator may.
at hn discretion, exempt a state agency
from any proviaioni of FIFRA if he
determines that emergency condition!
exist which require such exemption.
The Applicant hat requeued the
Administrator to utue a specific
exemption to permit the ute of an
unregistered herbicide. ( — )-2-|4.5-
dihydro-4-meihyl-4-(lmethylethyl)-5-
oxo-l/y-imidazol-2-yl)-5-efhyl-3-
pyndinecarboxylic acid (CAS 81335-77-
51. manufactured at Pursuit ™. by
American Cyanarnid Company, on
soybeans ir. Minnesota. Information in
accordance with -JO CFR Par: 166 was
submitted as part of this request.
The Applicant indicated that
Jerusalem artichoke poses « serious
threat to the Minnesota soybean
industry due to resultant reductions in
yields. This weed, if not controlled
produces numerous tubers which lie
dormant over winter and produce plants
the following spring. Only two
uvbicides (Paraquat and'Roundup) are
swelled for control of Jerusalem
artichokes in Minnesota soybeans.
according to the Applicant. Neither of
these herbicides are satisfactory.
according to the Applicant, due to
required delays m planting or ineffective
application techniques.
The Applicant indicates thai without
adequate control a 30 percent yield los*
for soybeans due to this weed wili
result. This would amount to
approximately 1.4 million dollars.
Producers are reporting that infestations
are increasing, and weed scientists are
concerned that the week will become
more widespread in the absence of
effective control measures.
Pursuit ™ will be applied by ground
postemergence to the crop at a rate of
0.06 pound active ingredient ptr acre.
This nonce does not constitute a
decision by EPA on the application
itself. The regulations governing section
18 require publication of receipt of an
application for a specific exemption
proposing use of a new chemical (i.e.. an
active ingredient not contained in-any
currently registered pesticide). Such
notice provides for the opportunity for
public comment on the application.
Accordingly, interested persons may
submit wntten views on this subject to
the Program Management and Support
Division at the address above. The
•mments must be received on or before
March a. 1968 and should bear the
identifying notation "OPP-180764 ." All
whiten comments filed pursuant to this
notice will be available for public
inspection m Rm. 236. Crystal Mall No.
2. at the addrest given above, from 8
a.m. to 4 p.m.. Monday through Fnday.
except legal holidays.
The Agency, accordingly, will review
and contider all commenti received
during the comment penod in
determining whether to issue the
emergency exemption requested by the
Minnesota Department of Agriculture.
Dated: February 28. IBM.
Edwia F. Tteworth.
Director. Ref ittrotion Qwiion. Office of
Petticidt Programt.
|FR Doc. M-M76 Filed J-11-W: 8:45 am|
IFRU-333S-5]
Superfund Program; Mixed Funding
Settlements
AOINCY: Environmental Protection
Agency.
ACTION: Request for public comment.
SUMMARY: The Agency is publishing the
guidance on "Evaluating Mixed Funding
Settlements under CERCLA" today to
inform the public and to solicit comment
on these types of settlements. Mixed
funding, at described, in part, under
section 122(b) of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980.
as amended by the Superfund
Amendments and Reauthorization Act
of 1966 (SARA) (hereinafter referred to a
"CERCLA") refers to three types of
arrangements in which money from
potentially responsible parties (PRPs)
and the Hazardous Substances
Superfund ("the Fund") is used to
conduct a response action. This
guidance first descr.be* a process for
determining whether a settlement
Involving mixed funding in any form is
appropriate. It then describes issues
related to each of the three types of
mixed funding individually. as well as
the procedure required for approval of
mixed funding settlements.
OATC Comments must be provided on or
beforrMay 13.1988.
AOOftSftS: Comments should be
addressed to Kathy MacKinnon. L'3.
Environmental Protection Agency.
Office of Waste Programs Enforcement.
Guidance and Oversight-Branch (VVH-
52?), 401 M Street S\V» Washington. DC
20(60.
PO* numo* MPomunoN CONTACT
Kathy MacKinnon. U.S. Environmental
Protection Agency. Office of Waste
Programs Enforcement. Guidance and
Oversight Branch. WH-S27.401 M Street
SW. Washington. DC 20460. (20214r$-
6770.
SUffrXUif NTA«V H*omumo*e The term
"mixed funding", as used in this
document, refers to three types of
arrangements in which the Government.
at its discretion, agrees to conduct and/
or pay for i portion of a response action.
In one arrangement, as described in
section 122 of the cost of a cleanup
at a site. For mixed funding settlements.
criteria of particular importance include
the strength of the liability case against
settlors and any non-settlors, the size of
the portion for which the Fund will be
responsible, and other mitigating and
equitable factors.
The use of mixed funding does not
change EPA's established criteria for
evaluating settlement offers. As slated
in the Interim CERCLA Settlement
Policy, liability under CERCLA is strict.
joint and several unless the PRPs can
dearly demonstrate that the harm at the
site is divisible. Thus, approval of a
mixed funding settlement will be a
policy decision, made in the
Government's discretion, based on an
evaluation of the totality of the
circumstances in each case.
Mixed funding settlements represent
one portion of a comprehensive effort to
facilitate settlements of enforcement
actions under CERCLA. In particular. cV
minima settlements (sections 122(g)).
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82SO
Federal Register / Vol. 53. \o. 49 / Monday. March 14. 1988 / Notices
covmanit not to sue (section* 122(0).
and non-binding allocation* of
responsibility (NBARi) (*ections
122(e)(3)) may be used in conjunction
with mixed funding at a maaru of
increasing the flexibility with which
CERCLA case* may be settled in order
to expedite cleanup*.
The Agency encourages public
comment on thu guidance, especially
related to particular types of mixed
funding arrangements. The Agency will
reevaluate this interim guidance in
response to public comments.
The interim guidance follow*.
Datt: Ftbrvary 28.19M.
). W. MeKerew.
Acting Atrittant Adminiitrctor for Solid
Wat t» and Emergency Rttponie.
Dair February li 196B.
Tboeaa* U Adatai. It-
AM/I to/if Administrator for Enforcement and
Compliance Monitoring.
October 20.1967
Memorandum
Subject: Evaluating Mixed Funding
Settlements Under CERCLA
From: ]. Win»ton Porter. Assistant
Administrator. Office of Solid Waste
and Emergency Response
Thomas L Adams. Jr.. Assistant
Administrator. Office of Enforcement
and Compliance Monitoring
To: Regional Administrators. Regions I-
X
/. Introduction
This document provides guidance for
use when a party proposes, as part of a
settlement negotiation, that both private
and Fund resources be used at a site.
This type of arrangement is generally
referred to as a "mixed funding"
settlement. Section 122(b) of the
Comprehensive Environmental
Response. Compensation and Liability
Act. as amended by the Superfund
Amendments and Reauthorize lion Act
of" oM (hereinafter cited as "CERCLA")
prvndes explicit authority for the
Government to enter into these types of
arrangements.
The primary goals of thu guidance are
to
(1) Encourage the Regions to consider
mixed funding settlements, based on the
statutory approval of these settlements
in section 122(b) of CERCLA;
(2) Present a method for Regional
enforcement personnel to analyse mixed
funding in the context of a settlement
offer, and
(3) Indicate broad Agency preferences
by specifying acceptable and poor
candidates for mixed funding in general.
Historically, the term "mixed funding"
has been used to describe three types of
arrangements. Section 122(b](l) of
CERCLA describes one mixed funding
arrangement, in which one or more of
the potentially responsible parties
(PRPs) agree to perform a response
activity and the Agency agrees to
reimburse those PRPs for a portion of
their response costs. In such cases, the
statute provides that the cost incurred
by the Fund be recovered from non-
settlors when possible.
Settlement agreements involving
cleanups by PRPs and reimbursement of
their response costs require the Agency
to "preauthorize" the claim against the
Fund prior to the initiation of the
response action. The term
"preauthonzation" refers to the
approval that must be granted by the
Agency prior to cleanup actions if a
claim for response costs is to be
considered against the Fund. If
preauthohzation is granted, it serve* as
an Agency commitment that, if response
costs are conducted pursuant to the
settlement agreement and the costs are
reasonable and necessary.
reimbursement will be available from
the Fund as dictated by the agreement.
subject to the availability of
appropriated monies.
Two other kinds of settlement
agreements also constitute forms of
mixed funding, but do not require
preauthonzation. Section 122(b)(3)
describes one type of arrangement, in
which-the Agency conducts the response
action and the PRPs pay the Agency for
a portion of the costs. This type of
settlement is known as a settlement for
cash, or "cash-out" A third type of
mixed funding, known as "mixed work."
involves an agreement which addresses
the entire response action, but the PRPs
and the Agency agree to conduct and
pay for discrete portions or segments of
the response action. The term "mixed
funding", as used in this document
applies to any of the aforementioned
types of settlements. It should be noted.
however, that section 122(bX4).
concerning future obligation of the Fund
for remedy failure, only applies to mixed
- funding in the form of preauthohtation.
as described ia section ISJbXl).
As noted above, the 19W
Amendments to CERCLA included an
explicit statutory authorization of mUnd
funding settlements. Prior to these
Amendments, the primal)- document
which made reference to mixed funding
was the Interim CERCLA Settlement
Policy (30 FR S034). This policy aei out
ten criteria to use when evaluating a
settlement offer for less than 1003 of the
cost or cleanup at a site. In mixed
funding settlements, the PRPs agree to
pay for a portion of the response cost.
and may conduct some or all of the
response action.
A major portion of this guidance
addresses the application of the Interim
Settlement Policy- to mixed funding
settlements. Section II outlines the key
principles underlying the Agency s
Interim Settlement Policy, and the role
of mixed funding within these general
principles. Section III tSn provides an
approach for applying the ten settlement
criteria to mixed funding settlement
offers in general (e.g.. without regard to
any specific funding arrangement.) Thu
section first highlights factors of key
importance to mixed funding
settlements, and then suggests the
Agency's preferences among vanou*
combination* of these factors.
Section IV identifies critena to be
used to determine if a particular type of
mixed funding is appropriate for a site.
and then li*ts secondary considerations
related to all mixed funding settlements
Section V outlines the general proretiure
for review and approval of mixed
funding.
U. The Role of Mixed Funding in the
CERCLA Cleanup Program
The Interim CERCLA Settlement
Policy identified negotiated private
response actions as an essential
component of the Agency's overall
program for obtaining cleanup of the
nation's hazardous watte sites. This
program, to be effective, depends upon a
balanced approach, which includes a
mix of Fund-financed cleanups.
enforceable settlement agreements
reached through negotiations, and
litigation. Expeditious cleanups reached
through negotiated settlements are
preferable to protracted Jitigation.
Section 122 of the 1986 Amemdmcnts.
which is devoted entirely to settlement
issues, indicates Congressional
affirmation of the emphMis in the
Interim Settlement Policy toward
increased flexibility in settling CERCLA
cases in order to expedite cleanups. Lik>
the Interim Settlement Policy, section
122 covers a wide range of mechanisms
designed to promote settlement*. In
particular, in section 122(b|. Congress
acknowledged the need to consider
settlement* for leas than 100% of ;he
costs of cleanups ..... by using
monies from the Fund or. behalf cf
parties who are unknown, insolvent.
similarly unavailable, or refuse to
settle." (See the Conference Report on
Superfund Amendments and
Reauthorize tion Act of 19M. 99 Cong..
Id SMS. Report 99-982 pp. 183. 252
The Agency encourages the use of
mixed funding to promote settlement
and hazardous site cleanup. For
example, preauthonzation offers the
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Federal Register / Vol. 53. No. 49 / Monday. March 14. 1986 / Notices
8281
advantage of PRP performance of the
response activity and funding of a
substantial portion of the response
costs, thus conserving Agency resources
fot .M at other sites. In addition, section
lZ2(b)Cl) requires the Agency to make
all reasonable effort* to recover these
costs. The Agency will therefore pursue
noniettlora to make the Fund whole.
unless it would be unwarranted to
undertake such efforts. To the extent
that mixed funding reduces the number
of PRPs to be sued in such cost recovery
cases, it will also reduce the Agency's
costs for litigation.
Support of mixed funding us a
settlement tool, however, does not imply
ihat the'standard and scope of liability
under CERCLA has changed. As
established by court decisions prior to
the 1986 Amendments. PRP liability
under CERC1A remains strict, joint and
several, unless the PRPs can clearly
demonstrate that the harm a: the site is
divisible. Thus, the Agencv will assess
mixed funding settlements in a manner
consistent with the Interim Settlement
Policy, where complete clean-..? or
i-ullection of 100% of costs remains a
primary goal.
For example, the Agor.ey ».:! ~ot
approve mixed funding $irr.pi> on thr
linsis that a share of wastes ni a sue
may be attributable to an unknown or
financially non-viable party The
Agency may conduct an allocation of
liability among PRPs at a site, or may
evaluate the PRP s allocation and allow
volume to be considered as one factor
used to assess the reasor.dbir>ncss.of me
PRPs' offer. However, the iivmi.ibilii) nr
the urr.ouiit of an\ Fund-financing fur .>
•••iirticulur site wiU'r.ut bo dt-annrtom
-olely on consistency w.'.'r. r.r-.;.
volumetric or "fair-share" < th« ter.
settlement criiiria to settlement ofli;r» IP
which PRPs hi.vc rc'tuie*;rd *om« form
of mixed funding. The Asrsry uot-s noi
intend to limit the avaiUuil.U of mixed
funding to the !:ic:i patterns dnM.r.!ied.
below, but recommends the following
approach as a means of focusing the
analysis of the settlement Regions must
continue to consider the totality of the
circumstances for each mixed funding
settlement offer
In settlement offers in which any form
of mixed funding is proposed, factors of
primary importance include;
• Strength of the li«l»lny cust- .lymnsi
settlors and any non-settlors. This factor
includes:
— Utigalive risks in proceeding to irinl
against settlors, and
—The nature of the can* remaining
against non-settlors after the
settlement:
• Government's options in the event
settlement negotiations. fail (e.g.. if «
state cost-share will be available for a
Fund-lead action):
• Size of the portion or operabl: unit
for which the Fund will he responsible
(or the amount of the PRP"s offer):
• Good-faith negotiations and
cooperation of settlors and other
mitigating and equitable factors
The following examples indicate the
combinations of the above factors which
may be considered acceptable
candidates for any type of mixed
funding, and those cases considered
poor candidates for mixed funding:
Acceptable Candidates for Mixed
Funding
The best candidates for mixed funding
are cases in which the following
features are present:
• The potential portion or operable
unit to be covered by the Fund is small.
or the settling PRPs offer a substantial
portion of the total cost or cleanup, tr.
this context, substantial portion muy be
defined as a commitment by the PRPs to
undertake or finance a predominant
portion of the tote! remedial acLor..'
• The Government has a strong cjsc
against (manually viable non-jeiiimg
PRPs. from which the Fund portion may
be recovered.
While this combination of factor*
represents the optimum conditions
under which mixed funding may be
approved, cases wili more typically
involve one or more variations of this
scenario. Thus, the Agency anticipates
that a range of cases will be considered
acceptable candidates for mixed
funding. The following examples
indicate the circumstances ur.der whirh
a mixed fundina sememe:-: -.u
represent thi- GovrT.r-cr-« r"tfiri-o
alternative.
f.re.TT""- nr:"' A Vi; i"": i..->» ,I:M.::«>'
potential settlors ni;:< :r..: 't::\ WP-C^ in
fjvor of lilij.mcn. espc-c -m :f tht case
against non-v.-;tlots t» MI.-.:K UuwevKr.,.
mixed funding settlement ~-.\ st.I! IT
acceptable upon evrtLai."? of
additional factors, such us:
• The settling PRPs offer to conduct.
or pay for a substantial portion of the
response:
• Public interest considerations (r.ft
if settlement would expedite cl«*M.iup
and/or :i swnon IfM FnrH-finjinccd
action is not fcftsiblftl.
• Whether netllon have negntiuted in
good-faith:
• The Government'* time and
resources snved by simplification or
avoidance of litigation.
Exempt* two: If a substantial portion
ohhf w.isic »t« site cannot be
1 At iKHct: ;.:i;r. tht Afvncv t pr«l«Hf)!C* it''»
iht ntPi to pm'nm ihr iMyoKM aetton raihrr
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Federal Register / Vol. 53. No. 49 / Monday. March U. IMS / Notices
attributed to known and financially-
viable parties, as determined for
example, by a preliminary nonbmding
allocation of responsibility by the
Government), the Agency may initially
consider pursuing the recovery of all
costs under |oint and several liability.
However, if the litigative risks appear
substantial, a mixed funding settlement
may represent more than the
Government would recover in litigation.
especially when the cost and time
required for litigation is considered.
Litigative nsks which may weigh in
favor of settlement include:
• Weak evidence against financially
viable potential settlors:
• Equitable considerations which
weigh against the imposition of joint and
several liability.
In addition, if the hazard at the site is
senous and nc Fund-financed response
is possible, a delay in the response
action pending the conclusion of
litigation might represent an
unacceptable risk to the public and the
environment.
Poor Candidates for Mixed Funding
Cases considered poor candidates for
mixed funding have the following
features:
• The case against settling parties is
strong, and thus the potential for
successful litigation is high:
• The potential Fund portion is large
(e.g.. the potentially settlors' offer is
insufficient.)
These factors do not automatically
preclude mixed funding for a case.
However, for mixed funding to be
seriously considered in such instances.
other compensating factors must be
present, such as the ability of the
settlors to initiate the response action
more quickly than the Government in a
Fund-financed action.
IV. Selection of the Mixed Funding
Technique
Aa noted in the above Introduction.
the term mixed funding has been used to
refer to three different types of
settlement arrangements:
(1) Preauthoniation. in which the
PRPs conduct a response action and the
Agency agrees to allow • claim against
the Fund for a portion of the response
costs:
(2) Cash-outs, in which the PRPS pay
for a portion of the response costs up
front and the Agency conducts the
response action:
(3) Mixed work, in which the PRPs
and the Agency each agree to conduct
discrete portions of the response
activity.
Once Regional enforcement personnel
heve determined that a mixed funding -
settlement is appropriate, baaed on the
settlement criteria as described in
Section III and the Interim Settlement
Policy, then the Agency must decide
which type of mixed funding best suits
the situation at hand. Among the three
maior types of mixed funding, the
Agency generally prefers
preauthonzation. since the PRPs
conduct the response action. However.
as noted below, cashoms and mixed
work may be appropriate under certain
circumstances.
Preauthonzation
The assessment and approval of
preauthonzation. once a mixed funding
settlement is approved, is a two-part
process. The first stage, as described
below, is the determination by the
Agency enforcement personnel that
preauthonzation is appropriate in the
context of the settlemeni as a whole.
The second stage represents the actual
process of preauthonzation of the claim
against the Fund by the Office of
Emergency and Remedial Response
(OERR) (see Section V.) The Response
Claims regulations, which are presently
in draft form, will provide guidance on
the preauthonzation process itself.
(a) Technical and timing concerns
related to preauthonzation.
For the first stage of the review, the
nature of the proposed remedy and the
PRPs' ability to perform it in a timely
manner are major factors to consider
when assessing a settlement offer which
contemplates preauthonzation. In
addition, the size of the PRPs' portion is
important. When-PRPt are responsible
for a sufficiently high percentage, they
will have a strong economic incentive to
keep the actual response costs within or
close to estimates. The nature and the
severity of the threat posed by the site
may also weigh in favor of settlement if
preauthonzation would increase the
speed at which the hazard could be
addressed. For example, prompt
initiation of the remedial action would
be of particular importance for sites
which are not currently scheduled for
full Fund-financing.
On the other hand. Regional
negotiators must also consider the timi;
required for the preauthonzation
process itself when determining if
preauthonzation is appropriate for
particular types of response actions.
While the Agency has set a goal of
completing review of individual
preauthonzation application* within a
45-day period, this timing limitation will
vary on a case-by-case baits. The
Agency is unlikely to have time to
consider preauthonzation requests
when action is required to even an
immediate threat to the public health or
the environment therefore, no
reimbursement would be possible.
Regions should anticipate the processing
time in managing negotiations.
(b) Availability of preauthonzation for
various response actiaos.
For agreements involving activities
such as an Rl/FS or a removal.
preauthonzation in general will not be
warranted, because the process of
preauthonzation will prove too
burdensome for the small amounts or
shon time-frames often encountered in
these cases. Limited exceptions may be
considered in unusual circumstances, aa
where preauthonzation will facilitate a
broader agreement (e.g.. an ares-wide
RJ/FS) which will be less resource
intensive than several agreements of
smaller scope. A large, extensive
removal (e.g.. greater then 52 million)
may also qualify as an extraordinary
circumstance justifying
preauthonzation. However.
Headquarters approval must be
obtained before preauthonzation may
be offered during negotiations for such
activities.
(c) Covenants not to sue for
preauthonzation settlements.
For preauthonzation of remedial
design and remedial action (RD/RA)
activities, the statute contains a specific
provision related to remedy failure.'
Section 122(b)(4) ofCERCLA states that
for cases involving preauthonzation. as
described in section 122{b)(l). (he Fund
will be responsible for costs of remedy
failure, up to a proportion equal to that
contributed for the original remedial
action. This section also states that the
Fund portion may be met either through
Fund expenditures or by recovering «uch
costs from parties who were not
signatories to the original agreement.
However, it should be noted that
remedy failure due to negligence of the
PRP will not trigger any Fund obligation.
In any case, a covenant not to sue
granted in preauthorixe settlements
must comport with Agency guidance on
covenants not to sue. as cited above.
(d) Settlement provisions needed to
process claims.
Settlement agreements involving
preauthonzation should contain the
following restrictions to facilitate the
processing of claims: •
• Settlement agreements should
specify a percentage of the total
estimated coat to be Included in the
preauthonzation claim for PRP
reimbursement subject to a maximum
dollar limit.
• Claims agaisnt the Fund are not
subject to the section 104(c)(3)
requirement that States contribute 1C
percent of the cost of the remedial
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Federal Register / Vol. S3. Nu. 49 / Monday. March 14. 1988 / Notices
8283
action. Howtvir. proipcctivc claimants
are encouraged to Hie • Itttir of
cooperation from the Suit along with
their request for praauthoriztfiion. Thi*
If Her should describe any agreemenu
resulting from the claimants'
consultation with the State, including
any Statt assurance of cooperation with
the remedial action. Further, ull actions
conducted pursuant to a preauthonzed
claim must be consistent with the NCP
and the proposed draft Response Claim
regulations, when promulgated.
• Claims may be Lied only for costs
incurred alter the date of
preauthorization. Parties will not be
eligible to make a claim against the
Fund until the entire cleanup or agreed-
upon prcauthonzed phase [e.g.. an
operable unit) it completed according to
specifications set out in the settlement
agreement and the Preauthonzation
Decision Document.
• Applicants roust demonstrate that
their proposed response costs arc
reasonable. The applicant should justify
«ny proposal to perform in activity in-
house, o. to contract it out. Applicants
may look to Federal and State
procurement practice* for guidance on
how to meet EPA's objectives in the
area of contracting and subcontracting.
• PRPs must be financially and
technically capable of implementing all
of the agreed upon response action.
Parties may be required tb submit
financial assurances or performance
bonds' to substantiate their financial
capability for completing the response
action.
Cash-out;.
For settlement proposals invoking a
cash-out by some of the PRPs. the nature
of the remedy and the public interest
factors are generally not decisive, since
the Government will be conducting the
response action. Thus, of the criteria m
the Interim Settlement Policy noted in
Section UL the key issues in the**
agreement* include:
• The percentage of the total costs to
be paid by settlor* (i.t- a substantial
portion should be offered);
• The Agency a level of confidence in
information related to liability and cost
estimates at the tune of settlement
• Euuituble considerations for both
the settling and non-settling parties.
including the nature of any covenants
not to sue in the cash-nut settlement.
in general cash-out settlements may
occur at any stage of the remedial
process. Such offers should generally be
assessed in light of the criteria in Part IV
of the Interim CERCLA Settlement
Policy. It is important to note that once
a Fund-lead response action is ongoing.
the potential benefit of mixed funding us
a means of expediting cleanup ;s lately
eliminated. In addition.a cash-out of
some of the PRfs during the response
action may serve 10 fragment the
Government s enforcement proceedings.
since cost recovery will generally be
pursued once the remedial action is
completed. Other tMues related to cash-
outs include:
(a) Information needs reUted to cash-
out settlements.
One example of the use of cash-out
settlement* could involve PRPs which
have contributed a low percentage of
the waste to » sit*, and are not
technically or financially capable of
conducuag the enure response action
(e.g. preauthorization is not an option.)
In order for this type of settlement to be
appropriate for both settling and non-
settling responsible pa/tie*, the Agency
should have sufficient information to
determine a settlement amount for the
settlors as a group- This amount should
be based on the Settlement Policy, and
should include their waste contribution
and other relevant information. Thus.
the Agency should have a fairly high
level of confidence in the inform*Don
concerning the liability at the sue and
the expected cost of the remedy m order
to determine; an appropriate cash-out
settlement.
The settlement may include a risk
premium which may partially offset the
Government's risk due to uncertainties
such as remedy failure or cost overruns.
as well as uncertainties which may be
present if the necessary information is
less than complete.
(b) Covenants not to sue in c«sh-uut
settlements.
The sufficiency of the Agency »
information related to PRP liability and
the nature, siapr of development and tht-
cost of the potently! remedy has
particular bearing on the scope of any
covenant not to sue in cash-out
settlements, in general if the Agency
has only limited information in these
areas («4- if the cash-out settlement
entered into early in the remedial
process), then covenants not to sue
should contain appropriate reopeners to
reflect this uncertainty. In reference to
these reopeners. it is important to note
that the obligation of the Fund to pay for
a portion of any costs incurred due to
remedy failure, under section lC2Jb)(4).
is limited to mixed funding in the form of
preauthorizaUwa under section I22(b)(1).
Thus, for cash-outs, the statute does not
limit the potential PRP liability for costs
resulting from remedy failure. Any
future obligations will be specified in
the cash-out agreement. inUuding the
covenants not to sue. Further guidance
concerning covenants not to sue a
provided in the Agency guidance
"Covenants Not to Sue Under SARA"
cited above.
In addition, although cash-out
settlements need not involve o> ni.-n/m.i
parties, as defined by section I22|g).
similar analytical factors are important
in both instances. Thus. Agency
guidance entitled "Interim Guidelines on
Settlements with De Minima Waste
Contributors under Seen on 122(g) of
SARA", cited above, may also be
helpful for cash-out settlements.
(c) State cost-Share requirements for
casrt-oyt settlements.
When the Federal government uses its
response authority to conduct a
remedial action, section 10t(c)(3) of
CERCLA requires that the State "pay(s|
or will assure payment" of 10% of the
remedial action, including all future
maintenance, or SO* or greater for sites
involving a state operated facility. Since
cash-out settlements involve PRP
payment toward a federally-conducted
remedial action, the applicable cost
share is required for these settlements.
The cost-shore will be calculated using
the total remedial costs, rather than the
percentage of the Fund share alone.
There are a variety of ways that the
State can "pay or assure payment" of
the appropriate cost-share. For example.
the State, thi Federal government and
PRPs may enter into an agreement under
State law and CERCLA in which the
PRPs pay 10% to tht State, and the State
obligates the money for use at the sue in
question. The State may also use its own
funds to pay for any portion of its share
that cannot be paid for by PRPs. In
gener.nl. cash-out settlements should
only be considered when she litigation
leum is reasonably certain that the Siute
is Willing and able to pa> (or its If".
share, although the cost-share need nut
be part of the consent decree between
the Federal government and the PRPs.
Mixed Work
Mixed funding in the form of mixed
work may be appropriate for cases m
which the Agency can identify discrete
phases or operable units of the response
action. One common example involves a
settlement with the PRPs to conduct the
RO/RA once the Agcnu has conducted
the Rl/FS.
A second, more complicated mixed
work arrangement could involve sn •
agreement in which the Agency and (he
PRPs agree to conduct separate pontons
of an area-wide Rl. In this example, the
Agency' might egree to conduct soil
testing if the PRPS conduct ground-
water monitoring. Regional enforcement
personnel should be reasonably assured
of PRP cooperation and the ability to
identify m detail tha individual activittes
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8284
Federal Register / Vol. 53. No. 49 A Monday; March T4,-1888 / Notices
for which etch party will be responsible
before entering into any mixed work
teitlemem. In addition, any covenants
not to sue in mixed work settlement]
should be clearly limited to the operable
units addressed in the agreement. Mixed
work should be avoided where there is a
significant potential for delays in
response actions as a result of
inadequate coordination or potential
conflicts. Thus, due to the high potential
for technical and legal complications.
mixed work in the form of mixed
construction should generally not be
considered.
Additional Considerations Regarding
Mixed Funding
Operation and Maintenance: For
preauthorized settlements, full
responsibility for payment of operations
and maintenance (O & M) activities
remains with the PRPs. In some
circumstances, a State may agree, as a
party to the settlement, to manage 0 4
M activities which are financed by
PRPs. The Agency will generally resort
to enforcement actions rather than
committing Fund money for cleanup at
the site when both the PRPs and the
State refuse to be responsible for 0 & M.
Actions Against Non-settlors: It is the
policy of the Department of Justice that
the Federal government will not commit
in a consent decree or other agreement
to sue other non-settling parties.
Consistent with this policy, mixed
funding settlement agreements should
not contain provisions which commit the
Federal government to sue non-settling
partjes at a particular site. At most, the
agreement may indicate that the
Government has a "present intention" to
sue non-settlors, subiect to the exercise
of the Government's enforcement
discretion. Such provisions, however.
must be approved by Headquarters and
the Department of Justice (DOJ) on a
cat«-by-case basis, and may not be
offered in negotiations until such
approval is obtained.
Reservation of Rights: Potential
settlors occasionally will agree to allow
the Government to rts«rve the right to
bring an enforcement action against
them, contingent upon • certain event.
such as an unsuccessful enforcement
action against non-settlors. Such an
arrangement is not desirable, although it
may be acceptable in limited
circumstances. Such an offer should not
be used by settlors as a means of
reducing the amount offend up front In
addition, the negotiation team should
consider the practical problems that
might arise in implementing such an
arrangement including statute of
limitation iaaues and fragmented
enforcement actions involving
successive suits covering similar issues.
The Government generally prefers to
settle for a substantial portion up front.
rather than being required to bring a
second enforcement action against
settlors for an additional amount.
Documentation: Forpreauthorization
and mixed workcases in which the
Agency will take enforcement actions
against non-settling parties, the Agency
must assure that the settling PRPs agree
to provide the necessary documentation
and any other assistance required for
support of the cost recovery cases. This
assistance may include an agreement to
provide witnesses to substantiate
response costs. Government oversight
will also be required, not only to assure
that reimbursement by the Government
is appropriate, but also that PRP
documentation constitutes sufficient and
admissible evidence for the cost
recovery cases.
V. Procedural Considerations for
Review ofSeulemenu Involving Mixed
Funding
As noted in Section I. consideration of
a site for any type of mixed funding
involves a two-stage process. The site
Tint should be evaluated to determine if
an offer for a mixed funding settlement
in general (e.g.. without regard to the
particular funding arrangement) should
be accepted. This analysis includes the
settlement criteria, with the hypothetical
examples in Section FII indicating the
Agency's preferences among vinous
combinations of factors. Once the
Regional enforcement personnel
determines that a mixed funding
settlement will be acceptable, then the
factors noted in Section TV should be
used to evaluate whether a particular
type of mixed funding is appropriate.
The Agency has developed guidance
on streamlining and improving the
CERCLA settlement decision process.
which, in part, highlights the need for
improved preparation for negotiations
and for a more systematic management
review process. (See -Interim Guidance:
Streamlining the CERCLA Settlement
Decision Process*'. Porter/ Adams. Feb.
12.1987.) In keeping with the go»ls of
this unproved process. Regions should
conduct both stages of the mixed
funding analysis as early as possible
(e.g~ prior lo the appropriate special
notice.)
Timely Headquarters and DO)
notification is particularly important for
cases involving preauthorixation, since
the use of preauthorization in
settlements requires both the approval
of the settlement for preauthornation. as
described above, and the review by
OERK of the request for
preauthorization itself. Early DOJ
involvement is necessary in nixed
funding negotiations, as it is for other
types of negotiations. While the
preauthorization process need not be
completed at the time of settlement, the
settlement document must describe the
major parameters of the proposed
preauthorizarion agreement. Therefore.
OERR should be contacted once the
mixed funding analysis has been
completed and the Region supports
further consideration of
preauthorizan'on. For further information
on the draft Response Gaims
regulations and the procedure for
preauthorization with OERR. contact
William 0. Ross. Office of Emergency
and Remedial Response (WH-S46). (FTs.i
Issues which cannot be resolved at
the staff level may be raised to the
Settlement Decision Committee (SDC). a
Headquarters-based review panel. Like
all consent decrees, mixed funding
settlements will require final approval
by the Assistant Administrator (AAJ for
the Office of Solid Waste and
Emergency Response (OSWER). the AA-
OECM. and the Assistant Attorney
General for Lands and Natural
Resources. If the amount to he paid by
the Fund exceeds $750.000 or 10* "of the
total response cost (whichever is
greater), approval by the Deputy
Attorney General at DOJ will also be
required. Regional enforcement
personnel may. of course, decline to
consider mixed funding at a particular
site without prior Headquarters
consultation.
VI. Conclusion
Settlement agreements incorporating
mixed funding provisions, as described
in part under section I22(b) of CERCLA.
offer an alternative to either up front
Fund financing of the total costs of
response actions at a site, or possible'
delays in cleanup resulting from
litigation required to force PRP action.
Mixed funding represents one
component of the Agency's
comprehensive approach toward
increased flexibility in settling CERCLA
cases. This approach originates from the
CERCLA Interim Settlement Policy as
well as the codification of much of this
Policy Section 122 of the 1986
Amendments.
The assessment of mixed funding for a
particular site must always begin with
the determination as to whether any
type of mixed funding settlement is
appropriate, based on the ten settlement
criteria. At the broadest level this
evaluation will involve a determination
as to the most effective means of
promoting cleanup at a site while
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Federal Register / VoL 53. No. 49 /.Monday. March 14. 1988 / Notices
8285
iniunnf the most efficient UM of the
Agency'* resource*, includinf th* Fund
itself. Regions are encouraged to
consider • mixed funding settlement
when in assessment of the settlement
criteria, including the strength of the
evidence, the equities of the settlement
ind the public interest, indicate thai
mixed funding is in the best interest of
the Government, the public and the
environment.
For further information or questions
concerning (hit guidance, contact Kathy
MacKinnon. OWPE (WH-527) at FTS:
475-6770.
Disclaimer
The policies and procedures
established in this document are
intended solely for the guidance of
Government personnel. They are not
intended and can not be reiied upon to
create any rights, substantive or
procedural, enforceable by any party in
litigation with the United States. The
Agency reserves the right to act at
variance with these policies and
procedures and to change them at any
time without public notice
[FK Doc. 8--W Filed 3-11-A8. 8-15 ami
•4UJMC COOt
EXPORT-IMPORT BANK OF THE
UNITED STATES
Advisory Committee of the Export-
Import Bank of trie United SUtts;
Open Meeting
SUMMARY: The Advisory Committee was
established by Pub. L 98-181. November
30.1963. to advise the Export-Import
Bank on its programs and to provide
comments for inclusion in the reports of
the Export-fcnpon Bank to the United
States Congress.
Time and Place: Tuesday. March 29.
1988 from 9:30 a.m. to 12 noon. The
meeting will be held in Room 1143.811
Vermont Avenue NW™ Washington. DC •
20571.
Agenda: The meeting agenda will
include a discussion of the following
topics: Financial Report Summary of
Hearings. Medium-Term Report 10
Congress and Competitiveness Report.
Review of 1908 Issues for Advisory
Committee. Briefing on FCIA Strategic
Plan. State/City Update, and other
topics.
Public Participation: The meeting will
be open to public participation: and the
last 20 minutes wili be set aside for oral
questions or comments. Members of the
public may also Hie written statemcnt(s)
before or after the meeting. In order to
permit the Export-import Bank to
arrange suitable accommodations.
member* of the. public who plan to
attend the meeting should notify loan P.
Harris. Room 935.811 Vermont Avenue
NW. Washington. DC 20571. (202) 568-
8871. not later than March 28.1988. If
any person wishes auxiliary aids (such
as a language interpreter! or other
special accommodations, please contact
prior to March 22,1988 the Office of the
Secretary. Room 935.811 Vermont
Avenue NW.. Washington. DC 20571.
Voice: (202) 566-4871 or TDD: (202) 535-
3913.
Further Information: For further
information, contact Joan P. Hams.
Room 935. 811 Vermont Avenue NW..
Washington. DC 20571. (202) 586-8871.
Han FMMMten.
Central Counttl.
|FR Doc. SB-US? Filed J-11-M. 8:45 »m|
•IUJMC cooc
FEDERAL COMMUNICATIONS
COMMISSION
Speciality Mobile Radio Service
Frequencies To Be Available for
Reassignment
The following channels were recently
recovered from licensees who failed to
meet the Comrmssion's loading or
construction requirements and will be
available for reassignment to trunked
Specialized Mobile Radio (SMR)
applicants. They were previously
licensed at the coordinates indicated
and are available at any location within
the geographic area which will protect
existing SMR systems pursuant to Ruies
90.362 and 90.621.
Rockford. IL
42-16-SO North
88-02-16 Wtn
•56/660.0375 MHz
Front Royal VA
aa-M-29 North
TS-u-OB West
an/as4.4»75 MHi
Swanton. OH
41-35-00 North
•3-50-58 WPSI
•56/860.557: MHz
Miimson. CO
39-40-23 North
106-13-M West
•57/M0.0625 MHx
Phoenix. AZ
33-09-33 North
112-33-30 Wesl
•56/8605125 MHs
Baton Route. LA
30-25-56 North
81-1146 Weil
•56/860.S62S MHi
Wobum. MA
42-21-X North
70-V-OO Wesl
•BJa7S.lt4.437S.
•S4Jn.aw.33rs.
M5.7S73MHS
Syrtcux. NY
4J-02-M North
78-08-00 Weil
Pursuant to the Public Notice of
January ft. 1986. Mimeo No. 1805. these
channels will be available for
reassignment on March 31.1988. All
applications received before March 31.
1988 will be dismissed. The first
application received after the channels
become available for reassignment
opens the filing window. The window
stays open only for the day on which the
first application is received. All
applications MUST reference the date
and DA number of thit Public Notice ;r>
order to be considered for these
Frequencies.
There is a $30.00 fee required for eacr
application filed. All checxs should be
made payable to the FCC. Appl,canons
should be mailed to: Federal
Communications Commission. 800
Megahertz Service. P.O. Box 360416.M.
Pittsburgh. PA 15251-8416. Applications
may also be filed m person between 9:00
AM and 3:00 PM at the following
address: Federal Communications
Commission, c/o Mellon Bann. Three
Meilon Bank Center. 525 Wiliiam Pen.-
Way. 27th Floor. Room 153-2713.
Pittsburgh. PA 15359. Attention:
(Wholesale Lockbox Shift Supervisor].
For further information, refer to Puol'C
Nonce of January 6.1986 or contact
Riley Hollingsworth or Betty Woolford
(202'l 632-7125 of the .Private Radio
Burcdu's Land Mobile and Microv\
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9834.11
REVISED PROCEDURES FOR IMPLEMENTING OFF-SITE RESPONSE ACTIONS
I. INTRODUCTION
The off-site policy describes procedures that should be
observed when a response action under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA)
or Section 7003 of RCRA involves off-site storage, treatment or
disposal of CERCLA waste. The procedures also apply to actions
taken jointly under CERCLA and another statute.
The purpose of the off-site policy is to avoid having
CERCLA wastes contribute to present or future environmental
problems by directing these wastes to facilities determined to
be environmentally sound. It is EPA's responsibility to ensure
that the criteria for governing off-site transfer of CERCLA
waste result in decisions that are environmentally sensible and
that reflect sound public policy. Therefore, in developing
acceptability criteria, the Agency has applied environmental
standards and other sound management practices to ensure that
CERCLA waste will be appropriately managed.
EPA issued the original off-site policy in May 1985. See
"Procedures for Planning and Implementing Off-Site Response
Actions", memorandum from Jack W. McGraw to the Regional
Administrators, that policy was published in the Federal
Register on November 5, 1985. The 1986 amendments to CERCLA,
the Superfund Amendments and Reauthorization Act (SARA),
•adopted EPA's policy for off-site transfer of CERCLA wastes,
with some modifications. CERCLA §121(d)(3) requires that
hazardous substances, pollutants or contaminants transferred
off-site for treatment, storage or disposal during a CERCLA
response action be transferred to a facility operating in
compliance with §§3004 and 1005 of RCRA and other applicable
lavs or regulations. The statute also requires that receiving
units at land disposal facilities have no releases of hazardous
wastes or hazardous constituents. Any releases from other
units at a land disposal facility must also b« controlled by a
RCRA or equivalent corrective action program. While the
original policy required compliance with RCRA and other
applicable laws, SARA goes beyond the original policy,
primarily by prohibiting disposal at units at a land disposal
facility with releases, rather than allowing the Agency to
judge whether the releases constituted environmental conditions
that affected the satisfactory operation of a facility.
The off-site policy has been revised in light of the
mandates of SARA. This revised policy also extends the SARA
concepts to certain situations not specifically covered by the
statute. These requirements apply to CERCLA decision documents
signed, and RCRA §7003 actions taken, after enactment of SARA.
Specifically, this policy covers:
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9834.11
-2-
o Extending SARA's "no release" requirement to all RCRA
units receiving CERCLA waste, not just units at RCRA
land disposal facilities;
o Expanding SARA's release prohibition to include
releases of CERCLA hazardous substances, in addition
to releases of RCRA hazardous waste and hazardous
constituents;
o Addressing releases from other units at RCRA treatment
and storage facilities; and
o Addressing off-site transfer to non-RCRA facilities.
The revised policy also reinterprets the May 1985 policy as it
now applies to CERCLA decision documents signed, and RCRA §7003
actions taken, prior to the enactment of SARA.
The revised off-site policy is effective immediately upon
issuance. It is considered to be an interim policy as key
elements of the policy will be incorporated in a proposed rule
to be published in the Federal Register. As part of that
rulemaking, the policy will be subject to public comment.
Comments received during that period may cause additional
revisions to the policy. The final rule will reflect the final
policy under CERCLA §121(d)(3) and EPA will issue a revised
implementation policy memorandum if necessary.
II. APPLICABILITY
There are a number of variables which will determine
whether and how the off-site policy applies: waste type,
authority, funding source, and whether the decision document or
order supporting the clean-up was signed before or after the
enactment of SARA (i.e., before or after October 17, 1986). In
order to determine which elements, of the policy apply to a
specific CZRCLA cleanup each factor Bust be considered.
The first factor to consider is the type of waste to be
transferred. The revised policy applies to the off-site
treatment, storage or disposal of all CERCLA waste. CERCLA
wastes include RCRA hazardous wastes and other CERCLA hazardous
substances, pollutants and contaminants. RCRA hazardous wastes
are either listed or defined by characteristic in 40 CFR Part
261. CERCLA hazardous substances are defined in 40 CFR 300.6.
Because RCRA permits and interim status apply to specific
wastes and specific storage, treatment or disposal processes,
the Remedial Project Manager (RPM) or On-Scene coordinator
(OSC) must determine that the facility's permit or interim
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-3-
status authorizes receipt of the wastes that would be
transported to the facility and the type of process
contemplated for the wastes. Therefore, it is important that
facility selection be coordinated with RCRA personnel.
A CERCLA hazardous substance that is not a RCRA hazardous
waste or hazardous constituent (i.e., non-RCRA waste) may be
taken to a RCRA facility if it is not otherwise incompatible
with the RCRA waste, even though receipt of that waste is not
expressly authorized under interim status or in the permit.
Non-RCRA wastes can also be managed at non-RCRA facilities.
Criteria applicable to CERCLA wastes that can be disposed of at
non-Subtitle C facilities are discussed later in this revised
policy.
The second factor to consider in determining whether this
revised policy applies is the statutory authority for the
action. This revised off-site policy applies to any remedial
or removal action involving the off-site transfer of any
hazardous substance, pollutant, or contaminant under any CERCLA
authority or under RCRA §7003. This policy also applies to
response actions taken under §311 of the Clean Water Act,
except for cleanups of petroleum products. The policy also
covers cleanups at Federal facilities under §120 of SARA.
The third factor to assess is the source of funding. The
revised policy applies to all Fund-financed response actions,
whether EPA or the State is the lead agency. The*policy does
not apply to State-lead enforcement actions (even at NPL sites)
if no CERCLA funds are involved. It does apply to State-lead
enforcement actions where EPA provides any site-specific
funding through a Cooperative Agreement or Multi-Site
Cooperative Agreement, even though the State may be using its
own enforcement authorities to compel the cleanup. Similarly,
non-NPL «ites are covered by this policy only where there is an
expenditure of Fund money or where the cleanup is undertaken
under CZRCIA authority.
The final factor that affects how this revised policy
applies is the date of the decision document. As noted
earlier, there art two classes of actions subject to slightly
different procedures governing off-site transfer: first, those
actions resulting from pre-SARA decision documents or RCRA
§7003 orders issued prior to October 17, 1986, are subject to
the May 1985 policy as updated by this revised policy; and
second, those actions resulting from post-SARA decision
document* or RCRA §7003 orders issued after October 17, 1986,
are subject to the requirements of SARA as interpreted and
expanded by this revised policy. Although the procedures in
this policy are similar for these two classes of actions, there
are important differences (e.g., the requirements' pertaining to
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9834.11
-4-
releases from other units at a facility) that will be
highlighted throughout this document.
Compliance with the revised procedures is mandatory for
removal and remedial actions. However, there is an emergency
exemption for removals if the OSC determines that the
exigencies of the situation require off-site treatment, storage
or disposal without following the requirements. This exception
may be used when the OSC believes that the threat posed by the
substances makes it imperative to remove the substances
immediately and there is insufficient time to observe these
procedures without endangering public health, welfare or the
environment. In such cases, the OSC should consider temporary
solutions (e.g., interim storage) to allow time to locate an
acceptable facility. The OSC must provide a written
explanation of his or her decision to use this emergency
exemption to the Regional Administrator within 60 days of
taking the action. In Regions in which authority to make
removal decisions has not been fully delegated by the Regional
Administrator to the OSC, the decisions discussed above must be
made by the Regional official to whom removal authority has
been delegated. This emergency exemption is also available to
OSC's taking response actions under §311 of the Clean Water
Act.
III. DEFINITIONS
A. Release
For the purposes of this policy, the term "release" is
defined here as it is defined by §101(22) of CERCLA, which is
repeated in 40 CFR 300.6 of the NCP, and the RCRA §3008 (h)
guidance ("Interpretation of Section 3008 (h) of the Solid Waste
Disposal Act", memorandum from J. Winston Porter and Courtney
M. Price to the -Regional Administrators, j£ Al, December 16,
1985). To summarize, a release is any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injection,
escaping, leeching, dumping or disposing to the environment.
This includes releases to surface water, ground water, land
surface, soil and air.
A release also includes a substantial threat of a release.
In determining whether a substantial threat of release exists,
both the imminence of the threat and the potential magnitude of
the release should be considered. Examples of situations where
a substantial threat of a release may exist include a weakened
or inadequately engineered dike wall at a surface impoundment,
or a severely rusted treatment or storage tank.
minimis releases from receiving units are exempt; that
is, they are not considered to be releases under the off-site
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9834.11
-5-
policy. De minimis releases are tnose tnat do not adversely
affect public health or the environment, such as releases to
the air from temporary opening and closing of bungs, releases
between landfill liners of 1 gallon/acre/day or less, or stack
emissions from incinerators not otherwise subject to Clean Air
Act permits. Releases that need to be addressed by
implementing a contingency plan would not normally be
considered de minimis releases.
Federally-permitted releases, as defined by CERCLA
§101(10) and 40 CFR 300.6, are also exempt. These include
discharges or releases in compliance with applicable permits
under RCRA, the Clean Water Act, Clean Air Act, Safe Drinking
Water Act, Marine Protection, Research and Sanctuaries Act, and
Atomic Energy Act or analogous State authorities.
For purposes of this policy, an interim status unit in
RCRA ground-water assessment monitoring (under 40 CFR 265.93)
or a permitted unit in compliance monitoring (under 40 CFR
264.99) is not presumed to have a release. EPA will evaluate
available information, including the data which led to a
determination of the need for assessment or compliance
monitoring, data gathered during assessment monitoring, and any
other relevant data-, including that gathered from applicable
compliance inspections. A determination of unacceptability
should be made when information will support the conclusion
that there is a probable release to ground water from the
receiving unit. Finding a release can happen at any time
before, during or after an assessment or compliance monitoring
program.
On the other hand, it is not necessary to have actual
sampling data to determine that there is a release. An
inspector may find other evidence that a release has occurred,
such as a broken dike or feed line at a surface impoundment.
Less obvious indications of a release might also be adequate to
make the determination. For example, EPA could have sufficient
information on the contents of a land disposal unit, the design
and operating characteristics of the unit, or the hydrogeology
of the area in which the unit is located to conclude that there
is or has been a release to the environment.
B. Receiving Unit
The receiving unit is any unit that receives off-site
CERCLA waste:
(1) for treatment using BOAT, including any pre-
treatment or storage units used prior to treatment;
(2) for treatment to substantially reduce its mobility,
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toxicity or persistence in the absence of a defined
BOAT; or
(3) for storage or ultimate disposal of waste not treated
to the previous criteria.
Note that the acceptability criteria may vary from unit to
unit, and that the receiving unit may vary from transfer to
transfer.
C. Other Units
Other units are all other regulated units and solid waste
management units (SWMU's) at a facility that are not receiving
units.
D. Controlled Release
In order to be considered a controlled release, the
release must be addressed by a RCRA corrective action program
(incorporated in a permit or order) or a corrective action
program approved and enforceable under another applicable
Federal or delegated State authority.
E. Relevant Violations
Relevant violations include Class I violations as defined
by the RCRA Enforcement Response Policy (December 21, 1984, and
subsequent revisions) at or affecting a receiving unit. A
Class I violation is a significant deviation from regulations,
compliance order provisions or permit conditions designed to:
o Ensure that hazardous waste is destined for and
delivered to authorized facilities;
o Prevent releases of hazardous waste or constituents
to the environment;
o Ensure early detection of such releases; or
o Compel corrective action for releases.
Recordkeeping and reporting requirements (such as failure to
submit the biennial report or failure to maintain a copy of the
closure plan at the facility) are generally not considered to
be Class I violations.
Violations affecting a receiving unit include all
ground-water nonitoring violations unless the receiving unit is
outside the waste management area which the ground-water
monitoring system was designed to monitor. Facility-wide Class
I violations (such as failure to comply with financial
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responsibility requirements, inadequate closure plan,
inadequate waste analysis plan, inadequate inspection plan,
etc.) that affect the receiving unit are also relevant
violations.
Violations of State or other Federal laws should also be
examined for relevance, considering the significance of the
requirement that is being violated; the extent of deviation
from the requirement; and the potential or actual threat to
human health or the environment.
F. Relevant Release
A relevant release under this revised policy includes:
o Any release or significant threat of release of a
hazardous substance (defined in 40 CFR 300.6) not
previously excluded (i.e., fle. minimis releases or
permitted releases) at all units of a RCRA Subtitle c
land disposal facility and at receiving units of a
RCRA Subtitle C treatment or storage facility; and
o Environmentally significant releases of any hazardous
substance not previously excluded at non-receiving
units at'RCRA Subtitle C treatment and storage
facilities-and at all units at other facilities.
Q, Relevant Conditions
Relevant conditions include any environmental conditions
(besides a relevant violation) at a facility that pose a
significant threat to public health, welfare or the environment
or that otherwise affect the satisfactory operation of the
facility.
H. Responsible Agency
Determinations of acceptability to receive an off-site
transfer of CERCLA waste will be made by EPA or by States
authorized for corrective action under §3004(u) of RCRA.
References in this document to the "responsible Agency" refer
only to EPA Regions or to States with this authority.
I. Responsible Government Official
The responsible government official is that person
authorized in the responsible Agency to make acceptability
determinations under this revised policy.
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IV. ACCEPTABILITY CRITERIA
A. Acceptability Criteria for Wastes Generated Under
Decision
CZRCLA wastes from actions resulting from pre-SARA
decision documents and pre-SARA RCRA §7003 orders may go to a
facility meeting the following criteria:
o There are no relevant violations at or affecting the
receiving unit; and
o There are no relevant conditions at the facility
(i.e., other environmental conditions that pose a
significant threat to public health, welfare or the
environment or otherwise affect the satisfactory
operation of the facility) .
In order to determine if there is a relevant violation,
an appropriate compliance inspection must be conducted no more
than six months before the expected date of receipt of CERCLA
waste. This inspection, at a minimum, Bust address all
regulated units. This inspection may be conducted by EPA, a
State or an authorized representative. When a State conducts
the inspection, it should determine the facility's compliance
status. Where a violation or potential violation comes to
EPA's attention (e.g., through a citizen complaint or a
facility visit by permit staff) , the Region or State is
expected to investigate whether a violation occurred as soon as
is reasonably possible.
The May 1985 policy does not refer specifically to
releases. Rather, a corrective action plan is required for
relevant conditions. Therefore, in some cases, a facility
receiving CERCLA wastes from an action subject to a pre-SARA
decision document nay not need to institute a program to
control releases. Releases will be evaluated by the
responsible Agency to determine whether such releases
constitute relevant conditions under this policy.
The activities related to determining acceptability,
providing notice to facilities, regaining acceptability and
implementation procedures are discussed in the "Implementation11
section of this document, and apply to off -site transfers of
waste generated under pre-SARA and post-SARA decision
documents .
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9834.11
B. Acceptability Criteria for Wastes Generated Under Post-SASA
Decision Do
Under this revised policy, there are three basic criteria
that are used to determine the acceptability of a facility to
receive off-site transfers of CERCLA waste generated under a
post-SARA decision document or post-SARA RCRA §7003 cleanup.
The criteria are:
o There must be no relevant violations at or affecting
the receiving unit;
o There must be np releases from receiving units and
contamination from prior releases at receiving units
must be addressed as appropriate; and
o Releases at other units must be addressed as
appropriate.
The last two criteria are applied somewhat differently,
depending on the type of facility. These differences are
described below.
1. Criteria Applicable to All RCRA S.ub.'tiitle C Treatment.
Storage and Disposal Facilities. The fir«t criterion that
applies to all Subtitle C facilities is that there can be no
relevant violations at or affecting the receiving unit. As
discussed earlier, this determination must be based on an
inspection conducted no more than six months prior to receipt
of' CERCLA waste.
A second element that applies to all Subtitle C facilities
is that there must be no. releases at receiving units. Releases
from receiving units, except for sli minimis releases and State-
and Federally-permitted release! , must be eliminated and any
prior contamination. fro* the release must be controlled by a
corrective action permit or order under Subtitle C, as
described in the next section.
The final criterion that applies to all Subtitle C
facilities, is that the facility must have undergone a RCRA
Facility Assessment (RFA) or equivalent facility-vide
investigation. This investigation addresses EPA's affirmative
duty under CERCLA §121(d)(3) to determine that there are no
releases at the facility.
Releases of RCRA hazardous waste or hazardous
constituents and CERCLA hazardous substances are all included
under the policy. While the RFA need not focus, on identifying
releases of hazardous substances that are not RCRA hazardous
wastes or hazardous constituents, to the extent such releases
are discovered in an RFA or through other means, they will be
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considered the same as a release of hazardous waste or
hazardous constituents.
o Additional Criteria Applicable to RCRA Subtitle C Land
Disposal Facilities. Land disposal facilities must meet
additional requirements imposed by SARA and this policy. The
term "land disposal facility" means any RCRA facility at which
a land disposal unit is located, regardless of whether the land
disposal unit is the receiving unit. Land disposal units
include surface impoundments, landfills, land treatment units
and waste piles.
As stated earlier, there must be no releases at or from
receiving units. In addition, releases from other units at a
land disposal facility must be controlled under a corrective
action program. The RFA will help determine whether there is a
release. In addition, land disposal facilities must have
received a comprehensive ground-water monitoring evaluation
(CUE) or an operation and maintenance (O&M) inspection within
the last year.
Units at RCRA Subtitle C land disposal facilities
receiving CERCLA wast* that is also RCRA hazardous waste must
meet the RCRA minimum technology requirements of RCRA §3004 (o)
Only where a facility has been granted a waiver can a land
disposal unit not meeting the minimum technology requirements
be considered acceptable for off-site disposal of CERCLA waste
that is RCRA hazardous waste.
o Criteria Applicable to ffub^jtle C Trffl^P*nt and Storage
Facilities. The criterion for controlling releases from other
units does not apply to all releases at treatment and storage
facilities, as it does at land disposal facilities. Releases
from other units at treatment and storage facilities must be
evaluated for environmental significance and their effect on
the satisfactory operation of the facility. If determined by
the responsible Agency to be environmentally significant,
releases Bust be controlled by a corrective action program
under an applicable authority. Releases from other units at
treatment and storage facilities determined not to be
environmentally significant do not affect the acceptability of
the facility for receipt of CERCLA waste.
2. Criteria Applicable to RCRA Permit-bv-Rule Facilities.
This revised policy is also applicable to facilities subject to
the RCRA permit-by-rul* provisions in 40 CFR 270.60. These
include ocean disposal barges or vessels, injection wells and
publicly owned treatment works (POTWs) . Parmit-by-rule
facilities receiving RCRA hazardous wast* must have a RCRA
permit or RCRA interim status. RCRA permit-by-rule facilities
must also receive an inspection for compliance with applicable
RCRA permit or interim status -requirements. In addition, these
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facilities (and other non-RCRA facilities) should be inspected
by the appropriate inspectors for other applicable laws.
In general, except for POTWs (discussed below), these
facilities will be subject to the same requirements as RCRA
treatment and storage facilities. That is, there can be no
releases of hazardous waste, hazardous constituents or
hazardous substances from receiving units. There also can be
no relevant violations at or affecting the receiving unit, as
confirmed by an inspection conducted no more than six months
prior to the receipt of CERCLA waste. Releases from other
units determined by the responsible Agency to be
environmentally significant must be controlled by an
enforceable agreement under the applicable authority.
Criteria for discharge of wastewater from CERCLA sites to
POTWs can be found in a memorandum titled, "Discharge of
Wastewater from CERCLA Sites into POTWs, " dated April 15, 1986.
That memorandum requires an evaluation during the RI/FS process
for the CERCLA site to consider such points as:
o the quantity and quality of the CERCLA wastewater and
its compatibility with the POTW;
o the ability of the POTW to ensure compliance with
applicable pretreatment standards;
o the POTWs record of compliance with its NPDES permit;
and
o the potential for ground-water contamination from
transport to or impoundment of CERCLA wastewater at
the POTW.
Based on a consideration of these and other points listed in
the memorandum, the POTW say be deemed appropriate or
inappropriate for receipt of CERCLA waste.
3. criteria Applicable to Non-gu^ j.tle C Facilities. In
some instances, it may be appropriate to use a non-Subtitle C
facility for off-site transfer: for example, PCB disposal is
regulated under the Toxic Substances Control Act (TSCA) ;
nonhazardous waste disposal is regulated under Subtitle D of
RCRA and applicable State laws; and disposal of radionuclides
is regulated under the Atonic Energy Act. At such facilities,
all releases are treated in the same manner as releases from
other units at Subtitle c treatment and storage facilities.
That is, th« responsible Agency should make a determination as
to whether the release is environmentally significant and, if
so, the release should be controlled by a corrective action
program under the applicable Federal or State authority.
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Requirements for the disposal of PCBs are established in
40 CFR 761.60. Generally, these regulations require that
whenever disposal of PCBs is undertaken, they must be
incinerated, unless the concentrations are less than 50 ppm.
If the concentrations are between 50 and 500 ppm, the rule
provides for certain exceptions that provide alternatives to
the incineration requirements. The principal alternative is
disposal in a TSCA-pennitted landfill for PCBs. If a TSCA
landfill is the receiving unit for PCBs, then that facility is
subject to the same criteria applicable if a RCRA land disposal
unit is the receiving unit; i.e., no relevant violations, no
releases at the receiving unit and controlled releases at other
units. PCBs at levels less than 50 ppm may be transported to
acceptable Subtitle D facilities as discussed previously.
V. IMP? .FMTTtJTATI ON
A. Determining Acceptability
Acceptability determinations under the off-site policy
will be made by EPA or by states authorized for corrective
action under §3004(u) of RCRA. Where States have such
authority, the State may make acceptability determinations for
facilities in the State in consultation with EPA. Regardless
of a State's authorization status, the Region and States should
establish, in the Superfund'Memorandum of Agreement, mechanisms
to ensure timely exchange of information, notification of
facilities and coordination of activities related to the
acceptability of facilities and potential selection of
facilities for off-site transfer. The Regions and States also
need to establish or enhance coordination mechanisms with their
respective RCRA program staffs in order to ensure timely
receipt of information on inspections, violations and releases.
These agreements can be embodied in State authorization
Memoranda of Agreement, State grant agreements, or State-EPA
enforcement agreements.
Th« responsible government qfficial in the Region or state
in which a hazardous waste facility is located will determine
whether the facility has relevant violations or releases which
may preclude its use for off-site transfer of CERCLA wastes.
Each Region and State should have a designated off-site
coordinator responsible for ensuring effective communication
between CERCLA response program staff and RCRA enforcement
staff within the Regional Offices, with States, and with other
Regions and States.
The off-site coordinator should maintain a file of all
information on the compliance and release status of each
commercial facility in the Region or State. This information
should be updated based on the results of State- or
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-13-
EPA-conducted compliance inspections or other information on
these facilities.
CERCLA response program staff should identify potential
off-site facilities early in the removal action or the remedial
design process and check with the appropriate Regional and/or
State off-site coordinator(s) regarding the acceptability
status of the facilities. If one or more facilities is
identified that has not received an inspection within the last
six months, the Regional off-site coordinator(s) should arrange
to have such inspection(s) conducted within a timeframe
dictated by the project schedule. The CERCLA REM/FIT
contractor may conduct the inspection under the direction of
the Deputy Project Officer. If contractor personnel are used,
the Region should ensure that such personnel are adequately
trained to conduct the inspections.
Responsible Agencies should base their acceptability
determinations on an evaluation of a facility's compliance
status and, as appropriate, whether the facility has releases
or other environmental conditions that affect the satisfactory
operation of the .facility. States not authorized for HSWA
corrective action may assist EPA in making the acceptability
determination by determining a facility's compliance status
(based on a State inspection) and providing this information to
EPA. Regions and States should use the following types of
information to make acceptability determinations:
o State- or EPA-conducted inspections. EPA will
continue to assign high priority to conducting
inspections at commercial land disposal, treatment
and storage facilities. Facilities designated to
receive CERCLA waste must be inspected within six
months of the planned receipt of the waste. In
addition, -land disposal facilities must have received
a comprehensive ground-water monitoring inspection
(CKE) or an operation and maintenance (O&M)
inspection within the last year, in accordance with
the timeframes specified in the RCRA Implementation
Plan (RIP).
o RCRA Facility Assessments fRTAsl. To be eligible
under this policy, a RCRA Subtitle C facility must
have had an RFA or equivalent facility-wide
investigation. The RFA or its equivalent must be
designed to identify existing and potential releases
of hazardous waste and hazardous constituents from
solid waste management units at the facility.
o Other data sources. Other documents -such as the
facility's permit application, permit, Ground Water
Task Force report, ground-water monitoring data or
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9834.1 1
-14-
ground-water assessment report can contain
information on violations, releases or other
conditions. Relevant information from these
documents should also be used to determine a
facility's acceptability to receive waste under the
off-site policy.
B. Notice Procedures
EPA expects that Regions and States will take timely and
appropriate enforcement action on determining that a violation
has occurred. Where a responsible Agency performs an
inspection that identifies a relevant violation at a commercial
facility likely to accept CERCLA wastes, within five working
days of the violation determination, the responsible Agency
must provide written notice to the facility of the violation
and the effects of applying this policy. States not authorized
for HSWA corrective action should inform EPA of the violation
so that EPA can notify the facility of the effect of the
violation under this policy. (See RCRA Enforcement Response
Policy for a discussion of appropriate enforcement responses
and timeframes for Class I violations.)
When the responsible Agency determines that a relevant
release has occurred, or that relevant conditions exist, the
responsible Agency must notify the facility in writing within
five working days of that determination. The notice must also
state the effect of the determination under this policy. A
copy of any notice must also be provided to the non-issuing
Region or State in which the facility is located, states not
authorized for HSWA corrective action should provide EPA with
information on releases so that EPA can determine whether•a
relevant release has occurred.
Private parties conducting a response action subject to
this policy will need to obtain information on the
acceptability of commercial facilities. The responsible Agency
must respond with respect to both pre-SARA and post-SARA
wastes. Za addition, the responsible Agency should indicate
whether the facility is currently undergoing a review of
acceptability and the date the review is expected to be
completed. No enforcement sensitive or predecisional
information should be released.
A facility may submit a bid for receipt of CERCLA waste
during a period of unacceptability. However, a facility must
be acceptable in order to be awarded a contract for receipt of
CERCLA waste.
Scope and Contents of the Notice. The responsible Agency
must send the notice to the facility owner/operator by
certified and first-class mail, return receipt requested. The
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-16-
within 10 calendar days from the date of issuance of the
notice, to discuss the basis for a violation or release
determination and its relevance to the facility's acceptability
to receive CERCLA wastes. Any such meeting should take place
within 30 calendar days of the date the initial notice is
issued. If unacceptability is based on a State inspection or
enforcement action, a representative of the State should attend
the meeting. If the State does not attend, EPA will notify the
State of the outcome of the meeting. The owner/opeator may
submit written comments within 30 calendar days from the date
of the notice in lieu of holding the conference. If the
responsible Agency does not find that the information submitted
at the informal conference or in comments is sufficient to
support a finding of acceptability to receive CERCLA wastes, it
should so inform the facility orally or in writing.
Within 10 calendar days of hearing from the responsible
government official after the informal conference or the
submittal of written comments, the facility owner or operator
may request a reconsideration of the determination by the
Regional Administrator or appropriate State official. The
Regional Administrator or appropriate State official may use
his or her discretion in deciding whether to conduct a review
of the determination. Such a review, if granted, should be
conducted within the 60 day period (originating with the
notice) to the extent possible. The review will not stay the
determination.
The RPM, OSC or equivalent site manager must stop transfer
of waste to a facility on the 60th calendar day after issuance
of a notice. The facility then remains unacceptable until such
time as the responsible Agency notifies the owner or.operator
otherwise. The off-site coordinator and the OSC/RPM should
maintain close coordination throughout the 60-day period.
In limited cases, the responsible Agency may use its
discretion to extend the 60 day period if it requires more time
to review a submission. The facility should be notified of any
extension, and it remains acceptable during any extension.
The responsible Agency may also use its discretion to
determine that a facility's unacceptability is immediately
effective upon receipt of a notice to that effect. This may
occur in situations such as, but not limited to, emergencies
(e.g., fire or explosion) or egregious violations (e.g.,
criminal violations or chronic recalcitrance) or other
situations that render the facility incapable of safely
handling CERCLA waste.
Implementation of this notice provision does not relieve
the Regions or States from taking appropriate enforcement
action under RCRA or CERCLA.
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983
-15-
certified notice, if not acknowledged by the receipt return
card, will be considered to have been received by the addressee
if properly sent by first-class mail to the last address known
to the responsible Agency. The notice should contain the
following:
o A finding that the facility may have conditions that
render it unacceptable for receipt of off-site waste,
based upon available information from an RFA, an
inspection, or other data sources;
o A description of the specific acts, omissions or
conditions that form the basis of the findings;
o Notice that the facility owner/operator has the
opportunity to request an informal conference with
the responsible government official to discuss the
basis for the facility's unacceptability
determination under this revised policy, provided
that such a request is made within 10 calendar days
from the date of the notice. The owner /operator may
submit written comments within 30 calendar days from
the date of the notice in lieu of holding the
conference.
o Notice that failure to request an informal meeting or
submit written comments will result in no further
consideration of the determination by the responsible
Agency during the 60 calendar days after issuance of
the notice. The responsible Agency will cease any
transport of CERCXA waste to the facility on the 60th
calendar day after issuance of the notice.
o Notice that the owner/operator nay request, within 10
calendar days of hearing from the responsible
government official after the informal conference or
the submittal of written comments, a reconsideration
of the determination by the Regional Administrator or
appropriate State official. The Regional
Administrator or State official may agree to review
the determination at his or her discretion; and
o Notice that such a review by the Regional
Administrator or appropriate State official, if
agreed to, will be conducted within 60 calendar days
of the initial notice, if possible, but that the
review will not stay the determination.
The facility may continue to receive CERCIA waste for 60
calendar days after'issuance of the initial notice. As
indicated above, facility owners or operators may request an
informal conference with the responsible government official
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9834.1 !
-17-
£_, Procedures for Facilities with Outstanding Unaceeptability
Determinations
Under the original May 1985 off-site policy, facilities
determined to be unacceptable to receive CERCLA wastes were
provided with written notice and were generally afforded
informal opportunities to comment on the determination (the
latter step was not required by the policy). Although the
Agency believes that these steps represented adequate
procedural safeguards for facilities seeking to receive CERCLA
wastes, EPA has decided to provide an additional opportunity
for review, in light of this revised policy, for facilities
with unacceptability determinations already in place on the
effective date of the revised policy.
Any such facility that wishes to meet with the responsible
Agency to discuss the basis for a violation or release
determination and its relevance to the facility's ability to
receive CERCLA wastes, may request an informal conference with
or submit written comments to the responsible Agency at any
point up to the 60th day after the publication of the proposed
rule on the off-site policy in the Federal Register. Such a
meeting should take place within 30 calendar days of the
request. If the responsible government Agency does not find
the information presented to be sufficient to support a finding
of acceptability to receive CERCLA wastes, then it should
inform the facility orally or in writing that the
unacceptability determination will continue to be in force.
The facility may, within 10 calendar days of hearing from the
responsible government official after the informal conference
or submittal of written comments, petition the EPA Regional
Administrator or appropriate State official for
reconsideration. The Regional Administrator or State official
may use his or her discretion in deciding whether to grant
reconsideration.
Thase procedures for review of unacceptability
determinations that were already in place on the effective date
of this revised policy will not act to stay the effect of the
underlying unacceptability determinations during the period of
review.
p. Re-evaluating Unacceotabilitv
An unacceptable facility can be reconsidered for
management of CERCLA wastes whenever the responsible Agency
finds that the facility meets the criteria described in the
Acceptability Cr.iteriaM section of this policy.
n
For -the purposes of this policy, releases will be
considered controlled upon issuance of an-order or permit that
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983U
-18-
initiates and requires completion of one or more of the
following: a facility-wide RCRA Facility Investigation (RFI);
a Corrective Measures Study (CMS); or Corrective Measures
Implementation (CMI). The facility must comply with the permit
or order to remain acceptable to receive CERCLA waste. At the
completion of any such phase of the corrective action process,
the responsible Agency should again review the facility for
acceptability under the off-site policy using the criteria
listed in this document, and as necessary and appropriate, make
new acceptability determinations, and issue additional orders
or modify permit conditions to control identified releases.
Releases that require a determination of environmental
significance will be considered controlled upon issuance of an
order or permit to conduct an RFI, CMS or CMI, or upon
completion of an RFI which concludes that the release is not
environmentally significant. Again, the facility must comply
with the permit or order to remain acceptable to receive CERCIA
waste.
If the facility is determined to be unacceptable as a
result of relevant violations at or affecting the receiving
unit, the State (if it made the initial determination) or EPA
must determine that the receiving unit is in full physical
compliance with all applicable requirements. Where a State not
authorized for HSWA corrective action makes this determination,
it should notify EPA immediately of the facility's return to
compliance, so that the Agency can expeditiously inform the
facility that it is once again acceptable to receive CERCLA
wastes.
The responsible Agency will notify the facility of its
return to acceptability by certified and first-class mail,.
return receipt requested.
E. Implementation Procedures
All remedial decision documents must discuss compliance
with this policy for alternatives involving off-site management
of CERCIA wastes. Decision documents for removal actions also
should include such a discussion.
Provisions requiring compliance with this policy should be
included in all contracts for response action, Cooperative
Agreements with States undertaking Superfund response actions,
and enforcement agreements.. For ongoing projects, these
provisions will be implemented es follows, taking into
consideration the differences in applicable requirements for
pre- and post-SARA, decision documents:
o Ri/FS; The Regions shall immediately notify Agency
contractors and States that alternatives for off-site
-------
management of wastes must be evaluated against the
provisions of this policy.
o Remedial Design; The Regions shall immediately
notify Agency contractors, the States, and the U.S.
Army Corps of Engineers that all remedies that
include off-site disposal of CERCLA waste must comply
with the provisions of this policy.
o Remedial Action; The Regions shall immediately
assess the status of compliance, releases and other
environmental conditions at facilities receiving
CERCLA waste from ongoing projects. If a facility is
found not to be acceptable, the responsible Agency
should notify the facility of its unacceptability.
o Enforcement; Cleanups by responsible parties under
enforcement actions currently under negotiation and
all future actions must comply with this policy.
Existing agreements need not be amended. However,
EPA reserves the right to apply these procedures to
existing agreements, to the extent it is consistent
with the release and reopener clauses in the
settlement.agreement.
If the response action is proceeding under a Federal lead,
the Regions should work with the Corps of Engineers or EPA
Contracts Officer to negotiate a contracts modification to an
existing contract, if necessary. If the response action is
proceeding under a State lead, the Regipns should amend the
Cooperative Agreement.
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.-*"»'«%
>
• i
«. we"
UNITED STATtS ENVIRONMENTAL PROTECTION AGENCY 9 8 9 1.5 A
WASHINGTON. D.C. 204*0
JAN
". *:-irM
• • •• . - .
J'-I , ! I ' I
MEMORANDUM
SUBJECT:
FROM:
TO:
Expansion of Direct Referral of Cases to the.
Department of Justice
Thomas L. Adams, Jr.
Assistant Administrator"
Regional Administrators, Regions I - X
Deputy Regional Administrators, Regions I
Regional counsels, Regions I - X
Assistant Administrators
Associate Enforcement Counsels
OECM Office Directors
- X
I. BACKGROUND
During the past y«nr, my office has vorXed closely with
the Regions, the Headguarters program offices, and the Land
and Katural Resources Division of the U.S. Department of
Justice (DOJ) to expand the use of direct referral of cases.
On January 5, 1988, EPA and DOJ entered into an agreement
which expanded the categories of civil judicial cases to be
referred directly to DOJ Headquarters from the EPA Regional
offices without my prior concurrence. In entering into this
agreement, EPA has taken a major step towards streamlining
the enforcement process and more fully utilizing our Regional
enforcement capabilities.
On January 13, 1988, the Administrator signed an interim
delegations package which will allow the Agency to immediately
implement expanded diract raferrals to DOJ. A final delega-
tions package is now being prepared for Graen Border review.
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9 8915 A
This memorandum provides guidance to EPA Headquarters
and Regional personnel regarding procedures to follow in
implementing the expanded direct referral agreement. Prior
guidance on direct referrals appears in a November 28, 1983,
memorandum from Courtney Price entitled "Implementation of
Direct Referrals for Civil cases Beginning December 1, 1983.
That guidance is superseded to the extent that the current
guidance replaces or changes procedures set forth therein;
otherwise the 1983 document remains in effect.
II. SUMMARY
Effective immediately for non-CSRCLA cases, and effec-
tive April 1, 1988, for CERCLA cases, the Regions will
directly refer to the Department of Justice all civil cases
other than those listed in the attachment to this memorandum
entitled "Cases Which Hill Continue to be Referred Through
Headquarters." This attachment lists cases in new and
emerging programs and a few, highly-selected additional
categories of cases where continued referral through EPA
Headquarters has been determined to be appropriate. EPA
Headquarters will have 35 days to review the case simul-
taneously with DOJ. EPA Headquarters will focus its review
primarily on significant legal or policy issues, if major
legal or policy issues art raised during this review, EPA
Headquarters will worJc with the Region to expedite resolu-
tion.
Attached is a copy of the agreement between EPA and DOJ,
which is incorporated into this guidance. Many of the
procedures for direct referral of cases are adequately
explained in the agreement. However, there are some points I
would like to emphasize.
III. PROCEDURES
A. CASXS SUBJECT TO DXBZCT RZITRRAL
The attached agreement lists those categories of cases
which oust continue to be referred through the Office of
Enforcement and Compliance Monitoring (OECM). All other
cases should be referred directly by the Regional Office to
DOJ Headquarters, with the following two exceptions:
(1) cases which contain counts which could be directly
referred and counts which require prior EPA Headquarters
review should be referred through EPA Headquarters, and
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98 91.5 A
(2) any referral which transmit* a consent decree
should be referred through EPA Headquarters, except
where existing delegations provide otherwise.
If you are uncertain whether a particular case may be
directly referred, you should contact the appropriate
Associate Enforcement Counsel for guidance.
B. PREPARATION AND DISTRIBUTION OF REFERRAL PACKAGES
The contents of a referral package (either direct to DOJ
or to EPA Headguarters) should contain three primary divi-
sions: (1) a cover letter; (2) the litigation report; (3) the
documentary file supporting the litigation report.
The cover letter should contain a summary of the
following elements:
(a) identification of the proposed defendant(s);
(b) the statutes and regulations which are the basis
for the proposed action against the defendant(s);
(c) the essential facts upon which the proposed action
is based, including identification of any signi-
ficant factual issues;
(d) proposed relief to be sought against defendant(s);
(•) significant or precedential legal or policy issues;
(f) contacts with the defendant(s), including any
previous administrative enforcement actions taken;
(g) lead Regional legal and technical personnel;
;h) any other aspect of the case which is significant
and should be highlighted, including any extra-
ordinary resource demands which the case may
require.
A direct referral to DOJ is ta.n^a.m,punt to a eertifi*
cation bv the Region that it believes the ease is suffi-
ciently developed, for, filing of a complaint, and that the
Region is ready, willing and ftfelt to provide such leeral and
technical support as might be reasonably required to pursue
tfte ease through litigation.
Referral packages should be addressed to the Assistant
Attorney General, Land and Natural Resources Division, U.S.
Department of Justice, Washington D.C. 20530. Attention:
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9891.5 A
Chief, Environmental Enforcement Section. Copies of all
referral packages should also be sent to the Assistant
Administrator for OECM and the appropriate Headquarters
program offioe.
DOJ has reaffirmed the time frame of the Memorandum of
Understanding, dated June 15, 1977, for the filing of cases
within 60 days after receipt of the referral package, where
possible. DOJ can request additional information from a
Region on a case or return a case to a Region for further
development. In order to avoid these delays, referral
packages should be as complete as possible and the Regions
should work closely with DOJ to develop referral packages.
C. IDENTIFICATION AND RESOLUTION OF SIGNIFICANT LEGAL
AND POLICY ISSUES
A major element in assuring the success of the expanded
direct referral program is an efficient process to identify
and resolve significant legal and policy issues. This should
be done as early as possible to assure that unresolved issues
not delay a referral. Early identification and resolution
will also help the Agency to avoid devoting significant
Regional resources to preparing a litigation report for a
case which will ultimately be considered inappropriate for
referral.
The procedures make clear that the Regional office has
the initial responsibility for identification of significant
legal and policy issues. Such issues should be identified to
OECM and the appropriate Headquarters program office as soon
as a decision is made to proceed with litigation. All
parties should then work to address the issues as quickly as
possible, preferably before the referral package is sent to
Headquarter*.
The agreement with DOJ also outlines procedures for
Headquarters review of referral packages to determine whether
any significant legal or policy issues exist which would
impact filing, and the process for resolution of such issues.
If an issue surfaces during the 35-day Headquarters review
period, OECM will work for quick resolution of the issue,
with escalation as necessary to top Agency management. This
should serve primarily as a "safety valve" for those few
issues not previously identified, rather than as the point at
which issues are first raised.
Finally, if DOJ raises a significant legal or policy
issue during its review, OECM will work with the Region and
the Headquarters program office to expedite resolution of the
issue. If DOJ makes a tentative determination to return a
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9891.5*
referral, DOJ will consult with OECM and th« Regional Office
in advance of returning the referral.
D. CASE QUALITY/STRATEGIC VALUE
OECK will evaluate Regional performance as to the
quality and strategic value of cases on a generic basis.
While OECM will not request withdrawal of an individual
referral based on concerns about quality or strategic value,
it will consider these factors during the annual audits of
the Offices of Regional Counsel and the annual Regional
program office reviews. Concerns relative to issues of
quality or strategic value will also be raised informally as
soon as they are identified.
E. WITHDRAWAL OF CASES PRIOR TO FILING
Cases should be fully developed and ready for filing at
the time they are referred to DOJ Headquarters. Thus, case
withdrawal should be necessary only under the most unusual
circumstances. If, after consultation with OECM, withdrawal
is determined to be appropriate, the Regions may request that
DOJ withdraw any directly referred case prior to filing.
Copies of the Region's request should be sent to the Assis-
tant Administrator.for OECM and the appropriate program
office.
F. MAINTENANCE OF AGENCY-WIDE CASE TRACKING SYSTEM
In order to assure effective management of the Agency's
enforcement program, it is important to maintain an accurate,
up-to-date docket and case tracking system. Regional
attorneys must continue to report fch« status of all eases.
including directly referred eases, on a regular basis through
use of the national Enforcement Docket System. All infor-
mation for the cass required by the case docket system must
appear in the docket and be updated in accordance with
current guidance concerning the automated docket system.
If yen have any questions, concerning the procedures set
forth in this memorandum, please contact Jonathan Cannon,
Deputy Assistant Administrator for Civil Enforcement, at
FTS 382-4137.
Attachment
cc: Hon. Roger J. Marzulla
David Buente
Nancy Firestone
Assistant Section Chiefs
-------
(as:
98 91.5 A
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. DC 20460
24
o»»«to«
MT AMO
Honorable Poger J. Marzulla
Acting Assistant Attorney General
Land and Natural Resources Division
Washington, D.C. 20530
Dear Roger:
As you know, the Agency has been considering changes in
existing procedures to increase the effectiveness of its enforcement
program. One change, which we discussed at our recent* meeting with
you, is a major expansion of the direct referral program for civil
judicial enforcement actions, whereby such cases are referred
directly from the Regional Administrators to your office.
We believe the past successes of this program and the
increased maturity of Regional staff warrant adopting direct
referrals as the basic mode of operation. Thus, with your
acceptance, we intend to utilize direct referrals to your office
for virtually all civil cases other than those relating to certain
new statutory authorities or emerging programs where judicial
enforcement experience is limited. As such programs mature, we
•will expand the scope of direct referrals to cover them. In
addition, as new programs are implemented under new statutory or
regulatory requirements, we contemplate an initial period of
referrals through Headquarters for these cases prior to their
incorporation into the direct referral process.
Based on discussions within the Agency and with your staff,
we would propose that direct referrals cover all civil cases but
those listed in Attachment A. This list includes cases in new and
emerging programs and • few, highly-selected additional categories
of cases where continued referral through Headquarters has been
determined to b« appropriate. This would allow direct referral of
the vast Majority of civil cases, including those which would still
require significant national coordination to assure a consistent
approach (such as auto coating VOC air cases). For this reason,
the procedures applicable to this small subset. of cases as outlined
in the memorandum entitled "Implementing Nationally Managed or
Coordinated Enforcement Actions: Addendum to Policy Framework for
State/EPA Enforcement Agreements" dated January 4, 1985 will remain
in effect.
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98915IV
-2-
For all hut CERCLA cases, this expansion would be effective
on January 1, 1988. For CERCLA cases, direct referrals would take
effect on April 1, 1988. We anticipate joint issuance by our
offices of the model CERCLA litigation report prior to that date.
Also attached (Attachment P) is the outline of the direct
civil referral process as the Agency intends to implement it.
This outline refines current direct referral procedures by more
clearly focusing authority and accountability within the Agency.
Under these modified procedures, the Regional Office has the
lead on direct referrals. The Region will be solely responsible
for the quality of the referral. In this context, quality
encompasses both the completeness and accuracy of the litigation
report and the strategic value of the case. Any problems
involving case quality should be raised directly with the Region.
OECM will evaluate Regional performance as to the quality
and strategic value of cases on a generic basis. While OECM wi.ll
not request withdrawal of an individual referral on the basis of
concerns about quality or strategic value, we are committed to
working with the Regional Offices to assure that current standard*
are maintained or even exceeded in future referrals. We welcome
your input on Agency performance to assist us in this regard.
As the procedures detail, OECM (as well as the appropriate
Headquarters office) will continue to 'be actively involved in
identification and resolution of significant legal and policy
issues. Such issues normally should be raised and resolved prior
to the actual referral. If such an issue surfaces during the
35-day Headquarters review period, we will work for quick resolution
of the issue, with escalation as necessary to top Agency management.
During the period required for resolution, OOJ will treat the
referral as "on hold*. In -the unusual circumstance where an issue
is still unresolved after 60 days from the date of referral, we
would contemplate withdrawal of the referral by the Agency pending
resolution unless a -formal "hold" letter has been submitted in
accordance with the procedures contained in the memorandum entitled
"Expanded Civil Judicial Referral Procedures" dated August 28,
1986.
If a significant policy or legal issue is raised by DOJ during
its review, OECM remains committed to work with the Regional and
program offices to assure expedited resolution of the issue.
Obviously, these procedures are not intended to inhibit discussions
between our offices to facilitate a resolution. In addition, if
DOJ makes a tentative determination to return a referral, we
understand that you will consult with OECM and the Regional Office
in advance of returning the referral.
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58915ft
-3-
We believe this expansion in use of direct referrals represents
a major advance in streamlining the Agency's enforcement process
and appreciate your support in its implementation. This letter,
upon your acceptance, will supersede the letters of September 29,
1983, October 28, 1985, and August 28, 1986 on this subject and
constitute an amendment to the June 15, 1977 Memorandum of
Understanding between our respective agencies.
I appreciate your continuing cooperation and support in our
mutual efforts to make our enforcement process more effective. I
hope this letter meets with your approval. If so, please sign in
the space provided below and return a copy of the letter to me for
distribution throughout the Agency.
S incerely,
Thomas L. Adams, Jr.
Assistant Administrator
Attachments
Approved:
Poger J. MarzullaDate
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
-------
989 1.5 Pr
RESPONSIBILITIES AND PROCEDURE? FOR DIRECT REFERRALS
OF CIVIL JUDICIAL ENFORCEMENT ACTIONS TO THE DEPARTMENT OF JUSTICE
(1) Regional Offices have the lead on direct referrals to
the Assistant Attorney General, Land and Natural Resources Division,
Department of Justice (DOJ); Regions will be responsible for
the quality of referrals.
(2) Regions will identify any significant legal/policy issues
as soon as the decision is made to proceed with litigation. Such
issues will be raised in writing for consideration by OECM and the
appropriate Headquarters program office. All parties will attempt
to resolve such issues as early as possible, preferably before the
referral package is sent to Headquarters. Regions will also flag
such issues in the cover memo transmitting the referral.
(3) At the same time the referral is sent to DOJ, it will be
sent to OECM and the appropriate Headquarters program office for' a
simultaneous and independent review to determine whether any other
significant policy/legal issues exist which would impact filing.
(4) Headquarters offices will complete their reviews within
35 days of receipt of the referral. Each Headquarters office will
notify the Region in -writing of any significant issues identified
or that no such issues have been identified. A copy of this
memorandum will be sent to DOJ. The Headquarters offices will
coordinate their reviews and, to the extent possible/ provide a
.consolidated response.
(5) If significant issues are identified and not readily
resolved, Headquarters (the Assistant Administrator for OECM),
after consultation with the program office Assistant Administrator,
may request the Regional Administrator to withdraw the case. If
the Regional Administrator and the Assistant Administrator for OECM
(and, as applicable, the program office Assistant Administrator)
are unable to agree on the appropriate resolution of the issue, the
issue would be escalated to the Deputy Administrator.
(6) If a significant issue is not resolved within 60 days of
the date.of referral, the case will normally be withdrawn pending
resolution unl«»« an appropriate "hold" letter is sent to DOJ in '
accordance with the procedures contained in the memorandum entitled
"Expanded Civil Judicial Referral Procedures" dated August 28, 1986
(document GM-50 in the General Enforcement Policy Compendium.)
(7) Headquarters will NOT request withdrawal of a referral
package for any of the following reasons:
— overall quality of referral package
— strategic value of case
— adequacy of documentation
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98915*
-2-
(8) If DOJ makes a tentative decision to return a referral
to EPA, it will consult with the Regional Office and OECM prior
to making a final decision to return the case.
(9) Headquarters will evaluate on a generic basis (e.g.,
trends or repeated concerns) the quality/strategic value of a
Region's referrals. Concerns relative to issues of quality or
strategic value will be raised informally as soon as they are
identified.
(10) Headquarters oversight will be accomplished primarily
through annual program and OGC/OECM reviews, or ad hoc reviews
as problems are identified in a given Region.
Note; Where a referral also transmits a signed consent decree
for Headquarters approval, the procedures applicable to
processing settlements shall apply in lieu of these
procedures.
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98915A
CASES WHICH WILL
TO BE REFERRED THROUGH HEADQCARTgPfi
ALL MEDIA!
Parallel Proceedings — Federal civil enforcement
matters where a criminal investigation of the same
violations is pending
RCRA/CERCLA;
UST enforcement
Enforcement of RCRA
technology regulations
land ban and minimum
Enforcement of administrative orders for access
and penalty cases for failure to comply with
requests for access (Section 104)
Referrals to enforce Title III of SARA,
Community Right-to-Know provisions
the
TSCA/FIFRA;
Referrals to compel compliance with or restrain
violations of suspension orders under FlfRA
Section 6(c)
FIFRA actions for stop sales, use, removal, and
seizure under Section 13
Referrals to enforce Title III of SARA, the
Community Right-to-Know provisions
Injunctive actions under Section 7 of TSCA
(actions for injunctive relief to enforce the
regulations promulgated under Section 17 or
Section 6 could be directly referred)
WATER;
Clean Water Act pretreatment violations —failure.
of a POTW to implement an approved local
pretreatment program
Clean Water Act permit violations relating to or
determined by biological methods or techniques
measuring whole effluent toxicity
PWSS cases to enforce against violations of
administrative orders which were not issued using
an adjudicatory hearing process
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98 9 1.5 A
WATER
fcontd.) Cases brought under the Marine Protection,
Research and Sanctuaries Act (MPRSA)
UIC cases1
AIR; Smelter cases
1 The ten case* referred to date indicate that the
regulations raise interpretive issues of continuing national
significance. There also appears to be a need for greater
experience at gathering the .facts necessary to prove violations
and support appropriate relief. For this reason, the first 3 uic
cases from each Region shall be referred through Headquarters.
Once the Associate Enforcement Counsel for OECM determines that
the Region has completed three successful referrals, the Region
nay proceed to refer these cases directly to DOJ.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENC'
G'CN j : 20460
APR T ;OO
9831.6
MEMORANDUM
SUBJECT: /Interim E.inal /Guidance Package on Funding CERCLA State
i knforpewent Actions at NPL Sites
J / i It* "'"
Ut whistfo
FROM: Ut wistfon
• /Assistant Administrator
TO: "Regional Administrators
Regions I - X
On October 1, 1986, the Office of Solid Waste and Emergency
Response issued two separate guidances on funding States in
support of their enforcement actions at CERCLA National
Priorities List (NPL) sites. One guidance covered activities
related to negotiations with and administrative and judicial
enforcement actions against potentially responsible parties
(PRPs) ; while the other covered activities related to the
oversight of PRP response actions.
This package includes updated guidances which supersede the
October 1, 1986 guidances. The revised guidances on funding
State enforcement and PRP oversight incorporate relevant
comments, as well as consider various issues that have arisen
since passage of SARA. Therefore, along with this memorandum the
attached package is made up of -the following components:
o Guidance on CERCLA funding of State enforcement
actions at National Priorities List sites (9831. 6a);
o Guidance on CERCLA funding of Potentially Responsible
Party Oversight by States at National Priorities List
Sites (9831. 6b);
o Cost Estimates for Budgeting State Enforcement
Activities (9831. 6c); and
o Recommended Procedures for Headquarters/Regional Review
and Concurrence of Initial Enforcement Cooperative
Agreements (9831. 6d).
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9831.6
Along with this "interim final" package, the Grants
Administration Division (GAD), in conjunction with OSWER, has
developed an assistance-related manual entitled "Guide for
Preparing and Reviewing Superfund Cooperative Agreements"
(September 1987). This manual is to.be used when reviewing and
awarding actual cooperative agreement applications submitted by
States. In the near future, this manual will include a model
enforcement cooperative agreement application, which will be
representative of the scope and content expected from the States.
A copy of this manual can be obtained by contacting your Regional
Assistance Administration Unit (AAU).
This package and GAD's guidance, along with the Office of
Emergency and Remedial Response's manual on "State Participation
in the Superfund Program," the "Interim Guidance on State
Participation in Pre-Remedial and Remedial Response" (OSWER, July
21, 1987), the regulation on "Intergovernmental Review of
Environmental Protection Agency Programs and Activities" (40 CFR
Part 29), the "General Regulation for Assistance Programs" (40
CFR Part 30), the guidance on "State Procurement under Superfund
Remedial Cooperative Agreements (OERR, March 1986) and the
regulation on "Procurement Under Assistance Agreements" (40 CFR
Part 33), should form the basis for preparing and administering
cooperative agreements concerning CERCLA State-lead enforcement
actions at NPL sites.
In addition, the upcoming revisions to the National
Contingency Plan and the draft "Guidance on Preparing a Superfund
Memorandum" of Agreement" (SMOA)" jointly issued by OERR and OWPE
on October 5, 1987 will provide EPA Regional offices and States
with a specific understanding of the extent and manner in which
States should involve themselves in CERCLA enforcement and
remedial responses and the extent of involvement and oversight
expected of EPA during State conduct of such responses.
Furthermore, some issues outlined during review of the previous
funding guidances will be further addressed in future guidance on
CERCLA State enforcement. Please see the attachment to this
memorandum for those issues and the direction to follow.
There are several additional policy points to follow when
implementing this guidance package.
1. states should clearly understand that funding under the
guidances is related to encouraging or compelling PRPs to
undertake traditional response activities to clean up a
site (such as negotiations for remedial investigations,
feasibility studies, remedial designs and remedial actions)
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9831.6
and to conduct necessary technical, administrative and
enforcement activities during their oversight of the PRPs'
response (such as oversight in the field, compiling
administrative records, preparing remedy decision documents
and enforcing the provisions of settlement agreements). At
this time, EPA will not provide funding solely to litigate
claims such as to recover past costs or natural resource
damages.
2. Although the guidances do not specifically address
funding States during Federal facility response actions
at National Priorities List sites, funding by EPA will
nonetheless be considered under the following
situations. Management assistance funding may be
provided to support State involvement in pre-remedial
activities and activities leading to signature and
execution of an agreement under Section 120(e) of
CERCLA. If the State is a. signatory to the agreement.
the agreement should spell out the State's
responsibilities for the site, including oversight
responsibilities. Funding through a cooperative
agreement may then be available to conduct these
oversight responsibilities. In the absence of an
oversight role spelled out in the agreement, management
assistance funding may be available to ensure adequate
State involvement during the facility's response
action. If the State is not a, signatory to the
agreement. oversight activities will be conducted by
EPA. However, management assistance funding may still
be available to ensure adequate State involvement.
Furthermore, EPA's current position is to not fund
States for litigating or taking any enforcement actions
against a Federal facility. Finally, per Section
120(g) of CERCLA, EPA must retain lead responsibility
with respect to its Section 120 authorities over
Federal facility sites on the National Priorities List.
As such, Federal facility sites cannot be designated as
"State-lead."
3. Cost documentation of State intramural and extramural
activities continues to be a critically important
aspect of the Superfund program. As such, the
Financial Management Division's soon to be published
"State Superfund Financial Management and Recordkeeping
Guidance" should be clearly understood and followed by
the Regions and States for all enforcement-related
cooperative agreements developed and funded under this
guidance package. FMD's guidance replaces Appendix U,
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9831.6
"Cost Documentation Requirements for Superfund
Cooperative Agreements" of the Manual "State
Participation in the Superfund Program." The need for
cost recovery, particularly regarding PRP oversight,
should be considered in drafting cooperative
agreements.
4. Provisions outlined in the funding guidances may be
alternatively addressed and agreed to in the SMOA. Of
course, actual funding is done only through a cooperative
agreement. The Region and State should discuss the best
approach to ensuring compliance with the provisions outlined
in the guidances. However, the Region should ultimately
decide whether reiteration or expansion of SMOA provisions
should be made in the cooperative agreement application.
When making this determination, the Region should employ
such criteria as the level of State experience and
capabilities, and past State performance in the CERCLA
cleanup program.
5. Per Section 104(d)(l)(A) of CERCLA, as amended by SARA, EPA
must make a determination on cooperative agreement
applications within 90 days of receipt. Since the 90 day
clock begins when the Regional Assistance Office receives
the linal application from the State, the Regional program
office must ensure that the application is properly logged
in and dated by the Assistance Office. See the "Interim
Guidance on State Participation in Pre-Remedial and Remedial
Response" for further direction on the 90 day review
requirement.
6. EPA Headquarters does not intend to be routinely involved in
reviewing and concurring on enforcement cooperative
agreement applications. However, some Headquarters
involvement in the initial applications received by the
Region is necessary to ensure the guidance is interpreted
correctly and consistently. Therefore, at least the first
application received in 'each Region under the negotiation
and litigation guidance and under the oversight guidance
should be submitted for review and concurrence to the
Director, CERCLA Enforcement Division, Office of Waste
Programs Enforcement. (See the section entitled "Recommened
Procedures for Headquarters/Regional Review of Initial
Enforcement Cooperative Agreements" for the suggested
approach.) After having gone through this mutual
Headquarters and Regional reyi«w, the Regions will only need
to keep Headquarters informed of subsequent applications
through the SCAP and by providing a copy of awarded
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9831.5
agreements. Management assistance cooperative agreements
need not be submitted to Headquarters for review prior to
their award. Finally, per the program delegation,
enforcement cooperative agreements will be awarded by the
Regional office.
7. Beginning in Fiscal Year 1988, State yearly funding
requirements for activities outlined in this guidance
package must be included in the Region's Superfund
Comprehensive Accomplishments Plan (SCAP). The Region and
State should be working closely during the SCAP development
process to ensure that State funding requirements are
adequately addressed in the final plan.
8. The Administrator is highly interested in improving the
role and relationship of State Attorneys General
offices in the Superfund program. In this regard,
during development and review of enforcement
cooperative agreements and SMOAs, the Regional office
should ensure that relevant responsibilities of the
State Attorney General are adequately addressed in the
document. At the request of the Administrator, my
office is also looking into the possibility of
earmarking some Core Program funds for relevant State
Attorney General GERCLA program activities.
As you go about developing cooperative agreement
applications to support CERCLA State enforcement actions, please
feel free to contact Tony Diecidue on FTS(202)-382-4841 or the
appropriate Regional Coordinator in OWPE for assistance on the
various policy or site-specific issues that may need resolution.
cc: Director, Waste Management Division
Regions I, IV, V, VII and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region III and VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Regional Counsel, Region I - X
Regional Assistance Management Contact, Region I - X
Regional CERCLA Branch Chief, Region I - X
Regional CERCLA Enforcement Section Chief, Region I - X
-------
9831.6
ISSUES ON DRAFT GUIDANCE ON
FUNDING CERCLA STATE ENFORCEMENT ACTIONS
The following issues received on the draft guidance on
funding CERCLA State enforcement actions will be further
addressed in future guidance on State involvement in CERCLA
enforcement actions. However, here is policy direction on
proceeding with these issues.
1. Must the State outline their enforcement authorities for the
entire action, or only the authorities for performing a
particular action (such as PRP searches or negotiations)?
When the State submits a cooperative agreement application,
it is assumed the site has already been designated a State-
lead enforcement site. It is also assumed the State will
carry the enforcement response as far along as possible and,
therefore, should spell out the authorities to be used by
the State. Since part of the initial classification process
includes whether adequate enforcement authorities are
available, the State would only need to reiterate them in
the application. For example, a letter from the Attorney
General outlining these authorities could be prepared and
the same letter could be used for each cooperative
agreement. A Superfund Memorandum of Agreement (SHOA) could
also suffice in ensuring that adequate enforcement
authorities are available.
2. Is there any intent to require States to follow the CERCLA
Section 122 settlement provisions?
The procedures spelled out in Section 122 of CERCLA are
related to settlements pursued by the Federal government and
their use is subject to sound discretion at a particular
site (See Section 122(a)). While States can avail
themselves of equivalent procedures, they are not authorized
by EPA to use Section 122 when pursuing enforcement actions
under their own authorities. However, in pursuit of
consistency with the intent of CERCLA, State settlements
will need to be consistent with certain Section 122
procedures and related EPA Superfund enforcement policy and
guidance when negotiating and settling with PRPs uj&ej: 4
cooperative agreement. These include giving notice and
establishing negotiation time frames (Section 122 (e));
ensuring adequate public participation (Section 122(d)); and
requiring that covenants not to sue contain a "reopener"
provision (except for a special covenant not to sue, a djfe
minimis settlement, or in an extraordinary circumstance)
(Section 122(f)). Other Section 122 provisions clearly do
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9831.6
not apply to State-lead enforcement sites, such as mixed
funding (Section 122(b)), since provisions such as this can
only be implemented through settlements with the Federal
government. Therefore, please note that the negotiation and
litigation funding guidance requires a State assurance on
this issue.1
3. There is nothing in the guidances on EPA participation in
State-lead enforcement actions. There is no discussion of
having, or letting, EPA sit in on negotiations or
participate in setting up the strategy for such
negotiations. Should this not be a reciprocal requirement?
The draft guidance on preparing a SMOA discusses, in the
enforcement section, that when developing an agreement the
Region and State should consider and address to what extent
each party will be involved in the other's negotiations with
PRPs. Furthermore, the Region and State continue to have the_
discretion of also preparing site-specific enforcement
agreements. The extent of involvement should be based on
various factors. These include the level of confidence in
and past experience with the State, and site-specific
factors such as the complexity or national significance of
the response action. Consistency of the remedy with Section
121 of CERCLA, the upcoming revisions to the NCP and
applicable EPA guidance, and assurance that it will be
implemented correctly through an enforceable pleading are
the most important concerns. Also, EPA and the States
should not be duplicating the others activities at sites.
Regardless of the extent of Regional involvement in State-
lead enforcement negotiations, settlements at these sites
would typically be two party agreements (State and PRPs)
under State authorities.
Since the reauthorization of CERCLA, EPA has issued
several policies concerning Federal government
implementation of the various Section 122 settlement
procedures. Because these policies are designed for
Federal settlements, they contain numerous requirements
that are irrelevant to or need not be adhered to by
States during their enforcement actions. Also,
consistent with Section 122(a), EPA and th« State can
jointly waive use of the procedures outlined in the
Section. EPA is developing additional guidance to
specifically address and clarify tht relation of the
Section 122 settlement procedures and related policy to
State enforcement actions.
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9831.6
Is EPA responsible for the final selection of remedy at
State-lead enforcement sites? Should EPA participate in the
development of the remedy at these sites even if the work
will be done by the PRPs under a State settlement agreement?
what authority does EPA have if the State believes its
remedy is consistent with the NCP and EPA disagrees?
The upcoming revisions to the NCP state that unless a
State Record of Decision (ROD) or other decision
document is concurred with and adopted in writing by
EPA, EPA shall not be deemed to have approved of the
State decision. The NCP and upcoming guidances will
set forth the procedures for and intent of EPA's
concurrence and adoption of the remedy. States must
recognize that if their procedures and remedies are not
consistent with EPA's (including RI/FSs and Section 121
of CERCLA), it should not be expected that EPA will
approve the remedy. With or without EPA's approval,
however, States nay decide to proceed under their own
authorities and funding. In turn, EPA has the
authority under CERCLA to proceed with its own
enforcement action or attempt to intervene prior to a
State settlement with or litigation against PRPs.
However, one purpose of establishing SMOAs and seeking
EPA concurrence and adoption of the remedy is to avoid
such problems at the remedy selection stage by
outlining roles and responsibilities up front,
including the extent of support agency participation in
lead agency negotiations' and other legal efforts, and a
process for informally resolving disputes (i.e., short
of the courts). Furthermore, please note that when- EPA
is paying for these activities undey a. cooperative
agreement. the State is assuring that their oversight
of PRP technical activities and their selection of a
remedy for the site will be consistent with CERCLA, as
amended by SARA, the NCP and applicable EPA guidance.
The guidance assumes that States can issue standard notice
letters. Should careful examination of standard notice
letter content be done to ensure that a State letter
provides adequate notice for future State or Federal claims,
and to ensure that the State letter is sufficient to EPA and
DOJ attorneys? Should there be a requirement that EPA
approve the general form notice letter the State intends to
use?
It has always been assumed that States would attempt to
notify PRPs of their potential liability and offer them an
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9831.6
opportunity to conduct necessary response actions at State-
lead enforcement sites. These activities are to be
performed under State authorities (note that statutory
authority is generally not required for these activities).
However, as stated in question #2 above, States will need to
be consistent with the Federal procedures for notifying PRPs
and establishing negotiation timeframes when funded under a
cooperative agreement. Any review, consultation and/or
concurrence role for EPA with regard to State notice letters
should be worked out during the SMOA or CA development
process.
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CERCLA FUNDING OF
STATE ENFORCEMENT ACTION AT
NATIONAL PRIORITIES LIST SITES
-------
983l.6a
CERCLA FUNDING OF
STATE ENFORCEMENT ACTIONS
AT NATIONAL PRIORITIES LIST SITES
PURPOSE
The purpose of this guidance is to assist EPA Regional offices and States on
funding, under a CERCLA cooperative agreement (CA), of State search and
notification, negotiation, and administrative and judicial enforcement efforts to
encourage or compel hazardous waste site cleanups by potentially responsible parties
(PRPs).
BACKGROUND
In its opinion of February 12, 1986, regarding CERCLA funding of State
enforcement efforts, the Office of General Counsel reconsidered and expanded upon
a July 20, 1984, opinion to allow limited assistance for identification of PRPs and
gathering of evidence, remedial investigations and feasibility studies (RI/FS) to
support State or Federal enforcement actions, and oversight of RI/FSs and remedial
designs (RD) conducted by PRPs. The February 12, 1986, opinion allows such
activities as oversight of PRP-conducted remedial actions (RA), reporting to the
public on private party response actions, negotiation, and administrative and judicial
enforcement to encourage or compel PRPs to initiate response actions at National
Priorities List (NPL) sites. The Superfund Amendments and Reauthorization Act of
1986 (SARA) also confirms this interpretation by expanding the activities eligible for
CA funding under Section 104(d)(l) of CERCLA.
The intent of funding for tnese activities is to successfully secure the greatest
number of private party cleanup actions possible. In achieving this goal. States will
need to be consistent with EPA's Superfund enforcement policies and procedures.
This is necessary to ensure that site cleanups:
o Are consistent with CERCLA, as amended by SARA, and the National
Contingency Plan.(NCP);
o Are conducted in a timely manner and allow for deletion from the NPL;
and
o Enable EPA and States to conduct future CERCLA cost recovery actions.
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983l.6a
GUIDANCE
Cooperative Agreement funding for PRP searches, issuance of notice letters,
negotiation, or administrative and judicial enforcement will onl\ be provided at NPL
sites that have been designated as State-lead enforcement. In determining lead
designation. Regional offices and States should use the criteria outlined in the
EPA/Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) policy memorandum of October 2, 1984. In addition, EPA Headquarters
is in the process of developing additional classification guidance based upon SARA
and the upcoming revisions to the NCP. Prior to drafting or accepting a
cooperative agreement application for review and award, the criteria should be
applied to the site. This includes sites currently designated as State-lead
enforcement and sites States are seeking to place in the State-lead enforcement
category. Once the designation is made and a State requests CA funding, the
Region should pay particular attention to the itemized budget submitted along with
the application. The budget should be carefully reviewed to ensure that adequate
resources and staff expertise are devoted to the site. Along with these
considerations, the conditions and requirements outlined in this guidance must be
incorporated into the CA application prior to award.
This guidance does not preclude the Regions from including additional
enforcement-related conditions in the application, if warranted. Furthermore, it is
imperative that applicable provisions outlined in Appendix F of the EPA manual
State Participation in the Suoerfund Program be incorporated into each CA
application. See Attachment A for those applicable provisions and sample language
for the enforcement provisions.
State annual funding requirements for activities outlined in this guidance must
be included in the Region's Superfund Comprehensive Accomplishments Plan (SCAP).
The Region and State should be working closely during the SCAP development
process to ensure that State funding requirements are adequately addressed in the
final plan. When developing CA applications for these activities, the State Project
Officer (SPO) should work closely with the Remedial Project Manager (RPM) and
Regional Counsel to ensure that the application is sufficient and complete. SPOs
should also coordinate closely with their Headquarters Regional Coordinator in the
Office of Waste Programs Enforcement (OWPE). The Regions will continue to be
responsible for awarding the CA.
I. Funding State PRP Searches at Pre-NPL and NPL Sites
If EPA and the State agree to designate sites as State-lead enforcement, the
State should identify PRPs. In order to conduct PRP searches in a timely manner,
EPA may fund States to perform this activity prior to proposal of a site on the
NPL. Candidate sites for this funding are those undergoing a listing site
investigation or the NPL scoring quality assurance process. This will enable PRP
searches to be completed within six months of proposal of the site on the NPL.
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A. Condition; for Funding State PRP Searches L'ndir a Cooperative Agreement
In order to receive funding for PRP searches, the State must agree to include
:!ic following information in its CA application and be prepared to make the
following assurances in the final CA. Except where noted, the following
information and assurances must be certified by the State's Governor. Attorney
General, designee. or appropriate State agency. In States where these authorities
overlap among different State offices, all applicable signatures will be required.
1. The State must provide a letter outlining the State enforcement
authorities that provide the basis for initiating enforcement actions
against PRPs (e.g., administrative or judicial enforcement) which can
result in securing the necessary response.
2. The State must designate a lead agency RPM and lead State attorney for
the site.' Also, if multiple State offices are funded for a site, one must
be designated as the lead State agency.
3. The State must agree that PRP searches will be consistent with relevant
EPA Superfund enforcement policy and guidance.
4. The State must retain, in a central file, all documents produced,
collected, received, or issued as part of the PRP search funded through
the CA. These documents may be required for subsequent State or
Federal enforcement action, or future cost recovery activities. Examples
of such documents include:
a. Site histories (such as ownership of property through titles or
property sales; operations at the facility; and compliance or non-
compliance with environmental regulations);
b. Title searches and summary of findings;
c. Lists of names, addresses (past and current, if applicable), and phone
numbers of PRPs identified (such as owners, operators, generators,
and transporters); volume and nature of substances sent to the site
and volumetric ranking;
d. Files on each PRP with evidence (including responses to information
requests) of shipments to the site, amount shipped and the fact that
hazardous substances were shipped.
e. Corporate histories, status, and information relating to the
availability of PRPs to pay for or perform a cleanup, including
financial assessments and insurance information as available; and
The same RPM and attorney can be designated the lead for more than one
site, if a multi-site CA is developed by and awarded to the State.
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983i 6a
Conclusions and recommendations for pursuing additional leads or
enforcement actions (such as unconfirmed PRPs thai could not be
conclusively linked to the site).
B. Fundable PRP Search Tasks
This section outlines specific fundable tasks for conducting PRP searches.
These tasks parallel those conducted by EPA.
I. Identifying site owners or operators during a preliminary assessment and
site inspection.
2. Conducting searches to examine legal descriptions and owners of property
(e.g., title searches), government files, reports, and court files. Also, to
examine technical information on the types of waste disposed of and
methods of disposal used.
3. Identifying initial contacts (such as site owners or operators) to gather
documents regarding names and addresses of other parties involved and
their contributions to the site.
4. Reviewing information provided by initial contacts, which may lead to the
discovery of additional PRPs. This information may include documents
such as customer lists, generator invoices, bills and receipts, and owner
or operator records and manifests.
5. Conducting on-site investigations to identify additional PRPs. These
investigations may include an inventory of drums, and wastes found on
site, review of abandoned records, vehicles, buildings, etc.
6 Conducting off-site investigations to provide new leads and identify
additional PRPs. These investigations may include interviews with local
police, fire and health department personnel, local residents. Chamber of
Commerce staff, bank personnel, and local industry representatives.
7. Issuing information request letters.
8. Reviewing and .retrieving information from various data bases.
Commercial data bases may provide corporate information about PRPs,
technical information on specific chemicals, ownership of property, and
operations and employees of various firms.
9. Verifying and documenting the various types of information collected
during the PRP search process. This effort may include establishing a
data base to maintain this information and information collected through
notice and information request letters.
10. Identifying PRPs by name and address, indicating the volume and nature
of substance contributed by each PRP and ranking PRPs by volume.
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9831.63
11. Securing site access to conduct any of the above mentioned tasks. No
EPA funds may be used to compensate site owners for access.
Community relations tasks are also allowable activities under a CERCLA CA.
Specifically. States should contact appropriate local officials and community
representatives if there is any possibility of citizen interest or concern about
potential State enforcement actions. This should also include conducting community
interviews to assess public concerns, irarn about additional information on the site
and PRPs, and prepare a community relations plan. Chapter 6 of the guidance
entitled Community Relations in Suoerfund • A Handbook should be consulted when
requesting CA funds for, and when developing, such tasks.
II. Funding State Issuance of Notice Letters and Negotiation Activities^ at NPL
Sites
If EPA and a State agree to designate sites as State-lead enforcement, the
State should attempt to notify PRPs of their potential liability and attempt to
secure their commitment for site cleanup. Therefore, general notice as well as
special notice to PRPs and negotiation for PRP conduct of the RI/FS and/or RD RA
should begin within the time frames established by Section 122 (e) of CERCLA and
relevant EPA Superfund enforcement policy and guidance.
In order to issue notice letters within a reasonable timeframe upon proposal of
a site on the NPL, EPA may fund States to prepare notice letters prior to such
proposal. Candidate sites for this funding are those having received a preliminary
HRS of 28.5 or better and planned to undergo NPL quality control review.
A. Conditions for Funding State Issuance of Notice Letters and Negotiations
Under a Cooperative Agreement
In order to receive funding for issuing notice letters and negotiating with
PRPs, the State must agree to include the following information in its CA
application and be prepared to make the following assurances in the final CA,
Except where noted, the following information and assurances must be certified by
the State's Governor. Attorney General, designee, or appropriate state agency. In
States where these authorities overlap among different State offices, all applicable
signatures will be required.
1. The State must provide a letrer outlining the State enforcement
authorities that provide the basis for initiating enforcement actions
against PRPs (e.g., administrative or judicial enforcement) which can
result in securing the necessary response.
2. The State must designate a lead agency RPM and lead State attorney for
the site. Also, if multiple State offices are funded for a site, one must
be designated as the lead State agency.
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3. The State must conclude successful negotiations by entering into an
enforceable order or decree, or by issuing some other enforceable
document requiring the PRP to conduct an RI 'FS and/or RD RA in
accordance v.ith CERCLA. as amended by SARA (including remedies
consistent with Section 121 cleanup standards), the NCR, and applicable
EPA policv and guidance.
4. The State must agree to conduct negotiations and develop settlements
consistent with CERCLA Section 122 procedures on notice and negotiation
time frames (Section 122(e)), ensuring adequate public participation
(Section I22(d)) and requiring that covenants not to sue contain a
"reopener" provision (except for special cownants, d£ minimis settlements
or extraordinary circumstancesKSection 122(0).
5. For issuing notice letters and negotiating with PRPs to conduct an RI'FS.
the State must agree that the issuance of notice letters and negotiations
will be consistent with CERCLA, as amended by SARA, the NCP, and
relevant EPA Superfund enforcement policy and guidance.
o If a settlement is not reached within 90 days after notice to PRPs,
the State must notify EPA and recommend either continuing with
negotiations or other enforcement actions or requesting initiation of
a State- or Fund-financed RI/FS. (If negotiations have begun prior
to awarding the CA, the State must notify EPA within 90 days after
award.) If EPA and the State determine that negotiations should
not continue, the State may request that the CA be amended to
redirect remaining funds toward a Fund-financed RI/FS (subject to
availability of funds). If EPA and the State determine that
negotiations should continue, the State must provide a revised time
schedule and date for conclusion of negotiations.
6. For issuing notice letters and negotiating with PRPs to conduct an
RD/RA, the State must agree that, the issuance of notice letters and
negotiations will be consistent with CERCLA, as amended by SARA, the
NCP, and relevant EPA Superfund enforcement policy and guidance.
o If a negotiated settlement is not reached within 120 days after
notice to* PRPs, the "State must notify EPA and recommend either
continuing with negotiations, proceeding with other enforcement
actions, or establishing a schedule for conducting a Fund-financed
cleanup. (If negotiations have begun prior to awarding the CA, the
State must notify EPA within 120 days after award.) If EPA and
the State determine that negotiations should not continue, the State
may request that the CA be amended to redirect remaining funds
toward other administrative or judicial enforcement activities
(subject to availability of funds). If EPA and the State determine
that negotiations should continue, the State must provide a revised
time schedule and date for conclusion of negotiations.
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9831.63
The State must compile and maintain an administrative record as required
under Section 113 of CERCLA, the NCP and applicable EPA guidance.
8. The State must conduct a community relations program in accordance
with the NCP and applicable EPA guidance.
9. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult wjih EPA regarding the use of such laws or other
restrictions'1.
10. The State must retain in a central file ail documents produced, collected,
received, or issued as part of its issuance of notice letters and
negotiations with PRPs. These documents may be required for subsequent
State or Federal enforcement action or future cost recovery activities.
Examples of such documents include:
a. Lists of names of PRPs receiving notice letters or information
request letters and copies of the letters;
b. Information and data collected as a result of PRP searches and
notice letters or information request letters (waste-in lists;
volumetric rankings; etc.);
c. Descriptions of the .problems at the site (such as the site history,
environmental and public health concerns, and previous response and
enforcement activities);
d. Negotiation strategies or goals and specific response actions sought;
e. Listings of PRPs involved in the negotiations (such as names.
addresses and phone numbers, and other possible PRPs and reasons
they were considered or rejected);
f. Expected and actual time schedules and dates for conclusion of
negotiations (such as first negotiation session with PRPs, etc.); and
g. Copies of the final order or decree and accompanying documents
(RI/FS or RD/RA statement of work and work plans).
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
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B. Fundable \'on;e Letter and Negotiation Tasks
This section outlines specific fundable tasks for conducting negotiations with
PRPs. These tasks parallel those conducted b\ EPA.
I. Various tasks may be conducted to notify PRPs. Fundable tasks include:
a, Identifying recipients of notice letters by reviewing the results of
PRP searches.
b. Drafting notice letters to be issued to PRPs. This task may include
tailoring EPA's model notice letter to address the specifics of the
case or to request specific responses from various PRPs.
c. Mailing notice letters. This task also includes ensuring knowledge
that the letters are received by PRPs (e.g., certified return receipt)
and that replies are sent to the State.
d. Receiving and sorting out response letters and reviewing and
answering questions raised by PRPs.
e. Maintaining copies of notice letters issued, responses received, and
other documents relevant to the site.
f. Releasing the names of notified PRPs, in order for all notified
parties to begin organizing among themselves in anticipation of
negotiations with the State. Releasing the names of notified PRPs
to other interested parties may be done in accordance with State
Freedom of Information laws and requirements.
g. Constructing other relevant information (such as a summary of
volumetric contribution) to help in organizing PRPs and preparing
for negotiations with PRPs.
2. Various tasks may be conducted during negotiations with PRPs. These
tasks can be broken down into three broad areas: project management,
technical tasks, and legal {asks. (Project management and technical staff
may perform parts of some legal tasks, and legal staff may perform parts
of some project management tasks.) Fundable tasks for these three areas
include:
a. Analyzing information provided by PRPs in response to notice letter
and information requests (such as development of transactional data
bases using waste-in lists, volumetric rankings, and type of
involvement and years of association with the site).
b. Reviewing relevant and applicable policies and guidance documents.
c. Analyzing, reviewing, and providing comments on work plans,
samples, studies, and other scientific and technical data.
d. Assessing site conditions.
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983 i.62
e. Defining technical points open for discussion (such as number and
placement of samples; scope of the investigation; remedial options
to be considered; cleanup standards and techniques to be met; and
operable units to be addressed).
f. Reviewing and responding to PRP proposals and/or counter proposals.
g. Identifying applicable and relevant and appropriate requirements
(ARARs).
h. Establishing a negotiation team (legal and technical members) and
defining each team member's role, authority, and responsibilities.
i. Holding meetings to follow up the notification process.
j. Performing legal research (such as applicable laws, need for
precedent, etc.) to support the negotiation effort.
k. Negotiating with PRPs (including jje. mjnimis parties, et al.).
1. Analyzing settlement alternatives.
m. Monitoring strengths and weaknesses of State and PRP positions and
evidence to be taken to trial should the negotiations fail.
n. Preparing draft orders and decrees for PRP review and comment.
o. Assessing PRP comments on the draft order and preparing and
issuing the final order.
p. Meeting with EPA and/or expert witnesses to discuss the draft order
and other aspects of the enforcement action.
q. Developing a payment plan for fines or cash settlements.
Community relations tasks are also allowable activities under a CERCLA CA.
The State is responsible for conducting a community relations program during
negotiations with .PRPs. The State should refer to Chapter 6 of the guidance
entitled Community. Relations in Suoerfund - A Handbook when requesting CA funds
for, and when developing, such a program.
III. Funding Sate Administrative and Judicial Enforcement Actions it NPL Sites
If EPA and a State agree to designate cites as State-lead enforcement, and
private parties do not agree willingly to clean up the site, the State may pursue
administrative or judicial enforcement action against PRPs to compel cleanup (in
State or Federal Court, as appropriate). These actions are considered while an
RI/FS is being completed in order to plan, in the event that a settlement is not
reached, whether the design is to be financed by the Fund, whether to issue a
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983l.6a
unilateral order and or whether to file a judicial action for injuncme relief
Therefore. EP\ *ill not fund these actions unless the steps outlined above have
been completed or pursued. Where this situation occurs, EPA may fund the State
for these actions against the PRPs.
However. EPA win consider other factors that justify or require pursuing
administrative or judicial enforcement to compel performance of the RI/FS. For
instance. States as part of their enforcement process may typically issue unilateral
administrative orders either to initiate the negotiation process (tantamount to a
notice) or at the termination of negotiations where no settlement is reached (i.e.,
PRPs failed to execute or sign the enforcement document). EPA may fund the tasks
necessary to prepare and issue the unilateral administrative order. The State must
outline the factors for pursuing this method of enforcement in the CA application.
A. Conditions for Funding State Administrative or Judicial Enforcement Actions
Under a Cooperative Agreement
In order to receive funding from EPA for administrative or judicial
enforcement actions against PRPs, the State must agree to include the following
information in its CA application and be prepared to make the following assurances
in the final CA. Except where noted, the following information and assurances
must be certified by the State's Governor, Attorney General, designee, or
appropriate State agency. In States where these authorities overlap among different
State offices, all applicable signatures will be required.
1. The State must provide a letter outlining the State enforcement
authorities that provide the basis for initiating enforcement actions
against PRPs (e.g., administrative or judicial) which can result in securing
the necessary response.
2. The State must designate a lead agency RPM and lead State attorney for
the site. Also, if multiple State offices are funded for a site, one must
be designated as the lead State agency.
3. The State must issue a unilateral order and/or file a judicial action
requiring the PRP to conduct an RI/FS or RD/R.A in accordance with
CERCLA, 'as amended by SARA (including remedies consistent with Section
121 cleanup standards), the NCP and applicable EPA policy and guidance.
4. The State must agree to conduct negotiations and develop settlements
consistent with CERCLA Section 122 procedures or. notice and negotiation
time frames (Section 122(e)), ensuring adequate pufc.»c participation
(Section I22(d)) and requiring that covenants not to sue contain a
"reopener* provision (except for special covenants. & minimis settlements
or extraordinary circumstancesXSection 122(0).
5. The State must compile and maintain an administrative record as required
under Section 113 of CERCLA, the NCP and applicable EPA
guidance.
10
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9831.63
The State must conduct a community relations program in accordance
with the NCP and applicable EPA guidance.
In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA. as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions'.
The State must retain in a central file ail documents produced, collected.
received, or issued as part of its administrative or judicial enforcement
against PRPs. These documents are generally required as part of an
action to compel PRPs to take a response action or for cost recovery.
Examples of such documents include:
a. Descriptions of problems at the site (such as the site history,
environmental and health concerns, and responses and enforcement
activities preceding litigation).
b. Objectives of litigation (such as relief and/or monetary penalties
sought).
c. Statutory provisions upon which the case is being built (such as
State and/or Federal statutes).
d. Factors leading to the need for litigation (such as the legal history
of the case and other elements of the case).
e. Proposed litigants and evidence of use of the site (such as names.
how they are linked to the site, and other possible litigants and
reasons they were considered or rejected).
f. Potential problems with the litigation (such as any anticipated
defenses, problems with consistency with NCP, and reasons for
urgency in proceeding with litigation).
g. Summary of the contents of the documentary file (such as technical
documents, administrative decisions, correspondence, pleadings.
documentation and minutes of negotiations and technical discussions
with PRPs, and other relevant documents).
h. Previous settlement discussions and proposals made by the State
and/or PRPs.
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
11
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9831.6a
i. Expected and actual time schedule for litigation (such as motion for
first discovery, first summary judgment, first deposition, etc.l.
j. Copies of final judgments or consent decrees and accompanying
documents.
B. Fundabte Administrative or Judicial Enforcement Tasks
This section outlines specific fundable tasks for administrative or judicial
enforcement against PRPs. These tasks parallel those conducted by EPA.
Various tasks may be conducted during an administrative or judicial
enforcement action against PRPs. These tasks can be broken down into three broad
areas: project management, technical tasks, and legal tasks. (Project management
and technical staff may perform parts of some legal tasks, and legal staff may
perform parts of some project management tasks.) Fundable tasks for these three
areas include:
I. Analyzing information provided by PRPs in response to notice letters and
information requests (such as development of transactional data bases
using waste-in lists, volumetric rankings, and type of involvement and
years of association with the site).
2. Reviewing relevant and applicable policies and guidance documents.
3. Analyzing, reviewing, and providing comments on work plans, samples,
studies, and other scientific and technical data.
4. Analyzing previous negotiations and PRP proposals and/or counter
proposals.
5. Defining technical points to be addressed during litigation (such as
technical and scientific data supporting selection of a particular remedy,
cleanup standard and/or technique and endangerment, and release of other
elements of proof under State law).
6. Compiling and evaluating testimony and depositions. Hiring expert
witnesses through the State's procurement procedures.
7. Identifying ARARs.
8. Developing a litigation team (legal and technical members) and defining
each team member's role, authority, and responsibility.
9. Organizing all documents collected and generated throughout the case.
10. Performing legal research (such as legal history and theory of the case
and statutes upon which to proceed).
12
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9831.63
11. Reviewing proceedings of previous negotiations and settlement offers.
12. Conducting discovery and deposition tasks.
13. Preparing pleadings, motions, and briefs.
14. Preparing expert witness testimony.
15. Analyzing potential defenses to the case.
16. Assessing settlement alternatives.
17. Preparing pretrial order.
18. Trying the case in court, if a pretrial settlement cannot be reached.
Community relations tasks are also allowable activities under a CERCLA CA.
The State is responsible for conducting a community relations program during an
administrative action or litigation against PRPs. The State should refer to Chapter
6 of the guidance entitled Community Relations in Sunerfund - A Handbook when
requesting CA funds for, and when developing, such a program.
13
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983!.6a
ATTACHMENT A
PROVISIONS SPECIFIC TO STATE-LEAD ENFORCEMENT
ACTIONS AT CERCLA NATIONAL PRIORITIES LIST SITES
State-lead enforcement Cooperative Agreements should contain the provisions
found in Sections 1 (A-F) and 2 (B-M. O-T) of Appendix F of the EPA manual State
Participation in the_Superfund Program. In addition, they should also contain the
following provisions.
A. State Enforcement Authorities
In providing CERCLA funds for State-lead enforcement PRP search,
notification, negotiation, and administrative and judicial enforcement, the State has
shown it possesses the legal authorities to pursue such actions to ensure
performance of the response action. EPA asks the State to outline these authorities
in the Cooperative Agreement application.
"The State possesses the legal authorities to pursue enforcement actions to
ensure performance of the private party response action. The State agrees to
use these authorities if private parties are unwilling to implement the
necessary response action. These legal authorities are outlined in a letter
from [official providing letter), dated [ ] and is attached to the
Cooperative Agreement application."
B. Designation of Lead Site Project Manager and Lead Attorney/Coordination
Among Appropriate State Offices
CERCLA enforcement actions are a joint effort, involving individuals with
project management, technical, and legal expertise. To this extent, enforcement
actions require close coordination and cooperation between technical experts and
attorneys to ensure successful results. EPA asks the State to identify State
officials who will represent this expertise and ensure that the various State offices
involved in the enforcement action are involved in the development and execution
of the Cooperative Agreement.
"The State has designated Iname. title, address, phone number! to serve as lead
agency remedial project manager for the [sijej. The State has designated
fname. title, address, phone number! to serve as lead attorney for the fsitel.
All appropriate State offices involved in the execution of the enforcement
action planned for the (site] have been coordinated with in developing this
Cooperative Agreement application.'
14
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9831.63
C. Consistent with EPA Policy and Guidance1
In pursuing enforcement actions against PRPs. the State must assure that such
actions are consistent v-uh CERCLA. as amended by SARA, the NCP, and relevant
EPA Superfund enforcement policy and guidance.
For PRP Searches:
"In conducting PRP searches funded by this Cooperative Agreement, the State
agrees to ensure that such activities will be consistent with relevant EPA
Superfund enforcement policy and guidance, including but not limited to:
o U.S. EPA, Office of Waste Programs Enforcement, Potentially
Responsible Partv Search Manual. August 27, 1987."
For Issuance of Notice Letters and RI TS Negotiations with PRPs:
"In issuing notice letters and conducting RI/FS negotiations funded by this
Cooperative Agreement, the State agrees to ensure that such activities will be
consistent with CERCLA, as amended by SARA, the National Contingency Plan,
and relevant EPA Superfund enforcement policy and guidance, including but not
limited to:
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance .on Notice Letters. Negotiations and Information Exchange.
October 19, 1987;
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Potentially Responsible Party Participation in Remedial
Investigations and Feasibility Studies, (pending);
o U.S. EPA, Office of Emergency and Remedial Response, Guidance on
Remedial Investigations under CERCLA and Guidance on Feasibility
Studies under CERCLA. June 1985."
For Issuance of Notice Letters and RD/RA Negotiations with PRPs:
"In issuing notice letters and conducting RD/RA negotiations funded by this
Cooperative Agreement, the State agrees to ensure that such activities will be
consistent with CERCLA, as amended by SARA, the National Contingency Plan,
and relevant EPA Superfund enforcement policy and guidance, including but not
limited to:
o U.S. EPA, Office of Waste Programs Enforcement, Interim Guidance
on Notice Letters. Negotiations and Information Exchange.
October 19, 1987;
The policies cited in this section should not be construed as all inclusive or
entirely relevant to each site-specific enforcement action. Other policies that
may exist or be developed in the future may also need to be referenced in a
Cooperative Agreement. In addition, some of the policies listed above are
currently being revised (such as the RI/FS and RD/RA guidances):
15
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983l.6a
o U.S. EPA. Office of Solid Waste and Emergency Response. Office of
Enforcement and Compliance Monitoring, U.S. Department of Just.cs.
Interim CERCL.A Settlement Policy. December 5. 1985 (to the extent
not superseded by Section 122 of CERCLA);
o U.S. EPA, Office of Emergency and Remedial Response.
Suoerfund Remedial Design and Remedial Action Guidance.
Revised, June 1986."
For Administrative and Judicial Enforcement Actions against PRPs:
"In conducting administrative and judicial enforcement actions funded by this
Cooperative Agreement, the State agrees to ensure that such activities will be
consistent with CERCLA, as amended by SARA, the National Contingency Plan.
and relevant EPA Superfund enforcement policy and guidance, including but not
limited to:
o U.S. EPA, Office of Solid Waste and Emergency Response,
Office of Enforcement and Compliance Monitoring, U.S.
Department of Justice, Interim CERCLA Settlement Policy.
December 5, 1985 (to the extent not superseded by Section 122
of CERCLA);
o U.S. EPA, Office of Emergency and Remedial Response, Suoerfund
Remedial Design and Remedial Action Guidance. Revised, June 1986.'
D. Consistency with Section 122 of CERCLA
State negotiations and settlements will need to be consistent with Section 122
of CERCLA and relevant EPA Superfund enforcement policy and guidance when
State enforcement actions are funded under a cooperative agreement.
"In conducting negotiations and developing settlements funded by this
Cooperative Agreement, the State agrees to be consistent with CERCLA Section
122 procedures on giving notice and establishing negotiation time frames
(Section 122(e)); ensuring adequate public participation (Section 122(d)); and
requiring that covenants not to sue contain a "reopener" provision (except for
a special covenant not to sue. a'jje. minimis settlement, or in an extraordinary
circumstance) (Section 122(f))."
E. Time Frame for Negotiations
When conducting negotiations funded under a CERCLA Cooperative Agreement,
the State must attempt to settle with PRPs within a specified time frame. EPA
asks the State to notify EPA if a settlement is not reached within this time frame
and to recommend whether negotiations should continue with the PRPs.
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983!.6a
For RTFS Negotiations:
"If a settlement is not reached within 90 days after notice to potentially
responsible parties for their conduct of the RI.-'FS. the State agrees to notify
EPA and recommend either (1) continuing with negotiations or other
enforcement actions or (2) requesting initiation of a State or Fund-financed
RI.'FS. (If negotiations have begun prior to award of the Cooperative
Agreement, the State agrees to notify EPA within 90 days after award.) If
EPA and the State determine that negotiations should not continue, the State
may request that the agreement be amended to redirect remaining funds toward
a Fund-financed RI/FS (subject to availability of funds). If EPA and the State
determine that negotiations should continue, the State agrees to provide a
revised time schedule and date for conclusion of negotiations."
For RD'RA Negotiations:
"If a settlement is not reached within 120 days after notice to potentially
responsible parties for their conduct of the RD/RA, the State agrees to notify
EPA and recommend either (1) continuing with negotiations, (2) proceeding
with other administrative or judicial enforcement actions, or (3) having EPA
establish a schedule for conducting a Fund-financed cleanup. (If negotiations
have begun prior to award of the Cooperative Agreement, the State agrees to
notify EPA within 120 days after award.) If EPA and the State determine that
negotiations should not continue, the State may request that the agreement be
amended to redirect remaining funds toward other administrative or judicial
enforcement actions. If EPA and the State determine that negotiations should
continue, the State agrees to provide a revised time schedule and date for
conclusion of negotiations.*
F Formalizing Successful Negotiations, and Administrative or Judicial Enforcement
Actions
In pursuing negotiations with or enforcement actions against PRPs, the State is
required to culminate successful actions by entering into an enforceable order, or
decree or issuing some other enforceable document requiring the PRP to conduct the
response action in accordance with the NCP and relevant EPA policy and guidance.
The State agrees to culminate a successful [type of enforcement action! by
issuing a (type of enforceable' document! for the (name of sitel. requiring the
private parties to conduct the response action in accordance with CERCLA, as
amended by SARA, NCP, and applicable EPA policy and guidance.*
G. Administrative Record
The State agrees to compile and maintain an administrative record consistent
with Section 113 of CERCLA, as amended by SARA, the National Contingency
Plan, and relevant EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Waste Programs Enforcement/Office of Emergency
and Remedial Response, Administrative Records for Decisions on Selection
of CERCLA Response Actions. May 29, 1987.
17
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The record shall contain information upon which the decision on selection of
the response action was based. The record shall be maintained at or near the
site, and a cops shall be maintained at the fname of State lead aeencv
receding ihe cooperative agreement!.
H. Community Relations
"The State agrees to prepare and implement a community relations plan for
this site. The State further agrees to comply with the National Contingency
Plan and all relevant EPA policy and guidance on community relations,
especially Chapter 6, Community Relations in Suoerfund: A Handbook when
implementing the community relations plan throughout the response."
I. Deviation From CERCLA. As Amended Bv SARA
State laws or other restrictions may prevent States from acting consistent with
CERCLA, as amended by SARA. In those instances, the State must agree to
promptly notify and consult with EPA regarding the use of such laws or other
restrictions.
"Where State laws or other restrictions may prevent the State from acting
consistent with CERCLA, as amended by SARA, the State agrees to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions."
J. Maintaining Enforcement-Related Documents in a Central File
The State agrees to maintain a central file of ail documents produced,
collected, received, or issued as part of the enforcement activities funded
under this Cooperative Agreement. The State understands that these
documents may be required for subsequent State or Federal enforcement action
or future cost recovery activities."
K. Changes to Scope of Work
The State must agree to notify EPA in the event that State or PRP plans or
actions substantially change the scope of work for tasks funded under the CA.
The State agrees to notify EPA in the event that State or PRP plans or
actions substantially change the scope of work for tasks funded under this
Agreement. -Prior to issuance, such changes will be submitted to EPA for
review to ensure technical adequacy and compliance with the terms of this
Agreement."
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CERCLA FUNDING OF
POTENTIALLY RESPONSIBLE PARTY OVERSIGHT BY
STATES AT NATIONAL PRIORITIES LIST SITES
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983l.6b
CERCLA FUNDING OF
POTENTIALLY RESPONSIBLE PARTY OVERSIGHT BY
STATES AT NATIONAL PRIORITIES LIST SITES
PURPOSE
The purpose of this guidance is to assist EPA Regional offices and States in
funding, under a CERCLA cooperative agreement (CA), of State oversight of
potentially responsible parties (PRP) conducting remedial investigations (RI),
feasibility studies (FS). remedial designs (RD), and remedial actions (RA) at sites on
the National Priorities List (NPL). The guidance also discusses funding of States
during an EPA-lead enforcement response action.
BACKGROUND
The Office of General Counsel has concluded that CERCLA funding may be
provided to States to support a broad range of enforcement-related response
activities. This is in addition to State-conducted, Fund-financed RI/FS activities to
support enforcement actions at NPL sites. The reason is that such activities are
included under CERCLA Section 104(b) and consequently are eligible for CERCLA
funding.'
The role of States in oversight of a PRP-conducted RI/FS and RD/RA depends
on whether the State or EPA negotiated and entered into the administrative order
(AO) or consent decree (CD). If the State negotiated the AO or CD, then the State
has the lead for oversight of the PRP's work. If" EPA negotiated the AO or CD,
then EPA has the lead for oversight of the PRP's work. When EPA has the lead
for oversight, the State may receive management assistance funding in order to
review PRP response activities at the site.
The State may also, under certain circumstances, undertake various, mutually
agreed upon oversight activities at Federal lead sites. These circumstances include
Federal CERCLA Section 104 and 106 settlements with PRPs in which the State is a
participant, as authorized under Section 121(f) of CERCLA, as amended by SARA,
and State oversight that can result in a more effective and timely response to PRP
implementation activities. Furthermore, States may be used in place of EPA
contractors to meet the qualified third party oversight requirements outlined in
Section 104(aXl) of CERCLA, as amended by SARA.
L.A. DeHihns, Authority to Use CERCLA to Provide Enforcement Funding
Assistance to States. July 20, 1984, and February 12, 1986.
19
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983 1.6b
GUIDANCE
In determining whether to fund a State to provide oversight of a PRP response
action, the Region should employ the same standard of review it uses to evaluate
coniractors providing oversight for the Regional office. The Region should also
assess the State's ability to meet the classification criteria outlined in the EPA and
Association of State and Territorial Solid Waste Management Officials (ASTSV-'MO)
policy memorandum of October 2, 1984, entitled "EPA/State Relations in
Enforcement Actions for Sites on the National Priorities List." In addition. EPA
Headquarters is in the process of developing additional classification guidance based
upon SARA and the upcoming revisions to the National Contingency Plan (NCP). In
reviewing a CA for award, the criteria should be applied to the site. Once the
State requests CA funding, the Region should pay particular attention to the
itemized budget submitted along with the CA application. The budget should be
carefully reviewed to ensure that adequate resources and staff expertise are devoted
to the site. Along with these considerations, the conditions and requirements
outlined in this guidance must be incorporated in the CA application prior to award.
The guidance explains the conditions for awarding funds and lists the fundable
tasks for each activity. This guidance does not preclude the Regions from including
additional enforcement-related conditions in the application, if warranted.
Furthermore, it is imperative that applicable provisions outlined in Appendix F of
the EPA manual State Participation in the Superfund Program be incorporated in
each CA application. See Attachment A for those applicable provisions and sample
language for the enforcement provisions.
State yearly funding requirements for activities outlined in this guidance must
be included in the Region's Superfund Comprehensive Accomplishments Plan (SCAP).
The Region and State should be working closely during the SCAP development
process to ensure that State funding requirements are adequately addressed in the
final plan. When developing CA applications for these activities, the State Project
Officer (SPO) should work closely with the Remedial Project Manager (RPM) and
Regional Counsel to ensure that the application is sufficient and complete. SPOs
should also coordinate closely with their Headquarters Regional Coordinator in the
Office of Waste Programs Enforcement (OWPE). The Regions will continue to be
responsible for awarding the CA.
I. Funding State Oversight of PRPs - State Enforcement Response
If a.State successfully negotiates to have the PRPs conduct the RI/FS or
RD/RA, it will be in the State's interest to oversee their work. States should
obtain a commitment from PRPs to pay for their RI/FS oversight costs when
negotiating with PRPs, prior to either requesting funds from EPA or drawing down
on monies already awarded in a CA. The PRPs may want to reimburse States for
their oversight costs at the end of each year or at the completion of the response
action, rather than providing the monies up front. In this case. States should
assure initial funding of oversight of the PRPs' RI/FS. This may be done using
State funds or EPA funds, to the extent available. Where EPA funds are used,
States may pay back EPA upon receipt of the PRPs' money, or EPA may receive the
money directly from the PRPs.
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983! 6b
There may be situations where post-SARA State RI FS negotiations and
settlements by States do not include a PRP commitment to pay for oversight. The
Regional office must remind the States of the CERCLA Section 104(a)(l) requirement
and closely scrutinize State capability or willingness to seek oversight costs before
proceeding with a CA. Ordinarily, Regions will not fund State oversight costs when
States have not obtained such costs in an order or decree. In addition. States
should arrange for PRPs to pay for their RD7RA oversight as well when negotiating
with PRPs.
A.I Conditions for Funding Under a Cooperative Agreement: Oversight of Rl TS
In order to receive funding from EPA for oversight of a PRP-conducted RI/FS.
the State must include the following information in its CA application and be
prepared to make the following assurances in the final CA. Except where noted.
the following information and assurances must be certified by the State's Governor,
Attorney General, designee, or appropriate State agency.
1. The State must have issued or negotiated an enforceable order, decree, or
other enforceable document requiring the PRP to conduct an RI/FS in
accordance with CERCLA, as amended by SARA, the NCP, and applicable
EPA policy and guidance. A copy of the order must be included in the
CA application.*1
2. The State must provide a letter outlining the State enforcement
authorities that resulted in the issuance or negotiation of the
enforcement document.
3. The State must assure that it believes the PRPs have the technical,
managerial, and financial capability to conduct the RI/FS.
4. The State must assure that it will prepare a Record of Decision (ROD) or
other decision document and select a remedy that is consistent with
CERCLA, as amended by SARA, the NCP, and relevant EPA policy and
guidance.
5. The State must conduct a community relations program in accordance
with the NCP and applicable EPA guidance.0
b If the enforcetble document is a three party agreement (EPA, State, and
PRP), the CA need only cite it since a copy should already be in EPA's
possession.
c See the document Community Relations in Suoerfund: A Handbook, especially
Chapter 6 which deals with community relations during enforcement actions.
21
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983l.6b
6. The State must compile and maintain an administrative record as required
under Section 113 of CERCLA, the N'CP and applicable EPA guidance.
7. The State must agree to the following general principles concerning PRP
payment of RI FS oversight costs, which may be spelled out in the
State's order or decree:
a. The State will document its oversight costs.
b. PRPs will reimburse EPA for its oversight costs (either directly or
through the State).
c. PRPS agree that they are liable to EPA under Section 107 of
CERCLA for unpaid oversight costs, plus associated enforcement
costs and interest from the date of demand by EPA or State.
8. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions'1.
A.2 Conditions for Funding Under a Cooperative Agreement: Oversight of RD/RA
In order to receive funding from EPA for oversight of a PRP-conducted
RD/RA, the State must include the following, information, in its CA application and
be prepared to make the following assurances in the final CA. Except where noted,
the following information and assurances must be certified by the State's Governor.
Attorney General, designee, or appropriate State agency.
1. The State must have issued or negotiated an enforceable order, decree, or
other enforceable document requiring the PRP to conduct an RD/RA in
accordance with CERCLA, as amended by SARA, the NCP, and applicable
EPA policy and guidance. A copy of the order must be included in the
CA application.*
2. The State must provide a letter outlining the Sttte enforcement
authorities that resulted in the issuance or negotiation of the
enforcement document.
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
If the enforceable document is a three party agreement (EPA, State, and PRP),
the CA need only cite it since a copy should already be in EPA's possession.
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983l.6b
3. The State must assure that it believes the PRPs have the technical.
managerial, and financial capability to conduct the RD'RA.
4 The State must submit a ROD or other decision document consistent with
CERCLA. as amended by SARA, the NCP and relevant EPA policy and
guidance. This documentation must be included in the CA application or
be submitted as a condition to drawing down on oversight funds.(
Funding will not be allowed unless EPA formally concurs in writing with
the State's ROD or other decision document.
5. The State must conduct a community relations program in accordance
with CERCLA, as amended by SARA, the NCP and applicable EPA
guidance.
6. In the event that the State determines after execution of the CA that
State laws or other restrictions prevent the State from acting consistent
with CERCLA, as amended by SARA, the State must agree to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions'.
B.I Fundable Oversight Tasks: RI/FS
In preparing and reviewing the CA application, it might be helpful for States
and Regions to consider oversight as consisting of review tasks, field-related tasks,
and enforcement tasks. A community relations program is also an essential aspect
of the response action. States should attempt to specify, in the enforceable
document, the roles and responsibilities of the PRP as distinguished from the roles
and responsibilities of the State in each of these major activities.
1. Review tasks conducted by the State include:
a. Review preliminary planning documents;
b. Review and comment on scope of work and work plans;
f If the enforceable document is a three party agreement (EPA. State, and PRP).
the CA oeed only cite the ROD since a copy should already be in EPA's
possession.
In the course of negotiating the CA, consistency with Section 121 and Section
122 (notice, public participation and covenants not to sue) should be assured.
23
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c. Review and comment on standard operating procedures (such as
quality assurance quality control plans, sampling plans, health and
safety plans, and data management plans);
d. Review and comment on draft RI reports;
e. Review final RI reports;
f. Review and discuss FS objectives;
g. Review and comment on draft FS;
h. Review final FS;
i. Prepare the proposed plan for remedial action and draft and final
ROD;
j. Compile and respond to public comments on the RI/FS and proposed
plan for remedial action;
k. Review PRP monthly progress reports;
1. Organize and participate in technical meetings on the RI/FS with
the PRPs, PRP contractors, and/or EPA.
2. Field-related task's conducted by the State include:11
a. Conduct environmental monitoring (e.g., air, water);
b. Take and analyze split samples or confirmatory samples;
c. Provide on-site presence/inspection of PRP field activities.
3. Enforcement tasks conducted by the State include:
a. Track deliverable schedules and submission dates spelled out in the
enforcement document;
b. Initiate enforcement action for non-compliance with terms and
conditions of the enforcement document.
4. Community relations tasks conducted by the State include:
a. Notify local newspapers of site activities planned or underway;
The amount and scope of field-related tasks to be funded by EPA during
oversight should be negotiated on a case-by-case basis.
24
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9831 6t
b. Conduct discussions wjth the affected communits in the locale ot' the
site,
c. Prepare community relations plans;
d. Hold public comment period on the Rl/FS;
e. Brief local and State officials;
f. Hold public meetings on technical aspects of the site;
g. Prepare fact sheets and press releases and disseminate information;
h. Prepare summaries of public concerns.
B.2 Fundable Oversight Tasks: RD 'RA
1. Fundable oversight tasks: RD
a. Review tasks conducted by the State for RD include:
o Participate in technical design briefings for RD initiation;
o Review design scopes of work;
o Conduct technical meetings on the RD with the PRPs, PRP
contractors, and/or EPA;
o Assist in reviewing preliminary design documents and design
changes which may affect remedy selection;
o Review and comment on value engineering screening submittals;
o Review .and comment on quality assurance project plans, site
safety plans, and intermediate design documents;
o Review and comment on plans for operation and maintenance
developed by PRP;
o Review final RD.
b. Enforcement tasks conducted by .the State for RD include:
o Track deliverable schedules and submission dates spelled out in
the enforcement document.
o Initiate enforcement action for non-compliance with terms and
conditions of the enforcement document.
25
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9831.6t
c. Community relations tasks conducted by the State for RD
include:
o Prepare fact sheets and notify public on RD activities and on
what the RD is expected to entail;
o Continue prior community relations activities as needed.
Fundable oversight tasks: RA
a. Review tasks conducted by the State for RA include:
o Review and comment on PRP or PRP contractor work plans,
site safety plans, and QA/QC procedures;
o Review any construction change orders that may alter the
approved remedy and amend the CA, prepare a discussion of
significant changes from the proposed plan in the Record of
Decision (ROD), and/or amend the ROD as appropriate subject
to adoption of the amended ROD by EPA;
o Review and comment on draft and final RA reports;
o Participate in pre-construction and pre-final construction
conferences;
o Review.PRP or PRP contractor monthly progress reports;
o Organize and participate in technical meetings on the RA with
the PRPs, PRP contractors, and/or EPA;
o Ensure that the remedy is completed ana operational.
b. Field-related tasks conducted by the State for RA include:
o Provide monitoring and oversight of construction activities;
o Take and analyze split samples or confirmatory samples;
o Be present at trial runs and shakedowns of major equipment;
o Participate in pre-final and final inspections and project
acceptance.
c. Enforcement tasks conducted by the State for RA include:
o Track deliverable schedules and submission dates spelled out in
the enforcement document;
26
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9831.65
o Initiate enforcement action for non-compliance with terms and
conditions of the enforcement document.
d. Community relations tasks conducted by the State for RA
include:
o Revise original community relations plans to incorporate any
changes required due to remedial design and construction
activities;
o Conduct discussions with the affected community on the
selected remedy and planned construction activities;
o Hold meetings with the public during the RA.
II. Funding State Management Assistance and Oversight of PRPs - Federal
Enforcement Response
A. Management Assistance During a Federal Enforcement Response
If EPA has negotiated the administrative order or consent decree with the
PRPs, EPA will have the lead for oversight of PRP activities and for community
relations. In this situation. States may receive funding for management assistance.
Management assistance essentially will involve review tasks and is explained in
Volume I of the EPA manual State Participation in the Suoerfund Program. EPA
will not fund States to hire contractors for management assistance tasks.
B. Oversight During a Federal Enforcement Response
The State may also, under certain circumstances, undertake various, mutually-
agreed upon oversight activities in place of EPA. These circumstances may include
the following:
1. Federal CERCLA settlements with PRPs in which the State is a
participant, as authorized under Section 121(0 of-CERCLA, as
amended by SARA.
2. State oversight that can result in a more effective and timely
response to PRP implementation activities.
3. Furthermore, States may be used in place of EPA contractors to
meet the qualified third party oversight requirements outlined in
Section 104(aXD of CERCLA.1
Under this scenario, the State would conduct oversight activities in-house.
27
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9831.6b
This means the State would be conducting some review, field-related, and or
communin relations tasks along with or in place of EPA or EPA's contractor. For
each task, the CA application should clearly outline the roles and responsibilities of
the State as distinguished from the roles and responsibilities of EPA or EPA's
contractor.
Where EPA has the lead for oversight, EPA encourages the State to conduct
oversight tasks only if it has the in-house capability to do the work. Generally,
EPA will not fund the State to hire contractors for oversight tasks unless it
provides adequate justification for their use. Furthermore, EPA will not fund States
to conduct oversight tasks that duplicate EPA's efforts.
28
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9831 6fc
ATTACHMENT A
PROVISIONS SPECIFIC TO STATE-LEAD ENFORCEMENT OVERSIGHT
OF POTENTIALLY RESPONSIBLE PARTIES
State-lead enforcement oversight Cooperative Agreements (CA) should contain
the provisions found in Sections 1 (A-F) and 2 (B-M, 0-T) of Appendix F of the
EPA manual State Participation in the Suoerfund Program. In addition, they should
also contain the following provisions.
A. Isjuin.% an Enforceable Order. Pecree. or Other Enforceable J)ocument
Before EPA funds oversight, the State is required to issue an enforceable
order, decree, or other document that requires the PRP to conduct a RI/FS and/or
RD/RA in accordance with CERCLA, as amended by SARA, the NCP, and applicable
EPA guidance. A copy of this enforcement agreement must be included in the CA
application.
"The State issued a ftvoe of enforceable documentl for the [name of site!
dated [ ], requiring a [yvpe of response action! in accordance with
CERCLA, as amended by SARA, the NCP, and applicable EPA policy and
guidance. A copy of this enforcement agreement is attached to the
Cooperative Agreement application."1
B. State Enforcement Authorities
In providing CERCLA funds for State-lead oversight of PRPs, the State has
shown it possesses the legal authorities to pursue administrative or judicial
enforcement action to ensure performance of the response action. EPA asks the
State to outline these authorities in the CA application.
The State possesses the legal authorities to pursue administrative or judicial
enforcement action to ensure performance of the private party response action.
The State agrees to use these authorities if private parties (1) do not meet the
terms of the order, decree, or other enforceable document, or (2) are unwilling
to undertake subsequent phases of the response action. These legal authorities
are outlined in a letter from (official Dividing letterl. dated \ 1. and
is attached to the Cooperative Agreement application."
If the enforceable document is a three party agreement (EPA, State,.and
PRP), the CA should read "and EPA" after The State" and only cite the
enforceable document since a copy should already be in EPA's possession.
-------
9831.6b
C. Abilin of PRPs to Undertake and Finance the Response Action
In settling with PRPs to undertake the response action, the State believes that
the PRPs have the technical, managerial, and financial capability to conduct the
response action.
For RI-'FS oversight:
"The-State believes that the PRP has the technical, managerial, and financial
capability to undertake the RI/FS."
For RD/RA oversight:
"The State believes that the PRP has the technical, managerial, and financial
capability to undertake the RD/RA."
D. Consistency with EPA Policy and Guidance3
In overseeing PRP conduct of response actions, the State must assure that
such actions are consistent with CERCLA, as amended by SARA, the NCP, and
applicable EPA policy and guidance.
For RI/FS oversight:
"In conducting RI/FS oversight funded by this Cooperative Agreement, the
State agrees to ensure 'that the private party RI/FS is consistent with
CERCLA, as amended by SARA, the National Contingency Plan, and relevant
EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Emergency and Remedial Response. Guidance on
Remedial Investigations Under CERCLA and Guidance on Feasibility
Studies Under CERCLA. June 1985.
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Potentially Responsible Party Participation in Remedial
investigations and Feasibility Studies, (pending).
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Compliance with Applicable or Relevant and Appropriate
Requirements. Federal Register. August 27, 1987."
The policies cited in this section should not be construed as all inclusive or
entirely relevant to each site-specific enforcement action. Other policies that
may exist or be developed in the future may also need to be referenced in a
Cooperative Agreement. In addition, some of the policies listed above are
currently being revised (such as the RI/FS and RD/RA guidances).
30
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98} 1.6t
For RD RA oversight:
"{n conducting RD RA oversight funded by this Cooperative Agreement, the
State agrees to ensure that the private party RD/RA is consistent with
CERCLA, as amended by SARA, the National Contingency Plan, and relevant
EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Emergency and Remedial Response, Manual Suoerfund
Remedial Design and Remedial Action Guidance. June, 1986."
E. Selection of Remedy
"At the completion of the private party RI/FS, the State agrees to recommend
a proposed remedial action plan, develop a Record of Decision (ROD) or other
decision document, and select the remedy consistent with CERCLA. as amended
by SARA, the National Contingency Plan, and relevant EPA policy and
guidance, including but not limited to:
o U.S. EPA, Office of Solid Waste and Emergency Response, Interim
Guidance on Suoerfund Selection of Remedy. December 24, 1986."
F. Change; to Scone of Work
The State must agree to notify EPA in the event that State or PRP plans or
actions substantially change the scope of work for tasks funded under the CA.
The State agrees to notify EPA in the event that State or PRP plans or
actions substantially change the scope of work for tasks funded under this
Agreement. Prior to issuance, such changes, will be submitted to EPA Tor
review to ensure technical adequacy and compliance with the terms of this
Agreement."
G. Community Relations
The State agrees to prepare and implement a community relations plan for
this site. The State will not initiate oversight field activities until EPA has
approved the plan. The State further agrees to comply with the National
Contingency Plan and relevant EPA policy and guidance on community
relations, especially Chapter 6, Community Relations in Suoerfund: A Handbook
when implementing the community relations plan throughout the response."
31
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9831.6b
H. Administrative Record
"The State agrees to compile and maintain an administrative record consistent
with Section 113 of CERCLA. as amended by SARA, the National Contingency
Plan, and relevant EPA policy and guidance, including but not limited to:
o U.S. EPA, Office of Waste Programs Enforcement/Office of Emergency
and Remedial Response, Administrative Records for Decisions on Selection
of CERCLA Response Actions. May 29, 1987.
"The record shall contain information upon which the decision on selection of
the response action was based. The record shall be maintained at or near the
site, and a copy shall be maintained at the fname of State lead Agency
receiving the cooperative agreement!."
I. PRP Pavment of Oversight Costs
The State agrees with the following genera! principles concerning PRP
payment of Rl/FS oversight costs, which may be spelled out in the State's
order or decree:
o The State will document its oversight costs;
o PRPs will reimburse EPA for its oversight costs (either directly or
through the State); and
o PRPs agree that they are liable to EPA under Section 107 of CERCLA for
unpaid oversight costs, plus associated enforcement costs and interest
Trom the date of demand by EPA or State."
J. Deviation From CERCLA. As Amended Bv SARA
State laws or other restrictions may prevent States from acting consistent with
CERCLA, as amended by SARA. In those instances, the State must agree to
promptly notify and consult with EPA regarding the use of such laws or other
restrictions.
"Where State laws or other restrictions may prevent the State from acting
consistent with CERCLA, as amended by SARA, the State agrees to promptly
notify and consult with EPA regarding the use of such laws or other
restrictions."
32
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COST ESTIMATES FOR BUDGETING STATE ENFORCEMENT ACTIVITIES
-------
983I.6C
COST ESTIMATES FOR BUDGETING STATE ENFORCEMENT ACTIVITIES
Cost estimates have been developed for CERCLA enforcement activities, which
arc fundable through EPA cooperative agreements (CA). The cost estimates are to
be used solelv ai 2. guide in assisting the State and EPA in budgeting these
activities during development of the Superfund Comprehensive Accomplishments Plan
(SCAP).
EPA has set forth policy on the types of activities to be funded through CAs
in the Office of Solid Waste and Emergency Response (OSWER) guidances which are
listed below and are part of this package.
o CERCLA Funding of State Enforcement Actions at National Priorities List
Sites (OSWER Directive Number 9831.6a).
o CERCLA Funding of Oversight of Potentially Responsible Parties by States
at National Priorities List Sites (OSWER Directive Number 9831.6b).
Each of these guidances describes the conditions for funding under a cooperative
agreement and the activities that will be funded. What follows are cost estimates
which States and EPA may use, at their discretion, for budgeting each of the
activities during the SCAP development process.
In developing these cost estimates, staff were interviewed in the EPA Office
of Enforcement and Compliance Monitoring (OECM) and the Office of Waste
Programs Enforcement (OWPE). Both off ices maintain workload budget models which
assign resources to different activities. In both models, the activities are similar to
those fundable under CAs.
The OECM model contains budget estimates for EPA attorneys and other legal
costs. The OWPE model contains budget estimates for both intramural (EPA
technical and administrative) and extramural (contractor) costs. The extramural
costs were based on a separate OWPE report. At enforcement sites all three
general cost categories •• (1) legal, (2) technical and administrative, and (3)
contractor — are realized in varying proportions depending on the activity taking
place.
The following sections discuss the EPA budget models. The first section
discusses the underlying assumptions applicable to the models and to each
enforcement activity. The remaining sections provide budget estimates for each
activity and the considerations that may have an impact on the estimates.
33
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9831.6c
ASSUMPTIONS
The three following general assumptions should be made:
1. One full lime equivalent (FTE) is equal to 2,080 hours per year based on
220 active days (out of 260). An FTE includes technical and
administrative costs, as well as travel and communications. One FTE.
based on a mean salary of $30,000 a year, is equal to S52.500.
2. An overall rate of $60 per Level of Effort (LOE) hour was used to
estimate the extramural costs.
3. These cost estimates are based solely on Federal experience. Although
States may employ similar cost estimates when developing their SCAP
requests actual State costs funded through CA may be significantly lower
than described by the models.
POTENTIALLY RESPONSIBLE PARTY SEARCHES*
PRP search procedures have become more clearly defined as EPA's program
experience has increased. Additionally, EPA has developed a PRP search manual
which serves to streamline the process and reduce the variance in costs. The costs
may vary depending on the number of PRPs at the site. The point at which a PRP
search is terminated is an additional consideration in the cost estimate. PRP
searches are to be substantively completed in order to issue general notice letters
sufficiently in advance of the RI/FS special notice to allow PRPs to come together.
Nonetheless, at some sites, EPA Regions are continuing PRP search activities during
negotiations and throughout the remedial investigation and feasibility study (RI/FS)
and even into the remedial design and remedial action (RD/RA). While these search
actions are appropriate, the costs of PRP searches should not be attributed to these
activities but rather should be attributed to the PRP search activity.
Average Duration of PRP Search: 2 Quarters (or 6 months)
Average Cost Estimate: $15,225 - Technical and Administrative
$50,000 - Extramural
S 7,875 - Legal
$73,100 - Total
The PRP .search cost includes names and addresses of generators, but does not
include information on .the volume or nature (especially hard evidence that the
materials were hazardous substances) of the hazardous substances or a
volumetric ranking, or the PRP's ability to pay. Information on the volume
and nature of the substances, a volumetric ranking, and ability to pay are part
of the NBAR process. This is described as "NBAR information Collection" in
the OWPE workload budget model.
34
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983I.6C
ISSUANCE OF NOTICE LETTE"S AND NEGOTIATIONS6
Costs for issuing notice letters and conducting negotiations vary depending on
the number of PRPs at a sue. The cost of issuing notice letters and conducting
negotiations also varies depending on the phase of response, Rl/FS or RD/RA.
Since RD 'RA negotiations^involve selection of the remedy and development of the
Record of Decision (ROD) or other decision document, this activity usually takes
longer but requires less extramural support.
Average Duration of Notice Letter
Issuance and Negotiations for RI/FS:
Average Cost Estimate:
2 Quarters (or 6 months)
$14,175 • Technical and Administrative
$50,000 - Extramural
$13.125 - Legal
Average Duration of Notice Letter
Issuance and Negotiations for RD/RA
and Operation and Maintenance:
Average Cost Estimate:
$77.300 - Total
3 Quarters (or 9 months)
$18,375 • Technical and Administrative
$30,000 • Extramural
$ 7,875 - Legal
$56,250 - Total
ADMINISTRATIVE AND JUDICIAL ENFORCEMENT ACTIONS
Most of the current data on 106 injunctive cases-were based upon cases
referred prior to completing the RI/FS. Future cases will not be referred until
after the RI/FS is completed. Remedies and supporting data should be well-defined
for future cases. The Administrative Record will serve as the basis of support for
the technipal remedy that is selected. The estimates below reflect these factors.
Average Duration of Administrative
and Judicial Enforcement Actions:
14 Quarters (or 42 months)
Average Cost Estimate:
S 68,250
$284,000
S 10,500
• Technical and
• Extramural
• Legal
Administrative
$362,750 - Total
This category includes issuance of the notice letters. Also, for RI/FS it
includes a draft order and SOW. For RD/RA it includes a draft consent
decree and proposed work plan, It does not include judicial referral of the
consent decree.
35
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9831.6c
OVERSIGHT OF RI, FS
RI FS oversight cosrs may increase because of the new requirements of the
Supcrfund Amendments and Reauthorization Act (SARA). For a PRP-conducted
R! FS. SARA requires competent third party oversight personnel and allows qualified
contractors to conduct the work. EPA is currently developing guidance that will
define more clearly what appropriate oversight should entail during hazardous waste
sue cleanups (RI FS and RD/RA). This guidance when issued should help with more
effective cost estimates of such oversight.
Average Duration of RI/FS Oversight: 10 Quarters (or 30 months)
Average Cost Estimate: $ 99,750 - Technical and Administrative
$200,000 - Extramural
S 0 - Legal
$299,750 - Total
OVERSIGHT OF RD/RA
A project's construction costs cannot be precisely predicted at the completion
of the RI/FS, and the project error range is as much as 50 percent more to 30
percent less than estimated costs. Non-construction specifications and
environmental controls may require more review than a typical construction project
not related to hazardous waste. The costs for these controls are difficult to
predict. Overall, however, project design and construction costs and the costs to
review the design are interrelated and somewhat predictable given the following
assumptions:
o Construction costs for Superfund remedies are approximately 50 percent
of the cost of total remedial action; and they exclude transportation,
disposal, incineration, and other such costs.
o The estimated average RA cost is S10 million, but may increase to S20
million by 1989 due to SARA'S requirement of more permanent remedies
which may call for using alternative technologies.
o Design costs are roughly 6 percent of the total project construction
costs.
o Design review costs are roughly 25 percent of design costs.
Again, EPA is currently developing oversight guidance that will set forth detailed
procedures for RD/RA oversight.
-------
Average Duration of RD Oversight:
Average Cost Estimate:
Average Duration of RA Oversight:
Average Cost Estimate:
9831.6C
4 Quarters (or 12 months)
S 31.500 - Technical and Administrative
5150,000 • Extramural
S 0 - Legal
5181,500 - Total
12 Quarters (or 36 months)
S 94,500 • Technical and Administrative
5300,000 - Extramural
5 0 - Legal
5394.500 - Total
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RECOMMENDED PROCEDURES FOR
HEADQUARTERS/REGIONAL REVIEW AND CONCURRENCE OF
INITIAL ENFORCEMENT COOPERATIVE AGREEMENTS
-------
983l.6d
RECOMMENDED PROCEDURES FOR HEADQUARTERS/REGIONAL REV]E\\
AND CONCURRENCE OF INITIAL ENFORCEMENT COOPERATIVE AGREEMENTS
1. PROCEDURES FOR REQUESTING FUNDS AND REVISING THE CASE
MANAGEMENT-BUDGET DRAFT COOPERATIVE AGREEMENT APPLICATION
o The Region should request cooperative agreement funds during the SCAP
development process. The SCAP should be revised quarterly, if necessary.
The Region should consult with the respective States prior to developing
and revising the SCAP.
o The State may develop a cooperative agreement application and submit it
to the Regional State Project Officer (SPO).
o The Regional Coordinator (RC) in the Compliance Branch, Office of Waste
Programs Enforcement (OWPE), will review the draft application in
coordination with the Contracts Management Section (CMS) in the
Technical Support Branch, OW'PE.
o OWPE will send its comments on the application to the SPO. The Region
should give the State combined EPA comments (HQ and Region). The
State will then prepare a final application for submittal to the Regional
Administrator for award.
2. REGIONAL SUBMITTAL AND HEADQUARTERS SIGN-OFF FINAL
COOPERATIVE AGREEMENT APPLICATION
o CMS will receive a copy of the final cooperative agreement application,
which will have a commitment notice attached. The dollar amount for
award, cooperative agreement number, and description should already be
entered on the commitment notice.
o CMS and the RC will review the final application and have the
commitment notice signed by the appropriate Headquarters managers. For
CAs of S2SOK or less, the Director of OWTE's signature is required. For
CAs of over S250K, the Assistant Administrator of the Office of Solid
Waste and Emergency Response's signature-is required.
o After signatures have been obtained, CMS will obtain the proper
accounting information from OWPE's Program Management and Support
Office (PMSO).
o After signatures are obtained and accounting information has been
entered on the commitment notice, the CMS will send only the
commitment notice back to the Region for use in awarding the CA.
Delegation has given .CA award authority to the RA. (CMS will keep the
copy of the CA application and a photocopy of the commitment notice on
file for budget purposes). -The SPO will send a signed copy of the CA
document to CMS after award and acceptance by the State.
38
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OSVJER # 98 35. la
Appendix A
INTERIM GUIDANCE ON PP.P PARTICIPATION
IN THE RI/FS PROCESS*
I. INTRODUCTION
This memorandum sets forth the policy and procedures governing the
participation of potentially responsible parties (PRPs', ir. the develop-
ment of remedial investigations (RI) and feasibility studies (FS) under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCL.A) , as amended by the Superfund Amendments and Reauthorizatior.
Act (SARA) of 1986. This memorandum discusses:
o The initiation of enforcement activities including PRP search-
es and PRP notifiration;
o The circumstances in which PRPs may conduce the RI/FS;
c The developr---t of enforceable agreements governing ??.? RI/F?
activities;
o Initiation of PRP RI/FS activities and oversight of the RI/FS
by E?A;
o EPA control over PRP RI/FS activities; and
o PRP participation in Agency-financed RI/FS activities.
More detailed information regarding each of the above topics is
included in Attachments 1-4 of this appendix.
This document is consistent with CERCLA »nd EPA guidance in effect
as of October 1988, and is intended to supersede the March 20, 1964 mem-
orandum from Assistant Administrators Lee M. Thomas and Courtney M. Price
entitled "Participation of Potentially Responsible Parties in Develop-
ment of Remedial investigations and Feasibility Studies Under CEPC-A"
(OSWER Directive No. 9835.1). Users of this guidance should consult the
RI/FS Guidance or any relevant guidance or policies issued after dis-
tribution of this document before establishing EPA/PRP responsibilities
for conducting RI/FS activities. Additional guidance regarding proce-
dures for EPA oversight activities will be available in the Office of
Wast* Program Enforcement's (OWE) forthcoming "Guidance Manual on
•This memorandum was signed by the AA OSWER and released for distribution
on May 16, 1988. Technical clarifications/updates have been made to
this guidance for insertion into Appendix A of the "Interim Final
Guidance for Conducting Remedial Investigations and Feasibility Studies"
(October 1988-OSWER Directive No. 9355.3-01) (Referred to herein as the
RI/FS Guidance).
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Oversight of Potentially Responsible Party Remedial Investigation and
Feasibility Studies".
II. BACKGROUND
Sections 104/122 of CERCLA provide PRPs with the opportunity to
conduct the RI/FS when EPA determine* (1) that the PRPs are qualified to
conduct such activities and (2) they will carry out the,, activities in
accordance with CERCLA requirements and EPA procedures.* The Agency will
continue its policy of early and timely PRP searches as well as early
PRP notification and negotiation for RI/FS activities.
It is also the policy of EPA to encourage the early and active par-
ticipation of PRPs in conducting RI/FS activities. EPA believes that
early participation of PRPs in the remedial process will encourage pp.p
implementation of the selected remedy. PRP participation in RI/FS activ-
ities will ensure that they have a better and more complete understand-
ing of the selected remedy, and thus will be mere likely to agree on
implementation of the remedy. Remedial activities performed by PRPs
will also conserve Fund monies, thus making additional resources avail-
able to address other sites.
As part of the Agency's effort to encourage PRP participation in
remedial activities, EPA will consider the PRPs' role in conducting RI/FS
activities when assessing an overall settlement proposal for the remedial
design and remedial action. For example, when the Agency performs a
non-binding allocation of responsibility (NBA?), the Agency may consider
previous PRP efforts and cooperation. This will provide an additional
incentive for PRPs to be cooperative in conducting RI/FS activities.
Although EPA encourages PRP participation in conducting the RI/FS,
the Ager.cv and CERCLA impose certain conditions governing their partici-
pation. These conditions are intended"to assure that the RI/FS per-
formed by the PRPs is consistent with Federal requirements and that
there is adequate oversight of those activities. These conditions are
discussed both in Section III and'Attachment I of this memorandum.
At the discretion of EPA, a TUP (or group of PRPS) may assume
full responsibility for undertaking RI/FS activities pursuant to
Sections 104/122 of CERCLA. The terms and conditions governing the
RI/FS activities should b« specified in an Administrative Order. The
use of Administrative Orders is authorized in CERCLA Section 122(d)(3);
they ar« the preferred type of agreement for RI/TS activities since they
are authorized internally and therefore, may be negotiated more quickly
The legal authority to enter into agreements with PRPs is found in CERCL*
Section 122(a). This section than refers to response actions conducted
pursuant to Section 104(b). For the purposes of this guidance, Sec-
tions 104/122 will be cited when referring to such authority.
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than Concent Decrees. Before SABA, Administrative Orders were signed
using the authorities of Section 106 of CERCLA. New provisions in SABA
allow for Orders to be signed using the authorities of Sections 104/122;
Section 104/122 Orders do not require EPA to make * finding of iminent
and substantial end*ngerment.
RI/FS activities developed subsequent to the Administrative Order
are set forth in a Statement of Work, which is then embodied or
incorporated by reference into the Order. A Work Plan describing
detailed procedures and criteria by which the RI/FS will be performed is
developed by the PRPs and, after approval by EPA, should also be
incorporated by reference into the Administrative Order.
It is the responsibility of the lead agency to ensure the quality
of the effort if the PRPs assume responsibility for conducting the RI/FS.
Therefore, EPA will establish oversight procedures and project controls
to ensure that the response actions are consistent with CERCLA and the
National Contingency Plan (NCP). Section 104(a)(1) of CERCLA mandates
that no PRP be allowed to undertake an RI/FS unless EPA determines that
the party(ies) conducting the RI/FS is qualified to do so. In addition,
Section 104(a)(1) requires that a qualified party be contracted with or
arranged for to assist in overseeing and reviewing the conduct of the
RI/FS and, that the PRPs agree to reimburse EPA for the costs associated
with the oversight contract or arrangement.
III. INITIATION OF ENFORCEMENT ACTIVITIES
As part of effective management of.enforcement activities, timely
settlements for RI/FS activities are to be pursued. This includes conduc-
ting PRP searches early ir. the site discovery process and subsequent
notification to all PRPs of their potential liability and of their oppor-
tunity to perform response activities. Guidance on conducting timely
and effective PRP searches is contained in the guidance manual, "Poten-
tially Responsible Party Search Manual" (August 17, 1987 - OSWER Direc-
tive Mo. 9834.6).
EPA policy has been to notify PRPs of their potential liability for
the planned response activities, to exchange information about the site,
and to provide PRPs with an opportunity to undertake or finance the
response activities themselves. In the past this has been accomplished
by issuing a "general notice" letter to the PRPs. In addition to the
use of the general notice letter, Section 122 (e) of CERCLA now authorizes
EPA to use "special notice" procedures, which for an RI/FS, establish a
60 to 90 day Moratorium and formal negotiation period. The purpose of
the moratorium is to provide time for formal negotiation between EPA and
the PRPs for conduct of RI/FS activities. In particular, use of the
special notice procedures triggers a 60 day moratorium on EPA conduct of
the RI/FS. During the 60 day moratorium, if the PRPs provide EPA with a
"good faith offer" to conduct or finance the Rl/TS, the negotiation period
can be extended to a total of 90 days. EPA considers a good faith offer
to be a written proposal where the PRPs make a showing of their qualifi-
cations and willingness to conduct or finance the RI/TS. Minor deficien-
cies in the PRPs' initial submittals should not be grounds for a
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determination that the offer is not a good faith offer or that the PRPS
ar* unable to perform the RI/FS.
To facilitate, among other things, PRP participation in the RI/FS
process, Section 122(e)(l) requires the special notice letter to provide
the names and addresses of other PRPs, the volume and nature of sub-
stances contributed by each PRP, and a ranking by volume of substances
at the site, to the extent this information is available at the time of
special notice. Regions are encouraged to release this information to
PRPs when the notice letters are issued. To expedite settlements,
Regions are also encouraged to give PRPs as much guidance as possible
concerning the RI/FS process. It is appropriate to transmit to PRPs
copies of important guidance documents such as the RI/FS Guidance, as
well as model Administrative Orders and Statements of Work. A model
Administrative Order can be found in the memorandum from Gene Lucero
entitled, "Model CERCLA Section 106 Consent Order for an RI/FS"
(January 31, 1985 - OSWER Directive No. 9835.5). This model order is
currently being revised to reflect SARA requirements and will be forth-
coming. A model Statement of Work has been included as Appendix C to
the RI/FS Guidance, while a model Statement of Work for PRP-lead RI/FSs
is currently being developed by OWPE. Other Regional and Headquarters
guidance relating to technical issues may be given to PRPs, as well as
examples of project plans (plans that must be developed prior to the
conduct of the RI/FS) that are of high quality. A description of the
required project plans is included in Attachment II.
Although use of the special notice procedures is discretionary,
Regions are encouraged to use these procedures in the majority of cases.
If EPA decides not to employ the special notice procedures described in
Section 122(e), the Agency will notify the PRPs in writing of such a
decision, including an explanation as to why EPA believes the use of the
special notice procedures is inappropriate. Additional information on
the content of special notice letters, including the use of these notice
provisions, can be found in the memorandum entitled "Interim Guidance on
Notice Letters, Negotiations, and Information Exchange" (October 13,
1987 - OSWER Directive No. 9834.10).
Section 121 (f) (1) requires that the State be notified of PRP nego-
tiations and that an opportunity for State participation in such negotia-
tions be provided. In addition, Section 122(j)(l) requires that if a
release or threat of release at the site in question may have resulted
in damages to natural resources, EPA must notify the appropriate Federal
or Stata Trustee and provide an opportunity for the Trustee to partici-
pate in the negotiations. To simplify the notification of Federal
Trustees, the Agency intends to provide a list of projects in the Super-
fund Comprehensive Accomplishments Plan (SCAP) to the Trustees as notice
to participate in the negotiations, In those cases whare there is reason
to believe that a significant natural resource will be affected, direct
coordination with the Federal and/or State Trustee will be required.
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IV. CONDITIONS FOR EPA INVOLVEMENT IN, AND PRF INITIATION OF, RI/FS
ACTIVITIES
Under Section 104(a)(1) EPA may authorize PRPS to conduct RI/FS
activities at any site, provided the PRPs can do so promptly and
properly and can meet the conditions specified by EPA for conducting the
RI/FS. These conditions are discussed in Attachment I of this appendix
ar.d involve the scope of activities, the organization of the PRPs, and
the PRPs' (and their contractors') demonstrated expertise. EPA encour-
ages PRPs to conduct the RI/FS provided that the PRPs commit in an Order
(or Consent Decree) under CERCLA Sections 104/122 (or Sections 106/122
for a Decree) to conduct a complete RI/FS to the satisfaction of EPA,
under EPA oversight. Oversight of RI/FS activities by the lead agency
is required by Section 104(a)(1) and is intended to assure that the
RI/FS is adequate for lead agency identification of an appropriate
remedy, and that it will otherwise meet the Agency requirements of
CERCLA, the NCP, and relevant Agency guidance. EPA will allow PRPS to
conduct RI/FS activities and will provide review and oversight under the
following ger.eral circumstances.
EPA's priority is to address those NP1 sites that have been identi-
fied on the SCAP. The SCAP is an EPA management plan which identifies
site- and activity-specific Superfund financial allocations for each
quarter of the current fiscal year. When employing Section 122(e) notice
procedures, E?A will notify PRPs of its intention to conduct RI/FS activ-
ities at NFL sites in a manner that allows at least 90 days notice before
obligating the funds necessary to complete the RI/FS (see Section "I cf
this guidance) . During this time frame PRPs may elect to conduct the
RI/FS, under the review and oversight of EPA. If the PRPs agree to con-
duct the RI/FS they must meet the conditions discussed in Attachment I.
The scope and terms for conducting the studies are .embodied in an Agree-
ment; as mentioned in Section II, Administrative Orders are the preferred
type of Agreement for F.I/FS activities:
E?7. will not encage in lengthy discussions with PRPs over whether
the PRPs will conduct the RI/FS? rather, EPA will adhere to the time
frames established by the Section 122 special notice provisions. In
most instances, once Fund resources have been obligated to conduct the
RI/FS,'the PRPs will no longer be eligible to conduct the RI/FS activi-
ties at the sit*.
Th« action* described below are typically taken to initiate RI/FS
activities:
o EPA develops a-site-»p*cific Statement of Work (SOW) in advance
of the scheduled RI/FS start. This SOW is then provided to
the PRPs along with a draft of the Administrative Order (or
For a State-lead enforcement site the State is responsible for over-
sight unless otherwise specified in the agreement between the State and
EPA. EPA should maintain communication with the State to ensure that
the State is providing oversight of the remedial activities.
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Consent Decree) «t the initiation of negotiations. (PRP$
with EPA approval, submit a single site plan that incorporates
the elements of an SOW and a detailed Work Plan as a first
deliverable once the Agreement has been signed. This combined
site plan Bust clearly set forth the scope of the proposed
RI/FS and would be incorporated into the Agreement in place of
the sow.)
o Final provisions of th* SOW are negotiated with the Order.
o EPA determines whether the PKPs possess the necessary capabili-
ties to conduct an Rl/FS in a timely and effective manner (con-
ducted simultaneously with other negotiations).
o EPA develops a Community Relations Plan specifying any activi-
ties that may be required of th* PRPs. (Community relations
activities are discussed in Attachment II.)
o EPA determines contractor and staff resources required fcr
oversight and initiates planning the necessary oversight.
requirements. This process may include preparing a Statement
of Work, if a contractor is to develop an "oversight plan."
o EPA and PRPs identify and procure any necessary assistance.
o FRPs submit a Work Plan to EPA for Agency review and approval.'
The Work Flan must present the methodology and rationale for
conducting the RI/FS as well as detailed procedures and require-
ments, if such procedures have not been set forth in the Agree-
ment. This Wcrk Plan, which in most instances is one of the
first deliverables under the Order, is commonly incorporated
into the Agreement "following EPA approval.
o PRfs are responsible fox obtaining access to the site; however,
if access cannot be obtained, EPA, with the assistance of DOJ,
will secure access subject to PRP reimbursement for the costs
incurred in securing such access.
These standardized actions ensure that the scope of the Rl/FS activ-
ities to be conducted by the PRPs, and the procedures by which the RI/FS
is performed, are consistent with EPA policy and guidance. Additional
actions s*y be required either for a technically complex site or for a
sit* Mtwre a number of PRPs are involved. Regardless of the circum-
stances, the actions listed in this section should be negotiated as
expeditiously as possible. Specific elements of these actions are dis-
cussed in Attachment IX.
V. DEVELOPMENT OF THE RI/FS ADMINISTRATIVE ORDER OR CONSENT DECREE
The PRPs must respond to EPA's notice letter by either declining,
within the time specified, to participate in the Rl/FS, or by offering a
good faith proposal to EPA for performing the RI/FS. Declining to par-
ticipate in the RI/FS may be implied if the PRPs do not negotiate during
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the moratorium established by the notice letter. If the PRPs have
declined to participate, or the time specified has lapsed, EPA win
obligate funds for performing the RI/FS. If a good faith proposal is
submitted, EPA will negotiate with the PRPs on the scope and terms for
conducting the RI/FS.
The results of successful negotiations will, in most cases, be con-
tained in an Administrative Order, or where th* site is in litigation,
in a Judicial Consent Decree entered into pursuant to Section 122(d) cf
CERCLA. Guidance for the development of an Administrative Order is pro-
vided in OWPE's document "Administrative Order: Workshop and Guidance
Materials' (September 1984), and in the memorandum from Gene Lucero
entitled "Model CERCLA Section 106 Consent Order for an RI/FS" (Janu-
ary 31, 1985). (The latter guidance is currently being revised since
the provisions in SARA allow for Orders to be signed using the authori-
ties of Sections 104/122.)
An Administrative Order (or Consent Decree) will generally contain
the scope of activities to be performed (either as a Statement of Work
or Work. Plan), the oversight roles and responsibilities, and enforcement
options that may be exercised in the event of noncompliance (such as
stipulated penalties). In addition to the above, th* Agreement will
typically include the following elements, as agreed upon by EPA, the
PRPs, ar.d other signatories to th* Agreement.
o Jurisdiction - Describes EFA's authority to enter into Admin-
istrative Orders or Consent Decrees.
o Parties bound - Describes to whom the Agreement applies and is
binding upon.
o Purpose - Describes the purpose of the Agreement in terms of
mutual objectives ax.d public benefit.
o Findings of fact, determination, and conclusions of law - Pro-
vides an outline of facts upon which the Agreement is based,
including the fact that PRPs are not subject to a lesser stan-
dard of liability and will not receive preferential treatment
from the Agency in conducting the RI/FS.
o Hotie* to the State - Verifies that the State has been notified
of pending site activities.
e Hork to be performed - Provides that PRPs submit project plans
to the lead-agency for review and approval before cotnencinq
RI/FS activities. Project plans are those plans developed in
order to effectively conduct the RI/FS project and include: a
Work Plan, describing the methodology, rationale, and schedule
of all tasks to be performed during the RI/FS; a Sampling and
Analysis Plan, describing the field sampling procedures to be
performed as well as the quality assurance procedures which
will be followed for sampling and analysis (including a
description of how the data gathered during the RI/FS will, be
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managed) and the analytical procedures to be employed; and a
Health and Safety Plan describing health and safety precautions
to be exercised while onsite. (More information on the
contents of these project plans can be found in Attachment II
of this appendix.)
Compliance with CERCLA, the NCP, and Relevant Agency Guidance -
Specifies that the actions at a site will comply with the
requirements of CERCLA, the NCP, and relevant Agency guidance
determined to be appropriate for site remediation.
Reimbursement of costs - Specifies that PRPs will assume all
costs of performing the work required by the Agreement. In
addition, this section commits PRPs to reimbursement of costs
associated with oversight activities. This includes reimburse-
ment for qualified party assistance in oversight, as required
by Section 104(a) (1). This section should also specify the
nature and kind of cost documentation to be provided and the
process for billing and receiving payment.
Reporting - Specifies the type and frequency of reporting that
PRPs must provide to EPA. Normally the reporting requirenen^s
will, at a minimum, include the required project plans as well
as those deliverable* required by the RI/FS Guidance.
Additional reporting requirements are left to the discretion
of the Regions. That is, Regions may require additional
deliverables such as interim reports on particular RI or FS
activities.
Designated EPA, State, and PRP project coordinators - Specifies
that EPA, the State, and PRPs shall each designate a project
coordinator.
Site access and data availability - Stipulates that PRPs shall
allow access to the site by EPA, the State, and oversight per-
sonnel. Access will be provided for inspection and monitoring
purposes that in any way pertain to the work undertaken
pursuant to the Order. In addition, access will be provided
in the event of project takeover. This section also stipu-
lates that EPA will be provided with all currently available
data.
Record preservation - Specifies that all records must be main-
tained by both parties for a minimum of 6 years after termina-
tion of th« Agreement, followed by a provision requiring PRPs
to offer the site records to EPA before destruction.
Administrative record requirements - Provides that all infor-
mation upon which the. selection of remedy is based must be
submitted to EPA in fulfillment of the administrative record
requirements pursuant to Section 113 of CERCLA. (Additional
information on administrative record requirements is contained
in Attachment III.)
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Dispute resolution - Specifies step* to be taken if a dispute
occurs. The Administrative Order states that with respect to
all submittals and work perforated, EPA will be the final arbi-
ter, while the court is the final Arbiter for a Consent Decree.
(More information on dispute resolution can be found in Attach-
ment IV of this appendix.)
Delay in performance/stipulated penalties - Specifies EPA's
authority to invoke stipulated penalties for noncompliance
with Order or Decree provisions. Section 121 of CERCLA
requires that Consent Decrees contain provisions for penalties
in an amount not to exceed $25,000 per day. In addition to
stipulated penalties, Section 122(1) provides that Section 109
civil penalties apply for violations of Administrative Orders
and Consent Decrees. Delays that endanger public health and/or
the environment may result in termination of the Agreement ar.d
EPA takeover of the RI/FS. (More information on stipulated
penalties can be found in the Office of Enforcement and Com-
pliance Monitoring1s (OECM) "Guidance on the Use of Stipulated
Penalties in Hazardous Waste Consent Decrees" (September 21,
1987) and in Attachment IV of this appendix.)
Financial assurance - Specifies that PRPs should have adequate
financial resources or insurance coverage to address liabili-
ties resulting from their RI/FS activities. When using con-
tractors, PRPs should certify that the contractors have
adequate insurance coverage or that contractor liabilities are
indemnified-.
Reservation of rights - States that PRPs are not released from
all CERCLA liability through compliance with the Agreement, or
completion of the RI/FS. PRPs nay be released from liability-
relating directly to RI/FS-requirements, if PRPs complete the
RI/FS activities to the satisfaction of EPA.
Other claims - Provides that nothing in the Agreement shall
constitute a release from any claim or liability other than,
perhaps, for the cost of the RI/FS, if completed to EPA satis-
faction. .Also provides that nothing in the Agreement shall
constitute preauthorization of a claim against the Fund under
CXRCLA. This section should also specify the conditions for
indemnification of the U.S. Government.
Subsequent modifications/additional work - Specifies that the
PRPs are cossaitted to perform any additional work or subse-
quent modifications which are not explicitly stated in the
Work Plan, if EPA determines that such work is needed to
enable the selection of an appropriate response action.
(Attachment ZV contains additional information on this
clause.)
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VI. STATEMENT OF WORK AND WORK PLAN
Based upon available models and guidance, the Region should present
to the PRPs at the initiation of negotiations a Statement of Work (SOW)
and draft Administrative Order. The SOW describes the broad objectives
and general activities to be undertaken in the RI/FS. (The PRPs may
develop the SOW if it is determined to be appropriate for a particular
case.) Once the PRPs receive the SOW they develop a more detailed Work
Plan, which should be incorporated by reference into the Order following
EPA approval. The Work Plan expands the tasks described in the SOW and
presents the rational and methodology (including detailed procedures and
schedules) for conducting the RI/FS. It should be noted that EPA, rather
than the PRPs, may develop the work plan in the event of unusual circum-
stances.
VII. REVIEW AND OVERSIGHT OF THE RI/FS
To er.sure that the RI/FS conforms to the NCP ar.d the requirements
of CERC-A, including Sections 104(a)(l) and 121, EPA will review and
oversee ?RF activities. Oversight is also required tc ensure that the
RI/FS will result in sufficient information to allow for remedy selec-
tion by the lead agency.
The oversight activities that EPA, the State, and other oversight
personnel will be performing should be determined prior to the initia-
tion of the RI/FS. Different mechanisms will be used for the review and
oversight of different PRP products and activities. These mechanisms,
and corresponding PRP activities, should be determined and if possible
incorporated in the Order. Generally, the following oversight activi-
ties should be specified:
o Review of plans, reports, and records;
o Oversight of field activities (including maintenance of records
and documentation)»
c Meetings; and
o Special studies.
Section 104(a)(1) requires that the President contract with or
arrange for a "qualified person" to assist in the oversight and review
of the conduct of the RI/FS. EPA believes that qualified persons, for
the purposes of overseeing RI/TS activities, are those firms or individ-
uals with the professional qualifications, expertise, and experience
necessary to provide assurance that the Agency is conducting meaningful
and effective oversight of PRP activities. In this context, the quali-
fied person generally will be either an ARCs, TES, or REM contractor.
EPA employees, employees of other Federal agencies, State employees, or
any other qualified person EPA determines to be appropriate however, may
be asked tc perform the necessary oversight functions.
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As part of the Section 104 requirements, PRPs are required to reim-
burse EPA for qualified party oversight costi. it is Agency policy
to recover all response costs at a site including all costs associated
with oversight. Additional guidance on oversight and project control
activities is presented in Attachments III and IV, respectively.
VIII. CONTROL OF ACTIVITIES
EPA will usually not intervene in a PRP RI/FS if activities are
ccr.ducted in conformance with the conditions and terms specified by the
Order. When deficiencies are detected, EPA will take immediate steps to
correct the PRP activities. Deficiencies will be corrected through the
use of the following activities: (1) identification of the deficiency;
(2) demand for corrective measures; (3) use of dispute resolution mecha-
nisms, where appropriate; (4) imposition of penalties; and if necessary,
(5) FRP RI/FS termination and project takeover or judicial enforcement.
These activities are described in detail in Attachment IV of this appen-
dix.
IX. PRP PARTICIPATION IN AGENCY-FINANCED RI/FS ACTIVITIES
PRPs that elect not to perform the RI/FS should be allowed an oppor-
tunity for involvement in a Fund-financed RI/FS. Private parties may
possess technical expertise or knowledge about a site which would be
useful in developing a sound RI/FS. Involvement by PRPs in the develop-
ment of a Fund-financed RI/FS may also expedite remediation by identify-
ing ar.d satisfactorily resolving differences between the Agency and
private parties.
Secticr. 113 (k) (2MB) requires that interested persons, including
PRPs, be provided an opportunity for participation in the development cf
the administrative record. PRP participation may include the submittal
cf ir.fornvation, relevant to the selection of remedy, for inclusion ir
the record and/or the review of record contents and submittal of com-
ments on such contents.
The extent of additional PRP involvement will be left to the discre-
tion of the Region and may include activities such as:
o Access to tht site to observe sampling and analysis activities;
o Access to validated data and draft reports.
With r«spect to PRP access to a sit«, it is within the Regions'
discretion to impose conditions based on safety and other relevant
considerations. To th« extent that tht Rsgion determines that access is
appropriate under the circumstances, PRPs must reimburse EPA for all
identifiable costs incurred with th« connection of the accesses afforded
the PRPs, and must «x«cute appropriate releases in favor of the EPA and
its contractors. With respect to providing data, it should be noted
that the Region is required to allow private citizens access to the same
A-ll
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information that is provided to the PRPs. The Regions must therefore
take this into consideration when determining the extent of the PRP'S
involvement in a Fund-financed RI/FS.
Aside from participation in the administrative record, which is a
statutory requirement, the final decision whether to permit PRPS to par-
ticipate in other aspects of the Fund-financed RI/FS (as well as the
scope of any participation) rests with the Regions. This decision should
be based on the ability of PRPs to organize themselves so that they can
participate as a single entity, and the ability of PRPs to participate
without undue interference with or delay in completion of the RI/FS, and
other factors that the Regions determine are relevant. The Region may
terminate PRP participation in RI/FS development if unnecessary expenses
or delavs occur.
X. CONTACT
For further information on the subject matter discussed in this
interim guidance, please ccr.tact Susan Cange (FTS 4"5-9805) of the
Guidance and Oversight Branch, Office of Waste Program Enforcement.
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ATTACHMENT I
CONDITIONS FOR PRP CONDUCT OF THE RI/FS
Organization and Management
when several potentially responsible parties are involved at a site
they must be able to organize themselves quickly into a single represen-
tative body to negotiate with EPA. To facilitate this negotiation pro-
cess, EPA will nake available the names and addresses of other PRPs, in
accordance with the settlement provisions of CERCLA Section 122(e).
Either a single PRP or an organized group of PRPs may assume responsi-
bility for development of the RI/FS.
Scope of Activities
As part cf the negotiation process PRPs must agree to fellow the
site-specific Statenent of Work (SOW) as the basis for conducting an
RI/FS. PRPs are required to submit an RI/FS Work Plan setting forth
detailed procedures and tasks necessary to accomplish the RI/FS activ-
ities described in the SOW. EPA may approve reasonable modifications to
the SOW and will reject any requests for modifications that are not
consistent with CERCLA (as amended by SARA), the NCP, the requirements
set forth in this ouidance document, the RI/FS Guidance, or other
relevant CERCLA guidance documents.
Demonstrated Capabilities
PRPs must demonstrate to EPA that they possess, or are able to
obtain, the technical expertise necessary to perform all relevant activi-
ties identified in the SOW, and. any amendments that'may be reasonably
anticipated tc that document. In addition, PRPs must demonstrate that
they possess the managerial expertise and have developed a management
piar. sufficient to ensure that the proposed 'activities will be properly
controlled and efficiently implemented. PRPs must also demonstrate that
they possess the financial capability to conduct and complete the RI/FS
in a timely and effective manner. These capabilities are discussed
briefly below.
o Demonstrated Technical Capability
PRPs should be required to demonstrate the technical capabilities
of key personnel involved in executing the project. Personnel qualifi-
cations Bay be demonstrated by submitting resumes and references. PRPs
may demonstrate the capabilities of the firm that will perform the work
by outlining their past areas of bu»in«si, relevant projects and experi-
ence, and overall familiarity with the types of activities to be per-
formed as part of the remedial investigation and feasibility study.
It is important that qualified firms be retained for performing
RI/FS activities. Firms that do not have the necessary expertise for
performing RI/FS studies may create unnecessary delays in the project
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and may create situations which further endanger public health or the
environment. These situations may be created when PRP contractors sub-
mit insufficient project plans, submit deficient reports, or perform
inadequate field work. Furthermore, excessive Agency oversight may be
retired in the event that ar. unqualified contractor performs the RI/FS;
the Agency may have to significantly increase its workload by providing
repeated reviews of project plans, reports, and oversight of field
activities.
The PRPs must also demonstrate the technical capabilities of the
laboratory chosen to do the analysis of samples collected during the
RI/FS. If a non-CLP laboratory is selected, EPA may require a submission
from the laboratory which provides a comprehensive statement of the labo-
ratories' personnel qualifications, equipment specifications, security
measures, and any other material necessary to prove the laboratory is
qualified to conduct the work.
o Demonstrated Management Capability
P??s must demonstrate that they hav« the administrative capabili-
ties necessary for conducting the RI/FS in a responsible and timely
manner. A management plan should be submitted to EPA either during nego-
tiations or as a part of the Work Plan which includes a discussion of
roles and responsibilities of key personnel. This management plan
should include an RI/FS team organization chart describing responsibil-
ities and lines of authority. Positions and responsibilities should be
clearly related to technical and managerial qualifications. The PRPs
should also demonstrate an understanding of effective communications,
information management, quality assurance, and quality control systems.
PRPs usually procure the services of consultants to conduct the required
RI/FS activities. The consultants must demonstrate, in addition to
those requirements stated above, effective contract management
capabilities.
c Demonstrated Financial Capability
The PRPs should develop a comprehensive and reasonable' estimate of
the total cost of anticipated RI/FS activities. EFA will .decide on a
case-by-case basis if the PRPs will be required to demonstrate that they
have the necessary financial resources available and committed to con-
duct the RI/FS activities. The resources estimated should be adequate
to cover the anticipated costs for the RI/FS as well as the costs for
oversight, plus a nargin for unexpected expanses. If, during the con-
duct of tha RI/FS the net worth of the financial mechanism providing
funding for tha RI/FS is reduced to less than that required to complete
the raaaining activities, the PRPs should immediately notify EPA. Under
conditions specifiad in tha Order, PRP» are required to complete the
RI/FS regardless of initial cost estimates or financial mechanisms.
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o Assistance for PRP Activities
If PRPs propose to use consultants for conducting or assisting in
the RI/TS, the PRPs should specify the tasks to be conducted by the con-
sultants and submit personnel and corporate qualifications of the pro-
posed firms to the EPA for review. Verification should be made that the
PRPs' consultants have no conflict of interest with respect to the pro}-
ect. Any consultants having current EPA assignments as prime contrac-
tors or as subcontractors must obtain approval from their EPA Contract
Officers before performing work for PRPs. Lack of clarification on pos-
sible conflicts of interest may delay the PRP RI/FS. EPA will reserve
the right to review the PRPs' proposed selection of consultants and will
disapprove their selection if, in EPA's opinion, they either do not pos-
sess adequate technical capabilities or there exists a conflict of
interest. It should be noted that the responsibility for selection cf
consultants rests with the PRPs.
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ATTACHMENT II
INITIATION OF PRP RI/FS ACTIVITIES
Development of the Statement of Work
After the PRPs have been identified in the PRP Search Report they
are sent either a general notice letter followed by a special notice
letter or a general notice letter followed by an explanation pursuant to
Section 122(a) why special notice procedures are not being used. EPA
will engage in negotiations with those PRPs who have submitted a good
faith offer in response to the notice letter and therefore have volun-
teered to perform the RI/FS. While the PRPs are demonstrating their
capabilities for conducting the RI/FS, EPA will negotiate the terms of
the Administrative Order. Either an acceptable Statement of Work or
Work Plan must be incorporated by reference into the Agreement.
The Statement of Work (SOW) is typically developed by EPA and
describes, in & comprehensive manner, all RI/FS activities to be per-
ferred, as reasonably anticipated, prior to the onset of the project.
The SOW focuses on broad objectives and describes general activities
that will be undertaken to achieve these objectives. Detailed proce-
dures by which the work will be accomplished are not presented in the
SOW, but are described in the subsequent Work Plan that is developed by
the PR?s. In certain instances, with the approval of EPA, PRPs may pre-
pare a single site plan incorporating the elements of an SOW and a Work
Plan. In such instances, the site plan will be incorporated into the
Order in place of the broader SOW,
o Use of the EPA Model SOW
EPA has developed a model SOW defining a comprehensive RI/FS effort
which is contained in the RI/FS Guidance. Additionally, a model SOW for
a ??.r-le&d RI/FS is being developed by OWPE and will be forthcor.inc.
The Regions should develop a site-specific SOW based upon the modeKsK
RI/FS projects managed by PRPs will involve, at a minimum, all relevant
activities set forth in the EPA model SOW. Further, all plans and
reports identified as deliverable in the EPA model SOW must be iden-
tified as deliverable* in the site-specific SOW and/or the Work Plan
developed by the PRPs. Additional deliverable! may be required by the
Regions and should be added to the Administrative Order.
o Modification of the EPA Draft SOW Requirements
The activities set forth in the model SOW are considered by EPA to
be the critical RI/TS activities that are required by the NCP. PRPs
should present detailed justifications for any proposed swdifications
and amendments to the activities set. forth in the SOW. EPA will review
all proposed modifications and approve or disapprove their inclusion in
the SOW based on available information, EPA policy and guidance, overall
program objectives, and the requirements of the NC? and CSRCLA. EPA
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will not allow modifications that, in th« judgment of the Agency, win
lead to an unsatisfactory RI/TS or inconsistencies with the NCP.'
Review of the RI/FS Project Plans
RI/FS project plans include those plans developed for the RI/FS.
At a minimum the project plans should include a Work Plan, a Sampling
and Analysis Plan, a Health and Safety Plan, and a Community Relations
Plan. The Community Relations Plan is developed by EPA and should
include a description of the PRPs1 rol* in conmunity relations activi-
ties, if any. EPA review and approval of the work plan and sampling and
analysis plan will usually be required before PRPs can begin site activi-
ties. An example when limited project activities may be initiated prior
to approval of the project plans would be if additional information is
required tc complete the Sampling and Analysis Plan. Additionally, con-
ditional approvals to the Work Plan and Sampling and Analysis Plan oay
be provided in order to initiate field activities in a more timely
manner. It should be noted that EPA does not "approve" the PRPs' Health
and Safety Plan but rather, it is reviewed to ensure the protection of
public health ar.d the environment. The PRPs may be required to amend
the plan if EFA determines that it does not adequately provide for such
protection.
o Contents of the Work Plan
The Work Pl&j* expands the tasks of the SOW, and the responsibili-
ties specified in the Agreement, by presenting the rationale and method-
ology (including detailed procedures) for conducting the RI/FS.
Typically the Work Plan is developed after the draft Order and then
incorporated into the Agreement. In some cases however, it may be appro-
priate for EFA to develop the Work Plan prior to actual negotiation with
the FKPs ar.d attach the plan to the draft Agreement. The PRF RI/FS work
Plan must be consistent with current.EPA guidance. Guidance on develop-
ing acceptable Work Plans is available in-the RI/FS Guidance. Addi-
tional guidance will be forthcoming in the proposed NCP. Once the Work
Plan it approved by EPA, it becomes a public document and by the terms
of the Agreement, should be incorporated by reference into that document.
The wpxk Plan should, at a minimum, contain the following elements.
Introduction/Background Statement - PRPs should provide an intro-
ductory or background statement describing their understanding cf
th« work to be performed at the site. This should include histor-
ical site information and should highlight present site conditions.
Objectives - A statement of what is to be accomplished and how the
information will be utilized.
Scope - A detailed description of the work .to be performed
including a definition of work limits.
Management Plan - A description of the project management showing
personnel with authority and responsibility for the appropriate
aspects of the project and specific tasks to be performed.. A
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single person should be identified AS having overall responsibility
for the project and specific tasks to be performed.
Mork Schedule - A statement outlining the schedule for each of the
required activities. This could be presented in the fora of a
Gantt or milestone chart. The schedule in the work plan must match
that in the draft order.
Deliverables - A description of the work products that will be
submitted and their schedule for delivery. The schedule should
include specific dates, if possible. Overvise, the schedule
should be in terns of the number of days/week after approval
of the work plan.
o Contents of the Sampling and Analysis Plan.
A Sampling and Analysis Plan (SAP) must bt submitted by the PKFs
before initiation of relevant field activities. This plan contains two
separate elements: a Field Sampling Plan and a Quality Assurance Project
Plan. These documents were previously submitted as separate deliverable;,
but are now combined into one document. Though the SAP is typically
implemented by PRP contractors, it is the responsibility of the PRPs to
ensure that the goals and standards of the plan are met. (Verification
that the goal and standards of the SAP are met will also be part of EFA's
oversight responsibilities.) The SAP should contain the following ele-
ments :
Field Sampling Plan - The Field Saapling Plan includes a detailed
description of all. Rl/FS sampling and analytical activities that
will be performed. These activities should be consistent with the
NCF and relevant CERCLA guidance. Further guidance on developing
Field Sampling Plans is presented in the F.I/FS Guidance.
Quality Assurance Project Plan - The SAP- must include a detailed
description of quality assurance/quality control (QA/QC) procedures
to be employed during the RI/FS. This section is intended to ensure
that the Rl/FS is based on the correct level or extent of sampling
and.analysis required to produce sufficient data for evaluating
remedial alternatives for a specific site. A second objective is
to ensure the quality of the data collected during the Rl/FS.
Guidance on appropriate QA/QC procedures aay be found in the RI/FS
Guidance as well as "Data Quality Objectives for the RI/FS Process"
(March 1987 - OSWER Directive No. 9355.0-7B).
Zf the SAP modifies any procedures established in relevant guidance,
it oust provide an explanation and justification for the change.
o Other Project Plans
Other project plans that are likely to be required in the RI/FS
process include the Health and Safety Plan and the Cotsnunity Relations
Plan.
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Health and Safety Plan - PRPs should include a Health and Safety
Plan either as part of the work Plan or as a separate document.
The Health and Safety Plan should address the measures taken by the
PRPs to ensure that all activities will be conducted in an environ-
mentally safe manner for the workers and the surrounding community.
EPA reviews the Health and Safety Plan to ensure protection of
public health and the environment. EPA does not, however, "approve"
this plan. Guidance on the appropriate contents of a Health and
Safety Plan may be found in the RI/FS Guidance, in addition,
Health and Safety requirements are found in "OSHA Safety and Health
Standards: Hazardous Waste Operations and Emergency Response"
(40 CFR Part 1910.120) .
Community Relations Plan - EPA must prepare a Community Relations
Plan for each NPL site. The extent of PRP involvement in community
relations activities should be detailed in this plan. Additional
information on Community Relations activities is contained below.
o Review and Approval
FRFs must submit all of the required RI/FS project plans (with the
exception of the Community Relations Plan which is developed by EPA) to
EPA for review, and in the case of the Work Plan and SAP, approval. EPA
will review the plans for their technical validity and consistency with
the NCP and relevant EPA guidance. Typically, the Agency must review
and approve these plans before FRPs can begin any site activities. Any
disagreements that arise between EPA and PRPs over the contents of the
plans should be resolved according to the procedures set forth in the
dispute resolution section of the relevant EPA/PRP Agreement.
Community Relations
EPA is responsible for developing and implementing an effective
community relations program, regardlesfc of whether RI/FS activities are
Fund-financed or conducted by PRPs. At State-lead enforcement sites,
funded by EPA under Superfund Memoranda of Agreement (see the "Draft
Guidance on Preparation of a Superfund Memorandum of Agreement (Octo-
ber 5, 19S" - CSWER Directive No. 9375.0-01)), the State has the respon-
sibility for development and implementation of a community relations
program. PRPs may, under certain circumstances, assist EPA or the State
in implementing the coaonunity relations activities. For example, PRFs
may with to participate in connunity meeting* and in preparing fact
sheets. PRP participation in community relations activities would, how-
ever, b« at the discretion of the vRegional Office, or the State, and
would require oversight by the lead-agency. EPA will not under any cir-
cumstances negotiate press releases with PRPs.
EPA designs and implements coraunity relations activities according
to CERCLA and the NCP. A Cotmunity Relations Plan must be developed by
EPA for all NPL «ites as described by th« EPA guidance, "Cowunity Rela-
tions in Superfund: A Handbook" (U.S. EPA, 1986 - OSWER Directive
No. 9230.0-03). The Community Relations Plan must be independent of
negotiations with PRPs. Guidance for conducting community relations
activities at Superfund enforcement sites is
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specifically addressed by Chapter VI of tht Handbook and the EPA nemo
entitled "CoaBminity Relations Activities at Superfund Enforcement
Sites—Interim Guidance" (November 1988 - OSWER Directive
No. 9230.0-3B). In tone instances the decision regarding PRP participa-
tion in community relations activities will be made after the Community
Relations Plan has been developed. As a result, the plan will need to
be modified by EPA to reflect Agency and PRP roles and responsibiliti«s.
EPA, or the State, will provide the Community Relations Plan to all
interested parties at the same tine. In general, if the case has not
been referred to the Department ot Justice (DOJ) for litigation, com-
munity relations activities during the RI/FS should be the same for
fund- and PRP-i*ad sites. If the case has been (or may potentially be)
referred to DOJ for litigation, constraints will probably be placed or.
the scope of activities. The EPA Coonunity Relations Plan may be modi-
fied after consultation with the technical enforcement staff, the
Regional Counsel and other negotiation team members, including, if the
case is referred, the lead DOJ or Assistant United States Attorneys
(i.e., the litigation team). This technical and legal staff must be
consulted prior tc any public meetings or dissemination of fact sheets
or other information; approval must be obtained pricx to releases of
information and discussions of technical information in advance. PRP
participation in implementing community relations activities will be
subject to EPA (cr State) approval in administrative settlements and
EPA/DOC in civil actions. Key activities specific to ccnanur.ity relations
programs for enforcement kites include the following:
o Public Review of Work Plans for Administrative Orders
The PRP Work Plan, as approved by EPA, is incorporated into the
Administrative Order (or Consent Decree). Once the Agreement is signed,
it becomes a public document. Although there is no requirement for
public ccnirent on an Administrative Order, Regional staff are encouraged
to announce, after the Order is final, that the PRP is conducting the
RI/FS. Publication of notice and a corresponding 30-day comment period
is required however, for Consent Decrees.
o Availability of RI/FS Information from the PRPs
PRPs, in agreeing to-conduct the RI/FS, must also agree to provide
all information necessary for EPA to implement a Community Relations
Plan. The Agreement should identify the types of information that PRPs
will provide, and contain conditions concerning the provision of this
information. EPA should provide the PRPs with the content of the plan
so that the PRPs can fully anticipate the type of information that will
be made public. All information submitted by PRPs will be subject to
public inspection (i.e., available through Freedom of Information Act
requests, public dockets, or the administrative record) unless the
information meets an exemption: An example would be if the information
is deemed either as enforcement sensitive by EPA, oz business confi-
dential by EPA (based on the PRPs1 representations), in confonnance with
40 CFR Part 2.
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Development of the ATSDR Health Assessment
Section 104(j)(6) of CERCLA requires the Agency for Toxic Substances
and Disease Registry (ATSDR) to perform health assessments at all NPL
facilities according to a specified schedule. The purpose of the health
assessment is to assist in determining whether any current or potential
threat to human health exists and to determine whether additional infor-
mation on human exposure and associated health risks is needed.
The EPA remedial project manager (RPM) should coordinate with the
appropriate ATSDR Regional representative for initiation of the health
assessment. In general, the health assessment should be initiated at
the start of the RI/FS. The ATSDR Regional representative will provide
information on data needs specific to performing a health assessment to
ensure that all necessary data will be collected during the RI.
The RPM and the ATSDR Regional representative should also coordinate
the transmission and review of pertinent documents dealing with the extent
and nature cf site contamination (i.e., applicable technical memoranda
and the draft RI) . As ATSDR has no provisions for withholding documents,
if requested by the public, the RPM must discuss enforcement sensitive
documents and drafts with the ATSDR Regional representative rather than
providing copies to them. This will ensure EPA's enforcement confiden-
tiality. Further guidance on coordination of RI/FS activities with ATSDR
can be found in the document entitled "Guidance for Coordinating ATSDR
Health Assessment Activities with the Superfund Remedial Process"
(March 193"7 - OSWZR Directive No. 9285.4-02).
Icentificatisr. of Oversight Activities
EPA will review RI/FS plans and reports as well as provide field
oversight of PR? activities during the RI/FS. To ensure that adequate
resources are committed and that appropriate activities are performed,
EPA should develop an oversight plan that defines the oversight activi-
ties that must be performed including EPA responsibilities, RI/FS prod-
ucts to be reviewed, and site activities that EPA will oversee. In
planning for oversight, EPA should consider such factors as who will be
performing oversight and the schedule of activities that will be moni-
tored. . A tracking system for recording PRP -milestones should be devel-
oped. This system should also track activities performed by oversight
personnel and other appropriate cost items such as travel expenses.
Identification and Procurement of EPA Assistance
In accordance with Section 104(a)(1) EPA must arrange for a quali-
fied party to assist in oversight of the RI/FS. The following section
provides guidance for identifying and procuring such assistance for EPA
activities.
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o Assistance for EPA Activities
As specified in Section 104(a)(l), EPA is required to contract with
or arranqe for a qualified person to assist in oversight of the RI/FS.
Qualified individuals are those groups with the professional qualifica-
tions, expertise, and experience necessary to provide assurance that the
Agency is conducting appropriate oversight of PRP RI/FS activities.
Normally, EPA will obtain oversight assistance either through the
Technical Enforcement Support (TES) contract, the Alternative Remedial
Contracts Strategy Contract (ARCS), or occasionally through the Remedial
Action (R£M) contracts. In some cases oversight assistance may be
provided by States through the use of Cooperative Agreements. Oversight
assistance may also be obtained through the U.S. Army Corps of Engineers
or other governmental agencies; interagency Agreements should b* utilized
to obtain such assistance.
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ATTACHMENT III
REVIEW AND OVERSIGHT OF THE RI/FS
Review of Plans, Reports, and Records
EPA will review all RI/FS products which are submitted to the Agency
as specified in the Work Plan or Administrative Order. PRPS should
ensure that all plans, reports, and records are comprehensive, accurate,
and consistent in content and format with the NCP and relevant EPA guid-
ance. After this review process, EPA will either approve or disapprove
the product. If the product is found to be unsatisfactory, EPA will
notify the PRPs of the discrepancies or deficiencies and will require
corrections within a specified time period.
o Project Plans
EPA will review all project plans that are submitted as celiver-
ables in fulfillment of the Agreement. These plans include the Work
Plan, the Sampling and Analysis Flan (including both the Field Sampling
Plan and the Quality Assurance Project Plan), and the Health and Safety
Plan. If the initial submittals are not sufficient in content or scope,
the RPM will request that the PRPs submit revised document(s) for review.
EPA does not "approve" the PRP's Health and Safety Plan but rather, it
is reviewed to ensure the protection of public health and the environment.
The PRP's Work Plan and Sampling and Analysis Plan, on the other hand,
must be reviewed and approved prior to the initiation of field activities.
Conditional approval to these plans may be provided in order to initiate
field activities in a more timely manner.
The P?.?s may be required to develop additional Work Plans or modify
the initial Work Plan contained in or created pursuant to the Agreement.
These changes may result from the.need"to: (1) re-evaluate the RI/FS
activities due either to changes in or unexpected site conditions;
(2) expand the initial Work Plan when additional detail is necessary; or
(3) modify or add products to the Work Plan based on new information
(e.g., a new population at risk). EPA will review and approve all Work
Plans and/or modifications to Work Plans once they are submitted for
review.
o Reports
P*P» will, at a minimum, submit monthly progress reports, technical
memorandums or reports, and the draft and final RI/FS reports as
required in the Agreement. To assist in the development of the RI/FS
and review of documents, additional deliverables may b« specified by the
Region and included in the Agreement. These reports and deliverables
will be reviewed by EPA to ensure that the activities specified in the
Order and approved Work Plan are being properly implemented. These
reports will generally be submitted according to the conditions and
schedule set forth in the Agreement. Elements of the PRP reports are
discussed below.
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Monthly Progress Reports - The review of monthly progress reports
is an important activity performed during oversight. These reports
should provide sufficient detail to allow E?A to evaluate the past
and projected progress of the RI/FS. PRPs should submit these writ-
ten progress reports to the RPM. The report should describe the
actions and decisions taken during the previous month and activities
scheduled during the upcoming reporting period. In addition, tech-
nical data generated during the month (i.e., analytical results)
should be appended to the report. Progress reports should also
include a detailed statement of the manner and extent to which the
procedures and dates set forth in the Agreener.t/Work Plan are being
met. Generally, EPA will determine the adequacy of the performance
of the RI/FS by reviewing the following subjects discussed in pro-
gress reports:
o Technical Summary of Work
The monthly report will describe the activities and accomplish-
ments performed to date. This will generally include a descrip-
tion of all field work completed, such as sampling events and
installation of wells; a discussion of analytical results
received; a discussion of data review activities; and a dis-
cussion of the development, screening, and detailed analysis
of alternatives. The report will also describe the activities
to be performed during the upcoming mor.th.
o Schedule
EPA will oversee PRP compliance with respect to those sched-
ules specified in the Order. Delays, with the exception cf
those specified under the Force Majeure clause of the Agree-
ment, may result in penalties, if warranted. The RPM should
be immediately notified if PRPs cannot perform required
activities or cannot provide'the required deliverables in
accordance with the schedule specified in the Work Flan. In
addition, PRPs should notify the RPM when circumstances may
delay the completion of any phase of the work or when cir-
cumstances may delay access to the site. PRPs should also
provide to the RPM, in writing, the reasons for, and the
anticipated duration of, such delays. Any measures taken or
to be taken by the PRPs to prevent or minimize the delay
should be described including the timetables for implementing
such measures.
o Budget
The relationship of budgets to expenditures should be tracked
where the RI/TS is funded with a financial mechanism estab-
lished by the PRPs. If site activities require more funds
than originally estimated, EPA must be assured that the PRPs
are financially able to undertake additional expenditures.
While EPA does not have the authority to review or approve a
PR? budget, evaluating costs during the course of the RI/FS
allows EPA to effectively monitor activity to ensure timely
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completion of RI/FS activities. If the PRPS run over budget,
EPA must be assured that they can continue the RI/FS activi-'
ties as scheduled. Therefore, if specified in the Agreement,
PRPs should submit budget expenditures and cost overrun infor-
mation to EPA. Budget reports need not present dollar amounts,
but should indicate the relationship between remaining avail-
able funds and the estimate of the costs of remaining activities.
o Problems
Any problems that the PRPS encounter which could affect the
satisfactory performance of the RI/FS should be brought to the
iiranediate attention of EPA. Such problems may or may not be a
force ma^eure event, or caused by a force majeure event. EPA
will review problems and advise the PRPs accordingly. Problems
which may arise include, but are not limited to:
Delays in mobilization or access to necessary equipment;
Unanticipated laboratory/analytical time requirements;
Unsatisfactory QA/QC performance;
Requirements for additional or more complex sampling;
Prolonged unsatisfactory weather conditions;
Unanticipated site conditions; and
Unexpected, complex community relations activities.
Other Reports - All other reports^ such as technical reports and
draft ar.d final RI/FS reports, should be submitted to EPA according-
to the schedule contained in the Order or the approved Work Plan.
EPA will review and approve these reports as they are submitted.
Suggested formats for the RI/FS reports are presented in the RI/FS
Guidance.
o Records
PRPs should preserve all records, documents, and information of any
kind relating to th« performance of work at the site for a minimum of
6 year« after completion of the work and termination of the Administra-
tive Ord«r. After the 6-year period, the PRPs should offer the records
to EPA before their destruction.
Document control should be a key element of all recordlceeping. The
following activities require careful recordXeeping and will be subject
to EPA oversight:
Administration - PRP administrative activities should be accurately
documented and recorded. Necessary precautions to prevent errors
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or'the loss or misinterpretation of data should be taken. At a
minimum, the following administrative actions should be documented
and recorded:
Contractor work plans, contracts, and change orders;
Personnel changes;
Cowminications between and among PRPs, the State, and E?A
officials regarding technical aspects of the RI/FS;
Permit application and award (if applicable); and
Cost overruns.
Technical Analysis - Samples and data should be handled according
to procedures vet forth in the Sampling ar.d Analysis Flan. Documen-
tation establishing adherence to these procedures should include:
Sample labels;
Shipping forms;
Chain-of-custody forms; and
Field log books.
All analytical data in the RI/FS process should be managed as set
forth in the Sampling and Analysis Plan. Such analytical data m^
be the product of:
Contractor laboratories;
Environmental and public health studies; and
Reliability, performance, and implementability studies of
remedial alternatives.
Decision Making - Actions or communications among PRPs that involve
decisions affecting technical aspects of the RI/FS should be docu-
mented. Such actions and communications include those ot the proj-
ect manager (or other PRP management entity), steering coonittees,
or contractors.
o Administrative Record Requirements
Section 113 (JO ot CERCLA requires that the Agency establish an admin-
istrative record upon which the selection of a response action is based.
A suggested list of documents which are most likely to be included in
any adequate administrative record is provided in the memorandum entitled
"Draft Interim Guidance on Administrative Records for Selection of CERCU*
Response Actions" (June 23, 1988 - OSWER Directive Mo. 9833.3A). More
detailed guidance will be forthcoming, including guidance-provided in
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the revisions to tht NCP. There are, however, certain details associ-
ated with compiling and maintaining an administrative record that are
unique to PRP RI/FS activities.
EPA is responsible for compiling and maintaining the administrative
record, and generating and updating an index, if EPA and the PRPs
mutually agree, the PRPs may be allowed to house and maintain the admin-
istrative record file at or near the site; they may not, however, be
responsible for the actual compilation of the record. Housing and main-
taining the administrative record would include setting up a publicly
accessible area at or near the site *nd ensuring that documents renain
and are updated as necessary. EPA must always be responsible for decid-
ing whether documents are included in the administrative record; trans-
mitting records to the PRPs; and maintaining the index to the repository.
The information which may comprise the administrative record must
be available tc the public from the time an RI/FS Work Plan is approved
by EPA. Once the Work Plan has been approved the PRPS must transmit tc
EPA, at reasonable, regular intervals, all of the information that is
generated during the RI/FS that is related to selection of the remedy.
The required documentation should be specified in the Administrative
Order. The Agreement should also specify those documents generated prior
to the RI/FS that must be obtained from the PRPs for inclusion in the
record file. This may include any previous studies conducted under State
or local authorities, management documents held by the PRPs such as haz-'
ardcus waste shipping manifests, and other information about site charac-
teristics or conditions not contained in any of the above documents.
Field Activities
o Field Inspections
"Field inspections are. an important oversight mechanism for determin-
ing the adequacy of the work performed: EPA will therefore conduct field
inspections as part of its oversight responsibilities. The oversight
inspections should be performed in • way that minimizes interference
with PRP sit* activities or undue complication of field activities. EPA
will take corrective steps, as described in Section VII and Attachment IV
of this appendix, if unsatisfactory performance or other deficiencies
are identified.
Several field-related tasks may be performed during oversight inspec-
tions. These tasks include:
On-site presence/inspection - As specified in Section 104(e)(31,
EPA reserves the right to conduct on-site inspections at any reason-
able tine. EPA will therefore establish an on-site presence to
assure itself of the quality of work being conducted by PRPs. At a
minimum, field oversight will be conducted during critical times,
such as the installation of monitoring wells and during sanpling
events. EPA will focus on whether the PRPs adhere to procedures
specified in the SOW and Work Plan(s), especially those concerning
QA/QC procedures. Further guidance regarding site characterization
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activities is presented in the RI/FS Guidance, the "Compendium of
Superfund Field Operations Methods" (August 1987 - OSWER Directive
No. 9355.0-141), the "RCRA Ground Water Technical Enforcement
Guidance Document" (September 1986 - OSWER Directive No. 995C.1) ,
the NEIC Manual for Groundwater/Subsurfaee Investigations at
Hazardous Waste Sites (U.S. EPA, 1981Q, and OWPE's forthcoming
"Guidance on Oversight of Potentially Responsible Party Remedial
Investigations and Feasibility Studies."
Collection and analysis of samples - EPA may collect a number of
QA/QC samples including blank, duplicate, and split samples. The
results of these sample analyses will be compared to the results of
PP.P analyses. This comparison will enable EPA to identify poten-
tial quality control problems and therefore help to evaluate the
quality of the PKP investigation.
Environmental Monitoring - EPA may supplement any PP.P environmental
monitoring activity. Such supplemental monitoring may include air
or water studies to determine additional migration of sudden
releases that may have occurred as a result of site activities.
o QA/QC Audits
EPA may either conduct, or require the PRPs to conduct (if speci-
fied in the Agreement), laboratory audits to ensure compliance with pro-
per QA/QC and analytical procedures, as specified in the Sampling and
Analysis Plan. These audits will involve on-site inspections of labora-
tories used by PRPs and analyses of selected QA/QC samples. All proced-
ures must be in accordance with those outlined in The User's Guide to
the Contract Laboratory Program, (U;S. EPA, 1986) or otherwise specified
in the Sampling and Analysis Plan.
o Chain*of-Custody
Chain-of-custody procedures will be evaluated by EPA. "This evalua-
tion will focus on determining if the PRPs and their contractors adhere
to the procedures set forth in the Sampling and Analysis Plan. Proper
chain-of-custody procedures are described in the National Enforcement
Investigation Center (NEIC) Policies and Procedures Manual, (U.S. EPA,
1981b).Evaluation of chain-of-custody procedures will occur during
laboratory audits as veil as during on-site inspections of sampling
activities.
Meetings
Meetings between EPA, the State, and PRPs should be held on a regu-
lar basis (as specified in the Agreement) and at critical times during
the RI/TS. Such critical times nay at a minimum include when the SCW
and the Work Plan are reviewed, the RI is in progress and completed,
remedial alternatives are developed and screened, detailed analysis of
the alternatives is performed, and the draft and final RI/TS reports are
A- 28
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submitted. These meetings will discuss overall progress, discrepancies
in the work performed, problems encountered in the performance of Rl/FS
activities and their resolution, community relations, and other related
issues and concerns. While meetings may be initiated by either the PRPs
or EPA at any time, they will generally be conducted at the stages of
the RI/TS listed below.
o Initiation of Activities
EPA, the State, and the PRPs may meet at various times before field
activities begin to discuss the initial planning of the RI/FS. Meetings
may be arranged to discuss, review, and approve the SOW; to develop the
EPA/PR? Agreement; and to develop, review, and approve the Work Plan.
o Progress
EFA may request meetings to discuss the progress of the RI/FS.
These meetings should be held at least quarterly and will focus on the
iter.s submitted in the monthly progress reports and the findings from
EPA oversight activities. Any problems or deficiencies in the work will
be identified and corrective measures will be requested (see
Section VIII and Attachment IV) of this appendix.
o Closeout
EPA may request a closeout meeting upon completion of the RI/FS.
This meeting will focus on the review and approval of the final RI/FS
report, termination of the RI/TS Agreement, and any final on-site activi-
ties which the PRPs may be required to perform. These activities may
include maintaining the site and ensuring that fences and warning signs
are properly installed. The transition to remedial design and remedial
action will also be discussed during this meeting.
Special Studies
EPA may determine that special studies related to the PRP RI/FS are
required. These studies can be conducted to verify the progress and
results of RI/FS activities or to address a specific complex -or contro-
versial issue. Normally, special studies are performed by the PRPs;
however, there nay be cases in which EPA will want to conduct the
independent »tudie«. The PRPs should be informed of any such studies
and given adequate tine to provide necessary coordination of site per-
sonnel and resource*. If not provided for in the Agreement, modifica-
tions to the Work Plan may be required.
A-29
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ATTACHMENT IV
CONTROL OF ACTIVITIES
Identification of Deficiencies
Oversight activities may identify unsatisfactory or deficient PRP
p€rfora*j.ce. The determination of such performance may be based upon
findings such as:
o Work products are inconsistent with the SCK or Work Plan;
o Technical deficiencies exist in submittals or other RI/FS
products;
o Unreasonable delays occur while perforating RI/FS activities;
and
o Procedures are inconsistent with the NCP.
Corrective Measures
The need to perform corrective measures may arise in the event of
deficiencies in reports or other work products, or unsatisfactory per-
formance of field or laboratory activities. When deficiencies are iden-
tified corrective measures may be sought by: (1) notifying the PRPs;
U) describing the nature of the deficiency; and (3) either requesting
the PRFs to take whatever actions they regard as appropriate or setting
forth appropriate corrective measures. The following subsections
describe this process for each of the two general types of activities
that may require corrective measures.
o Corrective Measures Regarding Work Products
Agency review and approval procedures for work products generally
allow three types of responses: (1) approval; (2) approval with modifi-
cations; and (3) non-approval. Non-approval of a work product (includ-
ing project plans) immediately constitutes a notice of deficiency. EPA
will immediately notify the PRPs if any work product is not approved and
will explain the reason for such a finding.
Approval with modifications will not lead to a notice of deficiency
if the) Modifications are made by the PRPs without delay. If the PRPs
significantly delay in responding to the Modifications, the RPH would
issue a notice of deficiency to the PRP project manager detailing the
following elements»
A description of the deficiency or a statement describing
in what Manner the work product was found to be deficient
or unsatisfactory;
A-30
-------
Modifications that the PRPs should make in the work prod-
uct to obtain approval;
A request that the PRPs prepare a plan, if necessary, or
otherwise identify actions that will lead to an accept-
able work product;
A schedule for submission of the corrected work product;
An invitation to the PRPs to discuss the matter in a con-
ference; and
A statement of the possibility of EPA takeover at the
PRPs' expense, EPA enforcement, or penalties (as appro-
priate) .
o Corrective Measures Regarding Field Activities
When the lead agency discovers that the FRPs (or their contractors)
are performing the RI/FS field work in a manner that is inconsistent
with the Work Plan, the PRPs should be notified of the finding and asked
to voluntarily take appropriate corrective measures. The request is
generally made at a progress meeting, or, if immediate action is required,
at a special meeting held specifically to discuss the problem. If correc-
tive measures are not voluntarily taken, the RPK should, in conjunction
with appropriate Regional Counsel, issue a notice of deficiency contain-
ing the following elements:
A description of the deficiency;
A request for an explanation of the failure to perforr.
satisfactorily and a plan for addressing the necessary
corrective measures;
A statement that failure to present an explanation may be
taken as an admission that there is no valid explanation;
An invitation to discuss the matter in a conference
(where appropriate);
A statement that stipulates penalties may accrue or are
accruing, project termination may occur, and/or civil
action may be initiated if appropriate actions are not
taken to correct the deficiency) and
A description of the potential liabilities incurred in
the event that appropriate actions are not taken.
Modifications to the work Plan/Additional Work
Under the Administrative Order (or Consent Decree), PRPs agree to
complete the RI/TS, including the tasks required under either the orig-
inal Work Plan or a subsequent or modified Work Plan. This may
A-31
-------
include determinations and evaluations of conditions that are unknown at
the time of execution of the Agreement. Modifications to the original
RI/FS Work Plan are frequently required as field work progresses. Work
not explicitly covered in the Work Plan is often retired and therefore
provided for in the Order. This work is usually identified during the
P.I and is driven by the need for further information in a specific area.
In general, the Agreement should provide for fine-tuning of the Ri, or
the investigation of an area previously unidentified. As it becomes
clear what additional work is necessary, EPA will notify the PRPs of the
work to be performed and determine a schedule for completion of the work.
ZPA must ensure that clauses for modifications to the Work Plan are
included in the Agreement so that the PRPs will carry out the modifica-
tions as the need for them is identified. To facilitate negotiation on
these points, EPA may consider one or more of the following provisions
in the Agreement for addressing such situations:
Defining the limits of additional work requirements;
Specifying the dispute resolution process for modified Work
Flans and additional work requirements;
Defining the applicability of stipulated penalties to any addi-
tional work which the PRPs agree to undertake.
Dispute Resolution
As discussed elsewhere in this guidance, the RI/FS Order developed
between EPA and the PRPs sets forth the term* and conditions for con-
ducting the RI/FS. An element of this Agreement is a statement of the
specific steps tc be taken if a dispute arises between EPA (or its
representatives) and the PRPs. These steps should be well defined and
agreed upon by all signatories to the Agreement.
A dispute with respect to the Order is followed by a specific
period of discussion with the PRPs. After the discussion period, EPA
issues a final decision which becomes incorporated into the Agreement.
Administrative Orders should clarify that with respect to all subnittals
and work performed, CPA will be the final arbiter. The court, on the
other hand, is the final arbiter for Consent Decrees.
Penalties
Kt an incentive for PRPs to properly conduct the RI/FS and correct
any deficiencies discovered during the conduct of the Agreement, EPA
should include stipulated penalties. Section 121 provides up to S25.0CC
per day in stipulated penalties for violations of a Consent Decree while
Section 122 allows EPA to seek or impose civil penalties for violations
of Administrative Orders. Penalties should begin to accrue on the firs:
3In order to provide for stipulated penalties in an Administrative Order
the parties must vpluntarily include them in the terms of the Agreement,
A-32
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day of the deficiency and continue to be assessed until the deficiency
is corrected. The type of violation (i.e., reporting requirements
vs. implementation of construction requirements), as veil as the amounts,
should be specified as stipulated penalties in the Agreement to avoid
negotiations on this point which nay delay the correction. The amounts
should be set pursuant to the criteria of Section 109 and as such must
take into account the nature, circumstances, extent, and gravity of the
violations as well as the PRPs' ability to pay, prior history of viola-
tions, degree of culpability, and the economic benefit resulting from
noncompliance. Additional information on stipulated penalties can be
found in DECK'S "Guidance on the Use of Stipulated Penalties in Hazard-
ous Waste Consent Decrees" (September 27, 1987).
Project Takeover
Generally, EPA will consult with PRPs to discuss deficiencies and
corrective measures. If these discussions fail, EPA has two options:
(1) pursue legal action to force the PRPs to continue the work; or
(2) take over the RI/FS. If taJcing legal action will not significantly
delay implementation of necessary remedial or removal actions, EPA may
commence civil action against the noncomplying PRP to enforce the Admin-
istrative Order. Under a Consent Decree, the matter would be presented
to the court in which the Decree was filed to enforce the provisions of
the Decree.
If a delay in Rl/FS activities endangers public health and/or the
environment or will significantly delay implementation of necessary
remedial actions, EPA should move to replace the PRP activities with
FuTid-financed actions. The RPM will take the appropriate steps to
assume responsibility for the RI/FS, including issuing a stop-work order
to the PRPs and notifying the EPA remedial contractors. In issuing stop
work orders, RPMs should be aware that Fund resources may not be automat-
ically available. But, .in the case of PRP actions which threaten human
health or the environment, there may be no other course of action. Once
this stop work, order is issued, a fund-financed RI/FS will be undertaken
consistent with EPA funding procedures.
WDR376/029
A-33
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAY 2 7 1983
OSWER Directive #9834. 9a
MEMORANDUM
SUBJECT: Interim Policy on Mixed Funding Settlements Involving
the Preauthorization of States or Political
Subdivisio
~
FROM: J.finstttn Porter
Assistant Administrator
Office of Solid Waste and Emergency Response
Thomas L. Adams, Jr.
Assistant Administrator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators, Regions I - X
I. INTRODUCTION
The purpose of this memorandum is to establish the Agency's
interim policy on the use of mixed funding settlements that
involve the preauthorization of States or political subdivisions
when such parties are potentially responsible parties. (PRPs) at
Superfund sites. 1 This memorandum addresses one specific
question that arose during negotiations at a municipal landfill.
The question was whether the Agency could approve a request for
preauthorization submitted by a political subdivision seeking to
file a claim against the Fund for reimbursement of a portion of
response costs at a Superfund site. The question of whether a
political subdivision is eligible to request preauthorization in
the context of a mixed funding settlement was resolved during a
November 1987 Assistant Administrator Review Team (AART) meeting.
This policy formalizes that decision and is expanded to include
States as well.
1 This policy supplements the guidance on "Evaluating Mixed
Funding Agreements Under CERCLA." The Mixed Funding guidance
presents a method for determining whether it nay be appropriate
to settle for less than 100% of response costs and provides
examples of the types of sites that are good and poor candidates
for mixed funding. This guidance was signed on October 20, 1987
and was issued under OSWER Directive f9834.9.
-------
OSWER Directive #9836.9a
II. ISSUE
Mixed Funding (Section 122(b)(l))
Section 122(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 as amended by the
Superfund Amendments and Reauthorization Act of 1986 (CERCLA)
authorizes EPA to enter into mixed funding settlements with PRPs.
Section I22(b)(l) authorizes one type of mixed funding where PRPs
agree to perform the response activity and the Agency agrees to
reimburse the PRPs for a portion of their response costs. The
Agency implements this type of mixed funding by approving the
PRP's request for preauthorization to undertake the response and
by awarding monies from the Fund once the response action is
completed.
The term preauthorization refers to the approval that PRPs
must obtain from EPA prior to the conduct of cleanup actions and
before a claim for reimbursement of response costs is presented
to the Fund. If preauthorization is granted, it serves as an
Agency commitment that, if the response is conducted pursuant to
the settlement agreement and the costs are reasonable and
necessary, reimbursement will be available from the Fund as
specified by the agreement. EPA will grant preauthorization to
PRPs only in the context of settlement agreements. 2
Although section 1-22 (b)(l) provides authority for mixed
funding, it does not specify a-mechanism for permitting the Fund
to be used for this purpose. CERCLA's principal claims mechanism
is section 111(a) and the Agency uses this mechanism for
reimbursing PRPs for a portion of their response costs pursuant
to a mixed funding agreement.
Reimbursement of Claims (Section 111(a))
Section 111(a) provides that the President shall use the
money in the Fund for:
(1) payment for governmental response costs incurred
pursuant to section 104 ...
(2) payment of any claim for necessary response costs
incurred by anv other person ... (emphasis added).
2 For a more detailed discussion about preauthorization see
the guidance on "Evaluating Mixed Funding Settlements Under
CERCLA" cited earlier.
-------
OSWER Directive 19834.9a
A question arose on the precise meaning of "any other
person" under section lll(a)(2). Specifically, the question was
whether, when read in conjunction with section lll(a)(l), "any
other person" means any person other than a governmental entity.
The Agency believes that "any other person" can include
governmental entities when they are PRPs and when they are acting
pursuant to a settlement agreement as discussed below. Note that
any person who plans to file a claim against the Fund under the
section 111 (a) (2) response claims process must first obtain
preauthorization (i.e., prior EPA approval).
III. PREAUTHORIZATION OF STATES OR POLITICAL SUBDIVISIONS
In considering mixed funding at a site that involves a State
or political subdivision as a PRP, the Region must first
determine whether the offer is an acceptable candidate for mixed
funding. This determination must be made at all sites where
mixed funding is being considered and must be made by applying
the criteria established in the "Interim CERCLA Settlement
Policy" and the guidance on "Evaluating Mixed Funding Agreements
Under CERCLA." 3
The Settlement Policy establishes ten criteria that must be
applied to a settlement offer to determine whether it is
appropriate to settle for less than 100% of response costs. The
Mixed Funding guidance provides a more detailed discussion about
how to apply the ten settlement criteria to mixed funding
settlement offers, including a discussion about which factors
generally make an offer an acceptable candidate for mixed
funding.
The Region must also consider the following additional
criteria. States or political subdivisions are eligible to file
claims against the Fund only when:
(1) the State or political subdivision is a PRP under
section 107 at the site; and
(2) the State or political subdivision will carry out the
response pursuant to a settlement agreement under
section 122.
3 The "Interim CERCLA Settlement Policy" was issued under
OSWER Directive #9835.0 on February 5, 1985. The Mixed Funding-
guidance was cited earlier.
-------
OSWER Directive #9834.9a
If you have any questions or comments regarding this interim
policy, please contact Kathleen MacKinnon in the Office of Waste
Programs Enforcement at FTS-475-9812.
cc: Jon Cannon, OWPE
Lisa Friedman, OGC
Edward Reich, OECM
Henry Longest, OERR
David Buente, DOJ
Waste Management Division Directors, Regions I - X
Regional Counsels, Regions I - X
Municipal Settlement Workgroup Members
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1,^
\
>
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
J WASHINGTON. D.C. 20460
JUN 21 1988 D"'CE
««••* b. |»~~ , - c
9831.7
MEMORANDUM
SUBJECT: Supporting State Attorneys General CERCLA Remedial
and Enforcement Response Activities at NPL Sites
FROM: Henry L. Longest, Director 'l/^JLu^ (/V.
Office of Emergency and Remedial Response
Jonathan 2^ Carinor/ *«ctlng Director
Office/of Waste Programs Enforcement
TO: Waste /Management Division Directors
Regions I - X
PURPOSE
The Agency has received several inquiries over the last few
months-about the eligibility of State Attorneys General (AG) to
receive funds to support their CERCLA response activities at NPL
sites, and the specific funding mechanisms for awarding these
funds. Administrator Lee M. Thomas has also asked that we
clarify the Agency's position on funding State AGs.
This memorandum reaffirms that it is the Agency's policy to
enter into cooperative agreements with a single designated State
lead agency. However, it also reaffirms that CERCLA funds may be
available to State AGs, and describes three types of cooperative
agreements by which funds may be passed through the State lead
agency to the State AG.
BACKGROUND
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), authorizes EPA to enter into
cooperative agreements with States to conduct response actions at
hazardous waste sites. A Superfund cooperative agreement award
is the assistance vehicle that transfers funds for response to
the States and documents both EPA and State responsibilities for
a site. EPA will only enter into cooperative agreements with the
State lead agency (usually the State's pollution control agency)
as designated by the State's Governor.
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9831.7
To involve other essential State agencies, such as the state
AG's office, the State lead agency typically enters into an
intergovernmental agreement with these other agencies.
Therefore, the mechanism for providing funds to other State
agencies is:
0 A cooperative agreement wj.th the State lead agency;
along with
0 A pass-through by the State lead agency to .another
agency by way of a two-party intergovernmental
agreement prior to costs being incurred.
PROCEDURES FOR STATES AND EPA REGIONAL OFFICES
The State
The State AG may require Fund money to conduct their
responsibilities for the State's CERCLA program, or the State
lead agency may require State AG support to conduct their
responsibilities. In either case, any request for funding from
EPA must come from the state lead agency.
Therefore, in developing a cooperative agreement
application, the State lead agency must:
° Indicate which portion of the funds requested are for
the State AG's efforts; and
0 Identify the specific tasks the State AG will conduct
with the funds.
The EPA Regional Office
When reviewing cooperative agreement applications, Regional
offices must consider how CERCLA funds will be allocated among
Stat* agencies, such as the State AG, whose participation may be
necessary or required to achieve cleanup of the site. This step
is essential, in order to determine that the Stat* lead agency
will have the necessary technical and legal support for
completing all remedial and enforcement response activities at
the site.
Knowledge of each State agency'• roles and responsibilities
will also enhance communication between those offices and between
the State lead agency and Regional office in developing and
implementing State projects.
Therefore, in reviewing a cooperative agreement application,
the Region must determine:
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9831.7
0 Whether the funding requirements and tasks of the State
AG are addressed; and if not reflected in the
application,
0 Whether the State AG has been notified and consulted
with by the State lead agency prior to awarding the
agreement.
This will ensure that the State AG is fully informed of the
project, and will have the necessary or required resources and
staff to uphold its project responsibilities.
TYPES OF COOPERATIVE AGREEMENTS AVAILABLE FOR AG FUNDING
Generally, the three existing types of cooperative
agreements will continue to be used to fund State AG efforts.
These are (1) a Core Program Cooperative Agreement; (2) a
Cooperative Agreement for Support Agencies at Federal-lead sites;
and (3) a Site-specific Cooperative Agreement.
Core Program Cooperative Agreements (CPCAs)
CPCAs were created by EPA to ensure that each State has the
funds it needs to develop and manage a program to carry out its
CERCLA activities at NPL sites. Under a CPCA, a State may
receive up to $250,000 to cover administrative, management and
coordination costs associated with building, strengthening and
maintaining a state's CERCLA program.
Under a CPCA, the State lead agency requests funds for
developing, managing and/or supporting the State's CERCLA
response program. Of the several functions that are eligible for
CPCA funding some portion of the $250,000 may be provided to the
State AG for its assistance in these areas, including such things
as:
0 Development and refinement of a State CERCLA
enforcement program and procedures for implementation;
0 D*v«lopm«nt of legal authorities;
0 Protocols for document review for legal sufficiency and
enforceability;
0 Legal assistance, such as for coordinating the
identification of ARARs and development of
administrative records; and
0 Other general legal assistance as appropriate.
-------
9831.7
With specific regard to the above tasks, if the State lead
agency needs to identify a portion of the State's CPCA funds for
the State AG, it must do so both in the cooperative agreement
application and statement of .work. If the State AG agrees to
provide such assistance, a copy of the intergovernmental
agreement to this effect must be attached to the application.
Please refer to the "Final Guidance on State Core Program
Funding Cooperative Agreements," dated December 18, 1987, (OSWER
Directive Number 9375.2-01) for more information on CPCAs.
Cooperative Agreements for Support Agencies at Federal-lead sites
EPA coordinates all site-specific Federal-lead response
activities with States. To monitor progress and meaningfully
consult with EPA at these sites, States may review significant
documents produced during a project, attend important meetings
about site progress, and make site visits. Such site-specific
activities performed by the State are known as management
assistance.
Management assistance applies to Federal-lead enforcement
sites as well as Federal-lead Fund-financed sites. With specific
reference to Federal-lead enforcement sites, States may request
management assistance funds so that they may be involved or
participate in programmatic discussions and review activities
with EPA and potentially responsible parties (PRPs). One example
of'" this programmatic responsibility may be making a legal
determination of applicable State requirements for an NPL site as
part of the ARAR identification process.' Management assistance
funds are available to the State lead agency for these tasks.
Assistance for such tasks may be provided by the State AG.
However, even where the State AG is directly responsible for
various tasks, the State lead agency must still request the funds
from EPA for the State AG.
Cooperative Agreements for Site-specific Response at State-lead
Sites (Single or Multi-Site Agreements)
EPA and the State will typically negotiate annually to
determine who will have the lead for response activities at NPL
sites. This holds true for both Fund-lead and enforcement-lead
sites. Again, with specific reference to enforcement sites, EPA
and the State may agree to designate a site as State-lead
enforcement. If so, the State nay receive funding for various
enforcement activities, including (1) PRP searches; (2) issuance
of notice letters to PRPs; (3) negotiations with PRPs to secure
their commitment for site cleanup; (4) administrative or judicial
enforcement actions to compel PRP cleanup; and (5) oversight of
PRP response activities. The State lead agency may either have
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9831.7
the legal capability or responsibility to perform these tasks
itself, or it may request or require that the State AG perform
these tasks. In the latter case, the State lead agency must
request the funds in its cooperative agreement application for
State AG performance of these tasks. Under a multi-site
cooperative agreement, the State lead agency may request funds
for the State AG allocated to the sites at which the State AG may
have a role.
Please see OERR's manual on "State Participation in the
Superfund Program" and OWPE's "Interim Final Guidance Package on
Funding CERCLA State Enforcement Actions at NPL Sites," dated
April 7, 1987, (OSWER Directive Number 9831.6) for additional
information on management assistance and site-specific
cooperative agreements.
STATUS OF FUNDING TO SUPPORT STATE AG EFFORTS
For your information, we have attached a list of States
which have identified funds for their State AG in either a CPCA
or site-specific cooperative agreement with EPA. The site-
specific cooperativ-e agreements which have funds for pass-through
to the State AG are currently all related to management
assistance at enforcement sites.
Should you have any questions on this matter, please contact
Tony Diecidue at FTS-382-4841 (enforcement-lead) or John Banks
(Fund-lead) at FTS-382-2450.
Attachment
cc: Superfund Branch Chiefs, Region I - X
Superfund Section Chiefs, Region I - X
Regional Counsels, I - X
Grants Administration Contacts, Region I - X
National Association of Attorneys General
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6
9831.7
ATTACHMENT
STATUS OF FUNDING TO SUPPORT STATE AG EFFORTS*
SITE-SPECIFIC CORE PROGRAM
REGIOff COOPERATIVE AGREEMENTS COOPERATIVE AGREEMENTS
1 None None
2 None Regional discussions with
Puerto Rico indicate they
may fund AG.
3 None Virginia and Maryland
4 None Regional discussions with
South Carolina indicate
they may fund AG.
5 None None
6 Management assistance None. All State lead
CA at an enforcement agencies have own legal
site (Combustion Inc./ support.
LA) .
7 None None
8 Colorado Colorado
9 None None
10 Oregon and Idaho None
Information gath«r«d from phone survey of Regions I-X.
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^60 Sriff
/ ^^ i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 20460
SOL.D W4S" iNC =M£BG:NC
JUN 7 lose
MEMORANDUM
SUBJECT: Transmittal of Guidance on Documenting Decisions not to
Take Cost Recovery Actions
FROM: JonatQw, Acting Director
Office of Waste Programs Enforcement (OWPE)
TO: Addressees
Attached is the "Guidance on Documenting Decisions not to
Take Cost Recovery Actions". This document Was previously
circulated for comment with the Draft Superfund Cost Recovery
Strategy. The guidance discusses the importance of documenting
decisions not to pursue cost recovery actions and provides
procedures for drafting memoranda to document such decisions.
The procedures should be followed for every site where a decision
is made not to pursue an action for the recovery of unreimbursed
Fund expenditures.
In addition to implementing the procedures for new cases as
they arise, each Region should review the backlog of sites where
a decision, express or implicit, was made not to pursue cost
recovery. A cost recovery close-out memorandum should be written
for every site in this backlog. To conserve resources and yet
address this backlog, Regions should initially draft close-out
memoranda for only those sites that will not be pursued further
and the total unreimbursed response costs exceed two hundred
thousand dollars. Among those cases, the Regions should
concentrate first on close-out memoranda for those sites with
larger amounts of unrecovered costs. Once that backlog has been
addressed, the less than two hundred thousand dollar cases should
be revisited and closed out, if appropriate.
Attachment
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Addressees: Directors, Waste Management Divisions
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Divisions
Regions III, VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Directors, Environmental Services Divisions
Regions I, VI, VII
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OSWER Directive No. 9832.11
JUN 7 --
MEMORANDUM
SUBJECT: Guidance on Documenting Decisions not to Take Cost
Recovery Actions
FROM: Jonathan Z^<(nWbn, Acting Director
Office of Waste Programs Enforcement (OWPE)
TO: Addressees
PURPOSE
This document is intended to provide information on the
content of close-out memoranda which should be written for each
site where the Agency does not intend, on the basis of certain
information, to pursue an action for recovery of unreimbursed
Hazardous Substances Superfund (Fund) monies.
BACKGROUND
Pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (CERCLA) ,
the Agency is charged with management of the Fund. Fund monies
expended in response to releases or threatened releases of
hazardous substance* are fully recoverable pursuant to §107 of
CERCLA as long as response actions conducted were not
inconsistent with the national contingency plan (NCP).
Because of th« Agency's accountability for management of the
Fund, an affirmative decision whether or not to pursue a cost
recovery action must be made for each removal action and remedial
action in which CERCLA funds are expended. Decisions to pursue
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OSWER Directive No. 9832.11
cost recovery are reflected in referrals and settlements.
Decisions not to proceed with cost recovery efforts are to be
documented in close-out memoranda. Determinations not to pursue
cost recovery are important for satisfying EPA management's
accountability for cost recovery on a site by site basis.
Additionally, by documenting which cases will not be pursued, the
close-out memoranda will aid in planning referrals and projecting
revenues to the Fund in future years.
PRE-DECISIONAL ACTIVITIES
In removal actions where time permits and in remedial
actions, the Regions generally will conduct a PRP search and seek
to have the PRPs undertake the clean-up prior to funding a
response action. PRP searches that are not essentially complete
when the response starts are completed during or after the
federally-funded action. While the primary•purposes of a PRP
search are to identify PRPs who may be induced to perform work
and to provide evidence for cost recovery lawsuits, PRP searches
also form a basis for determining not to pursue a cost recovery
action. For example, it may form a basis for not filing where*
PRPs cannot be identified, where the evidence linking possible
PRPs to a site is very tenuous, or where PRPs" are not viable.
TIMING OF THE MEMORANDUM
CERCLA §113 establishes the statute of limitations for
recovery of post-SARA response costs.1 The statute of
limitations provision, which was added by SARA, applies only to
those response actions initiated after the effective date of
SARA. To minimize opportunities for challenges in litigation,
however, the Regions should operate as though the SARA statute of
limitations applies to all removal and remedial actions, and plan
the referral of viable cases consistent with that assumption.
V CERCIA §113 states "An initial action for recovery of
costs referred to in section 107 must be commenced—(A) for a
removal action, within 3 years after completion of the removal
action, except that such cost recovery action must be brought
within 6 years after a determination to grant a waiver under
section 104(c)(l)(C) for continued response action: and (B) for a
remedial action , within 6 years after initiation of physical on-
site construction of the remedial action, except that, if the
remedial action is initiated within 3 years after completion of
the removal action, costs incurred in the removal action may be
recovered in the cost recovery action brought under this
subparagraph."
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3 OSWER Directive No. 9832.11
When to prepare a cost recovery close-out memorandum will
depend upon the specifics of the case. Normally, the decision
not to pursue cost recovery should be made some time after the
case would be "ripe" for referral of a judicial action for cost
recovery.2 The close-out memorandum may be prepared and signed
as soon as the Region is reasonably sure that information
developed later will have no bearing on viability of a cost
recovery action. For example, if a thorough PRP search is
conducted prior to the commencement of a federally funded
remedial design but no viable PRPs are found, a cost recovery
close-out memorandum may be prepared while the remedial design is
underway. If there is a settlement for less than all costs and
the Region does not intend to recover the remaining costs (e.g..
where there are no viable PRPs), this must be addressed in the
ten point settlement analysis (if known at that time) or a
separate close-out memorandum. Of course, signing of a close-out
memorandum does not extinguish or compromise any cost recovery
rights of EPA and does not foreclose the Agency from re-opening
the case in the event additional parties are discovered, new
evidence is developed, or any other reason.' Moreover, to
facilitate planning of referrals and projections of revenues, j.t
is advantageous to close out cases as soon as possible. In any
event, the memorandum must be prepared prior ^to the relevant real
or potential statute of limitations date.
CONTENT OF THE MEMORANDUM DOCUMENTING A DECISION NOT TO PURSUE
COST RECOVERY
If all available enforcement information on a site points to
a recommendation not to pursue cost recovery, a close-out
memorandum should be written by the staff program person assigned
to the case and, where legal issues are involved, in consultation
with the Office of Regional Counsel. The memorandum must be
signed by the program division director (in most regions this is
the Waste Management Division Director). The Memorandum and its
supporting documents (e.g., the PRP Search Report, the Action
Memorandum) should be placed in the permanent site file but
should remain confidential since enforcement discretion is
involved. As an enforcement confidential document, the
memorandum is not available under the Freedom of Information Act.
The memorandum should not be included in the administrative
record.
2/ As noted in the June 12, 1987 guidance "Cost Recovery
Actions/Statute of Limitations", OSWER Directive No. 9832.3-1A,
removal actions are ripe for referral of a judicial action
immediately following completion of the action. Remedial sites
become ripe for referral of a judicial action concurrent with the
start of the remedial action.
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4 OSWER Directive No. 9832.11
The memorandum should include four sections: A. Site
Description; B. Work Conducted and Associated Costs;
C. Discussion of Basis not to Pursue Cost Recovery; and D.
Cone.usion.
A. Site Description. This section should briefly identify the
site and its location, and the EPA identification number (12-
digit EPA ID #). It should very briefly describe the
environmental condition of the site. References to an Action
Memorandum or Remedial Investigation/ Feasibility Study Report
should be utilized to keep the memo brief.
B. Work Authorized and Conducted and Associated Costs. This
section should briefly describe the action(s) taken by EPA (or a
state under a cooperative agreement or a contractor) on the site
and the initiation and completion date of the response action(s)
taken. In addition, this section should provide an estimate of
the amount of money spent or expected to be spent for all past
and future response actions.
This section should also note any previous settlement(s)
(whether for work or cost recovery) and the dollar value of the
settlement(s).
c. Discussion of Basis not to Pursue Cost Recovery. This
section should include the information that leads the Division
Director to the conclusion that further cost recovery efforts
should not occur. The memorandum must clearly state the reason
that the decision was made not to pursue cost recovery at the
site. Possible reasons include:
1) No PRPs were identified for the site. The potentially
responsible party search report or other documentation of the
completed PRP search effort should be referenced.
2) "he PRPs identified in the PRP search are not financially
viable. A written evaluation of the ability of any identified
PRPs to satisfy a judgment for the amount of the claim or to pay
a substantial portion of the claim in settlement should be
conducted during the PRP search.3 The close-out memorandum
should reference the results of the evaluation.
3) The available evidence does not support one or more essential
elements of a prospective case and there is no reason to believe
that such evidence can be discovered or developed in the future.
3/ The Potentially Responsible Search Manual, (OSWER
Directive No. 9834.6) provides information on how to go about
collecting information on the financial status of companies and
individuals.
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5 OSWER Directive No, 9832.11
See the August 26, 1983 guidance document on Cost Recovery
Actions Under the Comprehensive Environmental Response.
Compensation, and Liability Act of 1980 (OSWER Directive No.
9832.1) for a further discussion of the essential elements of a
cost recovery action.
4) The legal case is so questionable that cost recovery should
not be pursued. The close-out memorandum should identify what
legal issues (e.g.. statute of limitations) would impair
successful cost recovery efforts.
5) The Agency lacks resources to pursue the case. This reason
may only be used for those sites where total costs of response at
the site do not exceed two hundred thousand dollars and
settlement efforts have been exhausted. Some actions will be
filed where expenditures are less than $200,000. While such
small cases should not automatically be closed out for this
reason, some may have to be. For example, resources for very
small cases for cost recovery efforts beyond the issuance of
demand letters may not be available prior to the expiration of
the statute of limitations. Sites closed out solely on this
basis should not be closed out until it has been determined that
there will not be resources to pursue an actfbn prior to the
expiration of the statute of limitations.
6) Other reasons. There may be reasons, not identified above,
that form the basis for making a decision not to pursue cost
recovery (or further cost recovery) at a particular site. One
example is the existence of an agreement by the PRP(s) (in the
form of a consent order or decree) to conduct the response
action(s) approved by EPA. While the Agency may not have waived
explicitly in the settlement some or all of oversight costs
incurred, the Agency may decide later not to pursue those costs
because the PRP(s) has been cooperative in agreeing to conduct
work.4 In this example, if there are non-settlors, the close-out
memorandum must analyze the case against them based upon the
factors delineated above. A low dollar threshold does not
necessarily apply to a case where there are recalcitrant non-
settlors.
Each close-out memorandum prepared must contain at least one
of the above reasons but should contain all the reasons that
exist.
D. Conclusion. The conclusion should restate the amount of the
total response costs expended or projected for the site not
4/ See the Interim CERCIA Settlement Policy.
December 5, 1984, OSWER Directive No. 9835.0.
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6 OSWER Directive No. 9832.11
previously recovered. It should also restate the basis for not
pursuing cost recovery at the site.
NEW INFORMATION In the event that a Cost Recovery Close-Out
Memorandum has been signed and new relevant information comes to
light, the case should be re-examined to determine whether the
decision not to proceed with cost recovery efforts is still
valid. Factors -3 be reviewed included the total dollar amount
of funds expended or to be expended; the relevant statute of
limitations date; and the changes to the strength of the case
resulting from the new information.
REPORTING REQUIREMENTS
OWPE is incorporating reporting requirements for cost
recovery close-out memoranda into the CERCLIS system. Guidance
on using the system to report the information contained in the
close-out memoranda will be issued in the future.
CONCLUSION
Close-out memoranda are necessary for EPA to effectively
manage the Hazardous Substance Superfund. Iff order to
effectively budget future Fund actions, EPA must know which sites
have unrecoverable costs associated with them. The close-out
memorandum discussed in this guidance will provide the Agency
with a means of tracking those sites with no potential for return
and allow them to be removed from consideration for further cost
recovery action. If you have any questions concerning this
guidance please contact Carolyn Me Avoy of the Guidance and
Oversight Branch, OWPE, at FTS 475-8723.
Addressees: Directors, Waste Management Divisions
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Divisions
Regions III, VI
Director, Toxics and. Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Directors, Environmental Services Divisions
Regions I, VI, vil
cc: Regional Counsel, Regions I-X
Regional Counsel Waste Branch Chiefs, Regions I-X
Superfund (Enforcement) Branch Chiefs, Regions I-X
Superfund (Enforcement) Section Chiefs, Regions I-X
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Federal Register / Vol. 53. No. 138 / Tuesday. July 19. 1938 / Proposed Rules
27268
ENVIRONMENTAL PROTECTION
AQCNCY
40 CFR Parta 117,302, and 355
[P*l.-3307-3]
Reporting Exemption* for Federally
Permitted Reieeee* of Hazardous
Subctanoea
into the environment require notification
under CERCLA.
DATES: Comments must be submitted on
or before September 19.1968.
r Environmental Protection
Agency (EPA).
ACno»e Propoeed rule.
•UMMAMY: Section 103(t) of the
Comprehensive Environmental
Response. Compensation, and Liability
Act of 1980 (CERCLA). as amended
requires that the person in charge of a
vessel or facility from which a
hazardous substance has been released
in a quantity that is equal to or greater
than its reportable quantity (RQ) shall
immediately notify the National
Response Center of the release. Section
102(b} sets an RQ of one pound of
hazardous substances, except those for
which RQs have been established
pursuant to section 311a(b)(4) of the
clean Water Act Section 102(a)
authorizes the U.S. Environmental
Protection Agency (EPA) to adjust RQs
for hazardous substances and to
designate as hazardous substances
those substances that when released
into the environment may present
substantial danger to the public health
or welfare or the environment
The notification requirement under
sections 103(a) and 103(b) of CERCLA
applies to any release of a hazardous
substance "other than a federally
permitted release." Section 101(10) of
CERCLA defines "federally permitted
release" in terms of the discharge
requirements of a number of State and
Federal programs. Section 107(j) of
CERCLA also exempts a -federally
permitted release" from liability under
CERCLA for response costs and
damages incurred due to the release.
The purpose of this rulemaidng is to
clarify the federally permitted release
exemption from CERCLA release
reporting and liability provisions.
Today's proposed rule also addresses
this exemption from the notification
requirements under Title in of the
Superfund Amendments and
Reauthorization Act of 1966. The
Agency also proposes in this rule to
make conforming changes to the
regulation (40 CFR Pan 11?) describing
the notification requirements for
releases of hazardous substances under
section 311 of the Clean Water Act
Finafiy. this rulemaking addresses
several issues related to which releases
Coaunentt: Comments should be
submitted in triplicate to: Emergency
Response Division. Superfund Docket
Clerk. Attention: Docket Number 101(10)
FPR. Room LG-100, U.S. Environmental
Protection Agency. 401M Street SW,
Washington. DC 20460.
Docket: Copies of materials relevant
to this rulemaking are kept in Room LG-
100. at the above address. The docket is
available for inspection between 9*30
a A. and 4 A) pan. Monday through
Friday, excluding Federal holidays.
Appointments to review the docket can
be made by calling 202/382-3046. As
provided in 40 CFR Part 2. a reasonable
fee (the first 50 pages aze free and each
additional page costs 120) may be
charged for copying services.
POM fMrrHm iNPOMsATiOM CONTACT:
Mr. Hubert Walter*. Project Officer.
•Response Standards and Criteria
Branch. Emergency Response Division
(WH-548B). U.S. Environmental
• Protection Agency, 401 M Street SW..
Washington. DC 20460. (202) 382-2463;
or the
RCRA/Superfund Hotline. 1-800/424-
9358: in Washington. DC 1-202/382-
3000.
The toll-free telephone number of the
National Response Center is 1-600/424-
8802: in the" Washington. DC
metropolitan area, the number is 1-202/
426-2675.
SUPPLXMINTAKY INPOftMATtON: The
contents of today's preamble are listed
in the following outline:
I Introduction and General Comments
A. Background
B. Relationship to Reportinj Under Title III
IL Elements of the Exemption
OL Notification for Certain Types of Releases
A. to General
& PCS Waste Disposal
IV. Dtscharetes to POTWi
V. Retaliatory Analyses
A. Executive Order No. 122*1
B. Regulatory Flexibility Act
C Paperwork Reduction Act
L Introduction **"^ General Comments
A. Background
The Comprehensive Environmental
Response. Compensation, and Liability
Act of 1960 (Pub. L. 96-510). 42 US.C
9601 ft MO. (CERCLA or the Act),
enacted on December 11.1980. and
amended by the Superfund Amendments
and Reauthorization Act of 1966 (SARA)
(Pub. L 99-499), establishes broad
Federal authority to respond to releases
or threats of releases of hazardous
substances from vessels and faculties.
Section 101(14) of CERCLA defines th«
term "hazardous substances" chiefly b.
reference to other environmental
statutes with authority further granted
to the U.S. Environmental Protection
Agency (EPA) to designate additional
hazardous substances under CERCLA
section 102(a). The CERCLA list
currently contains 721 hazardous
substances.
Section 103(a) of the Act requires that
as soon as the person in charge of a
vessel or facility has knowledge of a
release of a hazardous substance from
such vessel or facility in a quantity
equal to or greater than the reportable
quantity (RQ) for that substance, the
person shall notify the National
Response Center immediately. Section
102(b) of CERCLA establishes RQs for
releases of hazardous substances at one
pound except for those substances
whose RQs were established at a
different level pursuant to section
311(b)(4) of the Clean Water Act (CWA).
Section 102(a) of CERCLA authorizes
the EPA Administrator to adjust all of
these RQs by regulation (see 40 CFR
302.4).
Section 109 of CERCLA and .section
325 of SARA Title ffl authorize EPA to
assess civil penalties for failure to repo-*-
releases of hazardous substances that
equal or exceed their RQs- Section 103
of CERCLA. as amended authorizes
EPA to seek criminal penaities-for
submitting false or misleading
information in a notification made
pursuant to CERCLA section 103. and
increases the maximum penalties and
years of imprisonmsnt for violation of
the CERCLA section 103 reporting'
requirement
One of the exemptions from section
103 reporting requirements is for
"federally permitted releases." The
definition of "federally permitted
release" in CERCLA section 101(10)
specifically identifies releases permitted
under other environmental statutes.
including the following general types of
releases:
• Discharges covered by a National
Pollutant Discharge Elimination System
(NPDES) permit permit application, or
permit administrative record:
• Discharges in compliance with a
legally enforceable permit for dredged
or fill materials under section 404 of the
CWA:
• Releases in compliance with a
legally enforceable Resource
Conservation and Recovery Act (RCRA)
hazardous waste management facility
final permit
• Releases in compliance with a
legally enforceable permit under the
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Federal Register / Vol. 53. No. 138 / Tuesday. |uly 19. 1988 / Proposed Rules
27289
Marine Protection. Research, and
Sanctuaries Act
• Any injection* of fluids authorized
under federally approved underground
injection control programs (including
federally authorized State programs)
pursuant to Part C of the Safe Drinking
Water Act
• Any air emissions subject to permit
or control regulations under certain
provisions of the Clean Air Act (CAA):
« Any injections of fluids or other
materials authorized by applicable State
law for the purpose of stimulating or
treating wells for the production of
crude oil. natural gas, or water, or for
other production or enhanced recovery
purposes:
• The introduction of any pollutant
into a publicly owned treatment works
when such pollutant is specified in and
in compliance with pretreatment
standards and a pretreatment program'
submitted to EPA for approval: and
• Any release of source, special
nuclear, or byproduct material in
compliance with a legally enforceable
license, permit regulation, or order
issued pursuant to the Atomic Energy
Act
la the May 25.1983 Notice of
Proposed Rulemaking (NPRM) (48 FR
23552) to adjust certain RQs. EPA
explained the Agency's interpretation of
each of the types of releases exempted
by the definition of "federally permitted
release." EPA has decided to repropose
the rule for federally permitted releases
today rather than publish a final rule
because of the amount of time that has
passed since the original proposal.
Today's proposed regulation would add
a definition of "federally permitted
release" to 40 CFR 302.3. Definitions.1
EPA received many comments on
various aspects of the federally
permitted release exemption, most of
which urged a broader interpretation of
one or more of the exemption categories.
General comments on the scope of the
exemption are discussed below.
followed by discussion of comments on
specific types of federally permitted
releases.
Several commenten discussed the
potential duplication between CERCLA
reporting requirements and reporting
requirements under existing permit
programs for releases exceeding levels
set by the terms of the permit These
commenten suggested that because
permit programs already may require
notification of a regulatory authority in
the event of a release exceeding permit
levels, such releases should be exempt
1 Furtter. today I propou) r*viMi tht dtfinition
of -|«|MM~ to rtftect SARA •mtndmcnl! to
CERCLA section lOl'.ZM.
from notification when permitted levels
are exceeded by an RQ or more.
CERCLA section 101(10). however.
generally limits the federally permitted
release exemption to those releases "in
compliance with" permitted or
regulatory requirements. A
straightforward interpretation of the
statute indicates that if a release
exceeds permitted levels, it is not "in
compliance with" the permit and cannot
be "federally permitted." Therefore, if
the amount of the release exceeding the
permitted level Le. the portion of the
release that is not federally permitted, is
equal to or exceeds the RQ. the release
must be reported immediately to the
National Response Center. This
approach also avoids the numerous and
unnecessary reports that could be
generated by the reporting of small
permit excursions that are better
addressed by the permitting authority.
EPA believes that its interpretation is
required by the plain language of the
statute and is essential to ensure
adequate protection of public health and
the environment The Agency believe*
that CERCLA reporting and reporting
under permit programs is not applicative
because there are significant differences
between the purposes served by
CERCLA notification and the purposes
of permit programs. The permit
notification requirements and the
information that is reported under
permit programs may differ from one
program to another. If permit
notification requirements were allowed
to suffice for CERCLA notification, the
information available to the CERCLA
program on releases might be
inconsistent and incomplete. Permit
programs also differ in their reporting
mechanisms and do not always require
immediate notification. In some cases.
releases in excess of permitted levels
need only be reported at specific
Intervals (e.g~ monthly). Moreover.
releases in excess of permit levels are
reported to different Federal and State
authorities, depending upon the permit
CERCLA requires immediate
notification to a central office, the
National Response Center, as soon as
the person in charge has knowledge of a
release equal to or exceeding an RQ. so
that timely response may be initiated if
the appropriate government authority
determines that the release may present
substantial danger to public health or
the environment
Moreover. EPA is not convinced that
requiring persons in charge of a vessel
or facility to make additional telephone
calls (to the National Response Center.
the loeal community emergency
coordinator, and the State emergency
response commission) to a toll-free or
local number constitutes an undue
burden on the regulated community.
Agency seeks comments on its
interpretation of the burdens and the
benefits of requiring reporting under
CERCLA and Federal or State permit
programs.
Several commenten recommended
that releases be considered federally
permitted releases (and therefore
exempt from CERCLA notification and
liability provisions) if they are exempt
from regulation by the statutes listed in
CERCLA section 101(10). EPA believes
that exempting such releases would be
contrary to the purpose of the
notification requirements, which is to
protect human health-and the
environment by requiring that
responsible authorities be notified of
releases that may require a timely
response. The exemption of a type of
release from regulation under a
particular statute may have little or no
bearing on whether a Federal response
action might be needed for a specific
release.
Examples illustrate the disparate
reasons for exemptions. For instance.
ownen or operator* of certain solid
waste disposal facilities that handle
hezardous waste only from generator!
of less than 100 kg. per month of
nonacuteiy hazardous waste (See 40
CFR 281.5) are exempt from the
requirement to obtain a hazardous
waste management facility permit under
section 3005 of RCRA. The exemption is
based-on a balancing of the
administrative burden of including such
wastes in the Subtitle C system against
the threat the Agency determined would
be posed by disposing of the wattes in
unpermitted facilities (45 FR 33066.
33102-33105 (May 19.1980)). Certain
types of hazardous waste recycling
activities—for example, the act of
reclamation of a hazardous waste or
burning a hazardous waste in a boiler or
industrial furnace to recover energy-
are exempt from regulation while EPA
determines appropriate regulatory
regimes for these activities. (See 40 CFR
281.6 and 40 CFR Part 286). Under the
CWA. electroplating facilities that
produce 1000 gallons of effluent per day
are exempted from effluent standards
because compliance is economically
infeasible for these small firms (30 FR
11510. March 28.1974). In each instance.
the release may require response action.
and the fact that the release is exempted
from the statutory requirements is not
relevant to this determination. The
Agency has determined, therefore.
releases exempted from regulation by
the statutes listed in section 101(ir) will
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Federal Register / Vol. 53. No. 138 / Tuesday. July 19. 1938 / Proposed Rules
not be considered federally permitted
release*.
Although certain releases may not
qualify as federally permitted, they may
not pose a sufficient hazard to warrant
reporting to the National Response
Center. The Administrator will consider
establishing an administrative
exemption from CERCLA notification
requirements if it appears that certain
releases pose no hazard or pose a
hazard only rarely and under
circumstances that would not likely
result in any action being taken to
respond to the hazard. However, no
such exemptions are proposed under
this regulation.
One commenter requested that a
release still be considered a federally
permitted release when there is only a
-technical" violation of permit
conditions (i.e.. where the violation
relates to operating, monitoring, or
reporting procedures and does not affect
the character or quantity of the release).
EPA agrees that notification of the
National Response Center would be
unnecessary in such a case and should
be addressed by the permit programs,
where appropriate, as a permit violation.
If the characteristic* of a release (both
the substance involved and the quantity
or concentration are in compliance with
a permit described in section 101(10).
CERCLA notification will not be
required. However, to the extent that a
release exceeds the permit limit with
regard to the quantity of a hazardous
substance, it will not be considered a
federally permitted release and
CERCLA notification will be required
when the release of the hazardous
substance exceeds its permitted level by
an RQ or more. Some Federal permit
programs do not include quantitative
limits on the amounts of specific
hazardous substances that can be
released. Accordingly, no "permitted
level" exists against which the released
quantity can be compared to determine
whether CERCLA notification is
required (i.e., whether the permitted
level has been exceeded by an RQ or
more). In such cssse, CERCLA
notification will be required when the
characteristics of the release are not in
compliance with the permit (C.B.. the
allowable concentration of a particular
constituent has been exceeded] and an
RQ or more of a hazardous substance
has been released.
Several commenters urged that
various tj^es of releases (such as all
"routine" releases or releases covered
by other permit programs) not
mentioned in section 101(10) be
considered federally permitted release.
EPA cannot support this position.
Federally permitted releases are
specifically listed in section 101(10).
This detailed list clearly indicated that
Congress did not intend releases other
than those listed In section 101(10) to be
considered federally permitted and
thereby exempt from CERCLA reporting
and liability requirements.
S. Relationship to Reporting Under Title
in
Title m of SARA (sections 301-328)
addresses emergency planning and
community right-to-know and provides.
among other »h'"g«, emergency and
annual notification requirements in
addition to those included in section 103
of CERCLA. EPA has provided (see 52
FR13377. April 22,1967; 52 FR 21152,
June 4.1087} and will continue to
provide regulations and guidance on the
Title HI requirements as necessary and
appropriate.
With respect to emergency
notification requirements, section SOT of
SARA provides release repotting
requirements that parallel the
requirements of section lOS(a) but are
intended to make release information
immediately available to State and local
emergency officials as well as Federal
response officials notified under
CERCLA section 103. In addition,
section 304(a) requires reporting of (1)
releases for which notification is
required under section 103(a) of
CERCLA. and (2) releases of "extremely
hazardous substances" that are not
hazardous substances under CERCLA
but that "occur in a manner which
would require notification under section
103(a]" of CERCLA. Federally permitted
releases, as defined by CERCLA section
101(10). are not required to be reported
under section 304 of SARA (see 52 FR
13383). To clarify the type of releases
that are defined as federally permitted
releases, and thereby exempt from
SARA section 304 reporting, today's rule
proposes to revise the applicability
section of the regulation implementing
section 304 (40 CFR 355.40(a)) to add the
definition of -federally permitted
releases" provided in this rule. Thus, the
interpretation of federally permitted
release proposed in today's rule will
define clearly the scope of the releases
reportable under SARA section 304.
With respect to annual notification of
toxic chemical releases required under
SARA section 313. however, federally
permitted releases are not exempt.
IL Elements of the Exemption
Each element of the federally
permitted release exemption is
discussed below. Relevant comments
received on the may 25.1883. NPRM
pertaining to each element also are
discussed.
Ae/eose* from Point Source* with
National Pollutant Discharge
Elimination System (NPDES) Permits.
Introduction. Section 101(10) identifies
three types of releases from point
sources with NPDES permits as
federally permitted releases:
(A) dischargee in compliance with i permit
under Mcfioe 402 of the Federal Water
Pollution Control Act. (B) dUchutts resulting
from circumstance* identified and reviewed
and made pan of tb« public record with
respect to • permit i**ued or modified under
•action 402 of the Federal Water Pollution
Control Act and tubiect to • condition of
each permit (Cl continuous or anticipated
intermittent dUcbarte* from • point MUTCC.
tdentinxj la a permit or permit application
aider section 402 of tha Federal Water
Pollution Control Act which an caiued by
events occurring within the tcope of relevant
operating or treatment •yttaou
This language is identical to that used
la section 311(a)(2) of the CWA to
exclude these releases from the term
"discharge" with respect to EPA's oil
and hazardous substances spill response
and prevention program. Furthermore.
Congress intended, in enacting CERCLA
section 101(10) (A). (B). and (C). that
EPA's interpretation of the provisions
under the CWA be continued under
CERCLA. (See S. Rep. No. 948. 96th
Cong., 2nd Sess. 47 (1980).) Reflective o.
Congressional intent, the Agency
proposes today that the interpretation
provided in the regulatory language and
the preambles to the rules implementing
the CWA section 311(a)(2) exclusions be
applied to the same exemptions under
CERCLA section lOl'lO) (A). (B). and
(Q.
The legislative history of the CWA
explains that the purpose of the section
311 exemptions wes to exclude from the
spill response provisions of section 311
three types of discharges subject to
regulation under other CWA provisions:
specifically, section 402 NPDES permits
and section 308 enforcement provisions.
Senator Stafford explained that:
• •• we are attempting to draw a line
between the provteion* of the )CWA) under
sections 301.304.402 refulatinf chronic
discharge* and 311 dealing with spill*. At the
extreme*, tt i* relatively easy to focua on the
difference but it can become complicated.
The concept can be summarized by itsting
that taoee discharges of pollutant* that a
reasonable man would conclude are
associated with permits, permit condition*.
operation of treatment technology «nd ptrmit
violation* would mult in 402/309 sanction*;
those diKharge* of pollutant* thai a
raaaonable man would conclude are episodic
or classical spUis not intended or capable of
being processed through the permitted
treatment system and outfall would nwuli in
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Federal Register / Vol. 53. No. 138 / Tuesday. July 19. 1988 / Proposed Rules 27271
the application of MctlM 311.1124
CoatmaioMl Record 37SS3 (197».)
In 1979. the Agency promulgated 40
CFR Part 117. which conuini CWA
reporting requirements for discharges of
hazardous substances (44 FR 50778.
August 29.1979). Section 11T.12 provided
a regulatory interpretation of the three
exclusions to the defintion of
"discharge" in 40 CFR Part 116 and
CWA section 311(a)(2). and the
preamble to the rule provided a detailed
explanation of the three types of
excluded discharges. In 1967. EPA
amended the definition of "discharge" in
40 CFR Part 110, the discharge of oU
regulation, to codify the same three
CWA exclusions (52 FR 10712, April 2.
1967). The preamble to the oil discharge
rule adopted the description of the three
exclusions from the 1979 preamble to 40
CFR Part 117.
In today's rule, the Agency proposes
to apply the existing interpretation of
the three types of discharges that are
excluded from coverage under CWA
section 311 to the first three types of
discharges under CERCLA section
101(10). Thus, this interpretation will
apply to the following regulatory
provisions: 40 CFR 110,1.116.3.117.12.
300.5.302J. and 335.40. The Agency.
however, also is proposing to make two
clarifying amendments to 40 CFR 117.12,
as explained below, that also will be
aplicable to the corresponding
exemptions under 40 CFR Parts 110.116.
300. 302. and 355.
In the paragraphs that follow, the
three types of NPDES discharges that
correspond to the federally permitted
releases in CERCLA sections 101(10)
(A). (B). and (C) are described. For
simplicity, these discharges will be
referred to as Type A. B. and C.
respectively.
Type A Discharges. Type A
discharges are those that are in.
compliance with an NPDES permit limit
that specifically addreses the discharge
in question. To qualify as a Type A
discharge, the permit must cither
address the discharge directly through
specific effluent limitations or through
the use of indicator pollutants. In the
case of the latter, the administrative
record prepared during permit
development must identify specifically
the discharge of the pollutant as one of
those pollutants the indicator is
intended to represent
Type B Discharges. Type B discharge*
are foreseeable (U- identified in the
NPDES permit's development record)
and flow into a facility's effluent
treatment system designed to treat the
discharge. This second type of discharge
is limited to on-site spills to the
permitted treatment system that were
identified and considered in the
issuance of the permit but are not
subject to any specific effluent
limitations. Discharges are included only
where (1) the source, nature, and
amount of a potential discharge were
identified and made part of the public
record, and (2) the permit contained a
condition requiring that the treatment
system be capable of eliminating or
abating the potential discharge.
Therefore, if an on-site spill was
processed through a treatment system
capable of •Uminattng or abating the
spill and the spill is subject to a permit
condition, a discharge resulting from the
on-site spill would be subject to CWA
sections 402 and 309 and would be a
federally permitted release. If an on-eite
spill is not passed through a treatment
system or is not otherwise treated in any
way. the discharge resulting from the
on-site spill is subject to CWA section
311 and is not a federally permitted
release. Also, discharges that result from
on-site spills that are passed through
treatment systems (1) that have not been
demonstrated as capable of eliminating
or abating the discharge or (2) for which
no permit condition exists are subject to
CWA section 311 and are not federally
permitted releases under CERCLA.
A "permit condition" would include
the existence of a treatment system or
release prevention plans and other best
management practices designed to
address the discharge. Best management
practices are operating methods or
procedures to prevent or minimize the
potential for the discharge of toxic or
hazardous substances from processes
ancillary to the industrial manufacturing
or treatment process. For example, a
discharger has a drainage system that
will route spilled material from a broken
hose connection to a holding tank or
basin for subsequent treatment or
discharge at a specified rate. To be
eligible as a Type B discharge, the
discharger must identify specifically
such a system in the permit application.
The permit condition discussed in the
application must be sufficient to treat
the maximum potential spill from the
identified source. Discharges that result
from aa on-site spill larger and more
concentrated than the spill
contemplated in the public record, and
for which a condition was provided in
the permit will be subject to CWA
section 311 and CERCLA notification
and liability provisions (Le~ the
discharge will not be a federally
permitted release).
Today's rule proposes to amend 40
CFR 117.12(c) by deleting the phrase
"whether or not the discharge is in
compliance with the permit." for Type B
discharges, to avoid confusion caused A
by the phrase. The phrase was originally
included in the rule because Type B
discharges are discharges that*result
from circumstances identified and
considered in the issuance of a permit
but that are not subject to any specific
effluent limitations. The Agency is
concerned that the phrase may b*
interpreted incorrectly to mean that
Type B could refer to discharges in
which the permittee did not satisfy the
condition placed in the permit Because
the Agency believes that the phrase
causes confusion, the Agency propose*
to delete the phrase from the regulation.
The Agency solicits comments on this
proposed revision to 40 CFR 117.l2(c).
T^pe C Discharges. Type C discharge!
are from a point source and are (1)
continuous or anticipated intermittent
discharges. (2) identified in a permit or
permit application, and (3) caused by
events occurring within the scope of tfca
relevant operating and treatment
systems. Included within the scope of
this provision are chronic, process-
related discharges resulting from
periodic upsets in the manufacturing
and treatment systems, for example^ the
discharge created by a system
backwash. Discharges caused by spills
or episodic events that release
hazardous substances to the
manufacturing or treatment systems are
not Type C discharges. The language of
40 CFR 117.12(d) provides further
examples of discharges that fit within
the category: (1) Provided that an on-site
spill is not the cause, contamination of
noncontact cooling water or storm
water. (2) on upset or failure of a
treatment system or of a process
producing a continuous or anticipated
intermittent discharge: or (3) where thfc
discharge originates in the
manufacturing or tre&tment systems, a
continuous or anticipated discharge of
process waste water.
Amendment to 40 CFR 117.12. With
respect to Type C discharges, the
Agency also is proposing in today's rule
to amend 40 CFR ll7.12(d)(:)(iii) by
deleting the term "operator error" from
the description of "an upset or failure of
a treatment system." * The reasons for
•Soctton ur.iSdNHHI) ptwtMiy
(tii) An opitt or foilm W • BMtmtnt iy»iMO or
of* proem product* • eoetuiMOW or uioapaMd
taMrmjttMi dwchwt* •*•*• *• ""*•' <*f>Uurc
rwtilu inn • ceatroi problem. •* optnior «rro».»
tytttm UUun or miltuacttoo. «n «quipm«ni
MMM Mama or riMtdowa. a« fMipiatet
a prod action Mtedul* rlnr^i provided I>MI Midi
UOMI or ftilur* M not cxiMd by MI on-tut »aill of •
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27272
Federal Register / VoL 53. No. 138 / Toetdey. |ujy ifl. me / propoxd Roles
.the proposal to eliminate the tenn
roperater Brer" ere (t) Tin use of the
tarn "operetor error- ia describing an
upset to inconsistent with tfat NPDES
regulations (40 CFR 122.41) that provide
that a discharge ceased by an open tor
error is not an upset end f2) the Agency
believee that dltcherges caused by
operator error are not Ukciy to be
"continuous or anticipated intermittent
discharges," as provided by the-
•tatutory language. The Agency expects
nisfhayges caused by operator error to
be episodic and unpredictabk. as
compared to discharges ceased by
system startups aad shutdowns. The
proposed deletion of the tecs "operator
error" is intended to enhance the darity
and consistency of the regulatory
language and is not meanl to signal a
change in policy. It is possible that
under some circumstances an operator
error may cause a failure of a treatment
system or process, and produce a
continuous or anticipated intermittent
discharge. Such e discharge may meet
the requirements fore federally
permitted rejeese. The term "apsef* as
used in 40 CFR Part 117, however.
generally will be interpreted to be
consistent with the term "upset" in 40
CFR Part 122. Le. it does-not inehide
•pdents censed by operational error.
rhe Agency requests comments on its
proposal to delete operator error from 40
CFR 117.12(d)(2Kiii).
Conclusion. Under both CWA section
311 and CERCLA, any discharge or
release of a hazardous substance that is
not federally permitted, as described
above, must be reported immediately to
the National Response Center if it
exceeds permit limits by an RQ or more;
if the hazardous substance discharge or
release is not subject to a numerical
permit limit, any discharge or release
that triggers a permit violation and
equals or exceeds an RQ must be
reported immediately. Similarly, under
40 CFR Part 110, any oil discharge that
exceeds permitted levels aad causes an
oil sheen must be reported immediately.
Discharges excluded fan CWA
section 311 coverage end defined as
federally permitted releases under
CERCLA sections 101(10) (A). (B), and
(C) are subject to the CWA section 300
enforcement provision that provides
EPA with the enthority to issue
compliance orders, bring civil actions.
and impose criminal and civil penalties.
In addition, under CWA section
311(b)(fl|(D). if the Federal government
Eany costs of removal of
irges excluded by section
. .[2){Q, the Federal government can
bring a civil action under the authority
provided by CWA section 309(b) to
recover such removal costs.
Furthermore, under CERCLA section
107TJ). the response oasts incurred by the
Federal government in connection with
the federally permitted release* defined
by section 101(10) (B) and (Q can be
recovered thrash a civil action brought
raider the authority of CWA section
Finally, all three exemptions raise the
issue of timeliness of notification. The
reporting requirements for releases
exempted from CERCLA reporting, and
liability under section 101(10} (A). (B).
aad (Q and excluded from CWA section
SlUaXZ) are subject to the * hour
notification requirements nder CWA
section 40Z The Agency acknowledges
that Congress ~^y><«-^ that the 24-
hour reporting requirement may "create
gaps in action necessary to protect the
public or the environment." (See S. Rep.
No/848, ttth Pang. 2nd Sees. 47 (19BO).)
The legislative history of section 101(10)
suggests diet the Agency could resotve
this issue by amending the CWA seclioo
402 teyurtuig regulation to require that
those) releases excluded from CWA
section 3U coverage and exempt from
CERCLA reporting requirements be
subject to an immediate notification
requirement under the CWA section 402
NPDES regulations. (Ibid.) The Agency
has not vet amended the NPDES
regulations to require immediate
notification of those releases exempt
from section 311 and CERCLA. Before
the Agency proposes to amend the CWA
sectin 402 NPDES regulations (40 CFR
Part 122) to revise the 24-hour
notification requirement to an
immediate notification requirement for
the exempted releases, the Agency
solicits comments on the "reporting
gap." particularly examples of situations
where the 24-hour notice was not
sufficient to protect human health and
the environment
Ae/eoset Subjtct to CWA Section 404
Pvmitt, Discharges that comply with a
legally enforceable permit for dredge or
fill materials under section 404 of the
CWA also are federally permitted
releases exempted from the notification
requirements of CERCLA sections 103(a)
and I03(b). Before issuing these permits,
the government reviews the substances
to be discharged. Permits allowing the
discharge of hazardous substances are
issued only if no significant degradation
of the aquatic environment win result
This exemption applies to discharges in
compliance with the terms and
conditions of either aa individual or a
general CWA section 404 permit.
la regulations tT*aT"**<^nB section
aro
311 of the CWA for h
substances, 40 CFR 117.12 (but not the
regulations for oil In 40 CFR Pert 110).
^PA exempted from the notification
requirement not only those releases that
were ia compliance with section 404
permits, hot also those releases that
were exempt from permit requirement*
under section. 404- of the CWA (sections
404(0 end 404(r)). These latter releases
ere not "federally permitted release*"
for purposes of CERCLA becsuse
section 101(10KD) is limited to releases
io compliance with a legally enforceable
permit under section 404 of the CWA.
The Agency interprets the CERCLA
notification requirements to t**">r1 only
those releases whose environmental and
health effects have been evaluated aad
determined to be allowable under the
appropriate permit program.
Jte/soses from Fociliti** with Final
RCRA PvmiU. Releases in comptiaaec
with a legally enforceable RCRA
treatment, storage, or disposal final
permit are. pursuant to CERCLA section
lOl(lOKE). federally permitted releases
when the hazardous tebstancea
released are specified in the pen&tt aad.
subject under the permit to a specific
limitation, standard, or control
procedure (see 40 CFR Parts 254 aad
270). Identifying releases on the record
during the permit process is iasoffident
to qualify them for the section lOl(lOKE)
exemption because, m order to be
exempt the substances most be
specified in the permit and subject to
some permit condition or control.
Four commenters requested that
facilities with interim status pursuant to
section 3005{e) of RCRA end 40 CFR
Part 2S5 be included in the "federally
permitted release" definition. Some of
the commenters indicated that it may be
some time before these facilities are
issued final permits. The legislative
history specifically rejects application of
this exclusion to releases from facilities
with interim status (S. Rep. No. 540, 96th
Con*. 2nd Sees. 48 (1980)).
Release* Punuant to Marine
Protection, Aesea/e/r. and Sanctaaric*
Act Pfrmitt. Section 101(10)(F) of
CERCLA includes, in the definition of s
federally permitted release, releases in
compliance with legally enforceable
permits issued «?««<•> section 1W7 (EPA
ocean dumping permits) or section 103
(Corps of Engineers permits for ocean
dumping of dredged materials) of the
Marine Protection. Research, aad
Sanctuaries Act Pursuant to EPA
regulations, applicants for ocean
dumping permits must identify the
physical end chemical properties of the
materials to be discharged, aad the
permit must identify the materials that
may be discharged (see 40 CFR Parts 221
end 227). Sirailsr procedures and criteria
-------
Federal Register / Vol. 53. No. 138 / Tuesday. July 19. 1088 / Proposed Rules
apply to ptrmiti for ocean dumping of
dredged material (see 33 CFR Part 324).
Tb«M EPA tad Corps of Engineer*
permits covtr substances that can b«
discharged lawfully. Dumping of
hazardous substances not specifically.
allowed in these permits is subject to
the notification requirements of
CERCLA section 103{a) because
emergency response officials should be
made aware of releases not evaluated
previously by a permit program for
health and environmental effects.
Underground Infections Authorized
Punuant to the Safe Drinking Water
Act. CERCLA section lOl(lOHG)
exempts from the notification
requirements "any injection of fluids"
authorized under Federal injection
control programs or State programs
submitted for Federal approval pursuant
to Part C of the Safe Drinking Water Act
(and not disapproved by EPA).
EPA has published regulations
establishing technical standards and
criteria (40 CFR Part 146) and
regulations governing approval of State
programs and permit procedures (40
CFR Parts 122-124). Under the Safe
Drinking Water Act the States are to
take the primary role in implementing
the underground injection control
program: EPA is to administer the
program only if the State fails to submit
an approvable program within a
specified time period. Any underground
injection of hazardous substances
permitted under a State program that
has been approved, or submitted and
not disapproved by EPA. or permitted
under an EPA-administercd program, is
considered federally permitted for
purposes of CERCLA notification.
Emissions Subject to Clean Air Act
Controls. Section 101(10)(H) of CERCLA
provides an exemption for hazardous
substance emissions that are subject to
a Clean Air Act (CAA) pern it or control
regulation (see 40 CFR Parts 52. 60. 61.
and 62). However, as stated in the
preamble to the May 25,1983 NPRM. for
this exemption to apply, any such CAA
controls-must be "specifically designed
to limit or eliminate emissions of a
designated hazardous pollutant or a
criteria pollutant" (See S. Rep. No. 648.
9C!h Cong, 2nd Sesa. 49 (1900)). The
CAA exemption, therefore, cannot be
read broadly to cover any and all types
of air emissions. Moreover, as today's
proposed rule makes clear, for the
exemption to apply, the emission muat
be in compliance with the applicable
permit or control regulation.
Several commenters suggested that
the clear and unequivocal nature of the
statutory language made elaboration on
the CAA exemption unnecessary.
Generally, these commenters took the
view that the CAA exemption coven
nearly all air emissions because such
emissions are in one way or another
controlled by the CAA—either directly
because they contain substances
specifically regulated by the CAA. or
indirectly, for example, through
emission limitations established as part
of State Implementation Plans (SIP*)
approved under section 110 of the CAA.
Some commeaten even claimed that
because controls could be developed for
any hazardous substance, any release to
the air is "subject" to CAA controls.
EPA does not agree that the broadest
interpretations, under which virtually all
air emissions Including dangerous
episodic releases would be exempt from
CERCLA reporting requirements, could
have been intended by Congress under
section 101(10). Moreover, the
exemption for "federally permitted
releases" under CERCLA section 101(10)
also applies to reporting of air releases
to State and local governments under
Title m of SARA. Title EL which is the
Emergency Planning and Community
Right-to-Know Act of I960, was enacted
in large pan as a response to dangers
posed by chemical air releases to
surrounding communities, such as the
catastrophic release of methyl
isocyanate in Bhopal. India. Because
Title in was intended to address
particularly the dangers of air releases.
interpreting the exclusion for federally
permitted releases so that accidental air
releases would not be reported locally
would be directly contrary to the
legislative purpose. Similarly, the
purpose of notification requirements
under section 103 of "CERCLA is to
ensure that the government is informed
of any potentially dangerous releases of
hazardous substances to the
environment for which timely response
may be necessary. Establishing a very
broad interpretation of CAA controls, as
requested by the commenters. could
tliminate virtually any CERCLA
reporting of air emissions and. thus, the
potential for early Federal responses;
such an approach would eviscerate not
only the Congressional intent but also
the major purpose of the section 103
notification requirement
In addition, some commenters urged
EPA to interpret the federally permitted
release exemption to include any air
emission from a permitted source. Some
of the commenters used the word
"reviewed" almost interchangeably with
the word "permitted." A "reviewed"
release is not necessarily a "permitted"
release or a 'controlled release. A
permitted release is an allowable
release of a specific substance or
emission. A reviewed release generally
may be one of many nieises from a
permitted source that is being checked
for compliance with a variety of laws
and regulations. The inclusion of a
pollutant is a SIP review provision is «rt
equivalent to subjecting the pollutant to
CAA requirements or controls "designed
specifically to limit or eliminate'* the
pollutant (See S. Rep. No. 648. 96th
Cong. 2nd Sess. 49 (i960)). A reviewed
release, therefore, is not necessarily •
federally permitted release.
Several commenters stated that the
air release exemption should apply
broadly to substances such as volatile
organic compounds (VOCJor total
suspended particulates (TSP) regulated
under the CAA P"gM
-------
27274
Federal Regbter / VoL 53. No. 138 / Tuesday. )nfr 19. 1986 / Proposed Rulea
the applicable permit or coatrol
program. One* the coMtitutot
identified tad reviewed appropriately,
the limitation oa the category of
missions of h«TJN'mt substances
would provide the "permit or control
regulation" needed for application of the
section 101(10}(H} exemption. A specific
issue OB which the Agency solicits
coBuneau is the indiuioa of negative
determinations under the CAA section
112 program in the exemption.
The second approach would interpret
broadly tha regulatory program*
governing pollutants for which a
National Ambiant Air Quality Standard
(NAAQS) has been eatahiisheri under
CAA Motion 108. These programs are
developed under CAA Motion 111 New
Source Performance Standards (NSPS)
or CAA Mction 110 State
Implementation Plans (SIP*). Under this
approach. EPA would diftt"gv'«t»
between amiMioni of hazardous
eubstances that are VOCs aod regulated
as precursors of ozone, and constituents
of the other NAAQS pollutants. For
example, emissions of constituent* of
particulate matter would be considered
"subject to a permit or coatrol
regulation" and. therefore, exempt from
notification requirements. Emissions of
individual VOCs. however, would not be
considered subject to permit or control
regulations solely because they are
indirectly controlled by regulations
limiting total VOC emissions. These
emissions of individual VOCs in
amounts equal to or in excess of an RQ.
consequently, would be subject to
notification requirements.
This approach is based on the
recognition that for five of the present
NAAQS (sulfur dioxide, particulate
matter, nitrogen oxides, lead, and
carbon monoxide) the standards in each
case are based on the evidence of health
effects of those emissions. In contrast.
emissions of VOCs an regulated baaed
on their reactivity and consequent
contribution to the creation of ambient
ozone levels for which NAAQS have
been sat In setting the ozoae NAAQS or
establishing emission limitations for
VOCs. no consideration was given to
any direct health effects of ambient
concentrations of total or any
constituent VOC As a result
interpreting VOC emission limitations to
subsume consideration of the possible
health effects of constituents appears to
be inappropriate. Using this
interpretation, a substance would be
considered federally permitted if it is a
constituent of. aod. therefore, limited by
regulations or standards for. any of the
five pollutants enumerated above, bat
not If it is limited by standards for
VOCs.
Reportable quantities for the purpose
of reieew notification requirements are
established to ensure appropriate
response to episodic releases of
hazardous substances that have
potential adverse health and
environmental effects. A large release of
an individual VOC in a quantity equal to
or ia excess of an RQ may be within,
total VOC emission limits and may
make a negligible contribution to ozone
formation, which is affected by
•nrf {Jj0
sources. Such a release may.
nonetheless, potentially endanger
twif««fl health because of tb* ttnticity of
the individual substance.
For example, under CAA section 111.
EPA established controls on the rubber
tire manufacturing industry limiting
VOC •««»•««•«• for a medhiiB-eized
pleat to approximately 400 tons per
year, or about 1.1 tone per day.
Predominant VOCs emitted in the
manufacturing process are white
gasoline and petroleum neptha. Toluene.
xylene, ketones, and esters are also
used throughout the industry. (48 FR
2878. September IS. 1983.) A release OB
one day of an RQ or more of one of
these VOC constituents, such as 1000
pounds of toluene, although within the
total VOC release limit of approximately
1 ton per day may pose a threat to
human health or the environment
because the total VOC limitation is
based on controlling the formation of
ozone, and not on the toxicity of toluene
or another of the VOC emission
constituents. The Agency would take the
position that interpreting NSPS or SIP
VOC emission limitations to subsume
consideration of the possible health
effects of such VOC constituents, and
thereby exempt them from notification
requirements, is inappropriate. Thus,
EPA would require notification of
releases of VOC constituents in amounts
equivalent to or greater than an RQ
under tha second approach.
As a third option. EPA could interpret
the CAA federally permitted release
exclusion to apply only to releases that
art subject to a CAA permit or control
regulation and that are either the
"routine" cmisaiomvfor which the permit
or control regulation was designed or in
compliance with a specific standard for
release of that substance specified in the
permit or regulation. Unpermitted.
aonroutine releases would include
apsets from such devices as pressure
release valves, storage tank reactor
vessels, or sudden releases from valve
and pine ruptures, equipment failure.
and emergency startups and sasitdown/
EPA requests comments on ifeeee
alternatives for defining the scope of the
air retain exemption. Specifically. EPA
requests coBosnts distinguishing
releases of ozone precursors (VOC)
constituents from releases of
constituents of other categorical
pollutants controlled by NAAQS. EPA
mimf\ ig soliciting *«"*»•''• on the
"routine ve. *uinuvuUiiS ojsnncnoit
and the need to define "routine* in
terms fo specific emission points or
Tmin"M atw^ solicits comments on
what emission points soovid be
included, m addition. EPA is uiu
med
that the first approach may leed to
uveiiapwuug of routine reiecees subject
to adequate control under existing
iisiilsliiij or permit limits that eoald
divert resources from release* requiring
immediate response. EPA soiidH
information on the mimberaf factttnea
and types of releases that would require
reporting under these approaches, and
the types of releases that wodd be
excluded under either approach.
particularly with respect to any
potentially dangerous releases that may
be excluded.
In addition, the National Emission
Standards for Hazardous Air Pollutants
(NESHAPs) limits for radionudidee are
health-based annual limits, whereas
radionuclide RQs are reporting triggers
based on 24-hour releases. The Agency
will require a report if an RQ above any
annual NESHAP limit is released in a
24-hour period. The Agency requests
comments on the number of facilities
and types of releases that msy require
reporting.1
Injection of Materials Related to
Development of Crude Oil or Natural
CaxSuppliet. The injection of materials
related to the production of crude oil.
natural gas. or water is considered a
federally permitted release if the
injection material is authorized
specifically under applicable State lew.
Because it is probable that aD
conceivable injection modes are not
considered in State laws. EPA. in the
preamble to the May 25. 1983 NPRM.
interpreted the section 101(10)(I)
provision to exempt only those activities
or materials that are authorized
of tfct Swl mtt «*wtta| tte «Q for
(!• te pMMMd t> nan *t AiMner
a Amty*f rt»»
, lewwUMi
ammm>rr cauMd by tht mmd mtioMtMt RQ
. Thi» doeuiMnt n «»«ti*bi«
aorn L&-MD. US.
• AS—CT. 401 M !»••<.
SW. WHteeiM. OC aB*SO IDMMt I
-------
Federal Rayutar / VoL S3, No. 1M / Tuesday. July 19. 1968 / Propoied Rules
specifically by State law. rather than
UMM that are not prohibited by State
law. This interpretation ensures that the
appropriate authorities have conadouily
considered and intentionally authorized
the infection activities and materials
that are to be exempt from notification
requirements and that the National
Response Center will be made aware
immediately of the potential need to
respond to releaaes that have not been
evaluated previously by a permitting
authority.
EPA interprets the section 101(10)(T)
exemption to apply only to those
materials specifically authorized by
State law to be used in activities whose
sole purpose is the production of crude
oil. natural gas. or water the recovery of
crude oil or natural gar or the
reinfection of fluids brought to the
surface from such production. Some
commenters objected to this
interpretation and instead supported a
broader interpretation that would
exempt from CERCLA notification all
materials used in gas and oil field
operations. The National Response
Center must be notified in any situation
involving the use of injection fluids or
materials thst are not authorized
specifically by State law for purposes of
the development of crude oil or natural
gas supplies and resulting in a release of
a hazardous substance in an amount
that equals or exceeds the applicable
RQ. This will allow an immediate
evaluation of the need for a response.
Introduction of Pollutants into
Publicly Owned Treatment Works. A
release to a Publicly Owned Treatment
Works (POTW) is subject to the
federally permitted release exemption if
the release is (1) in compliance with
applicable categorical pretreatment
standards and local limits developed in
accordance with 40 CFR 403J(c), and (2)
into a POTW with an approved, local
pretreatment program or a i 403.10(e)
State-administered local program. One
of the commenters on the May 25, 1983
NPRM suggested that the Agency
broaden its approach to the POTW
exemption to provide that the discharge
be in compliance only with general
pretreatment requirements and not with
site-specific requirements. The Agency
believes that for POTW to be
considered "federally permitted." not
only must the hazardous substance be a
pollutant specified in applicable
pretreatment standards and the release
of the pollutant be in compliance with
the categorical pretreatment standards.
but the release also must be in
compliance with the local limits
developed on the basis of the site-
specific conditions, because the
categorical standards alone may not be
adequate to address jhe impect of
pollutants on the POTW. Therefore.
even though a release into s POTW is in
compliance with the categorical
pretreatment standards, the National
Response Center must be notified if the
release exceeds the local limits by an
RQ or more, because the release may
cause interference with the POTWs
processes or may pass through the
POTW to the navigable waters, either of
which may result in a situation requiring
an emergency response. This exemption
applies only to industrial users *
discharging to POTWr a POTW is
•object to CERCLA reporting and
liability provisions if its discharge of a
hazardous substance violates iU NPDES
permit by an RQ or more. POTWs are
not required to report hazardous
substances that are traveling through
their collection systems in quantities
that equal or exceed RQs: however, the
industrial user is responsible for
reporting such release* into the
collection system.
Sections 307(b)(l) and (c) of the CWA
direct EPA to establish pretreetment
standards "to prevent the discharge of
any pollutant through treatment works
* * * which are publicly owned, which
poQutant interferes with, passes
through, or is otherwise incompatible
with such works." These sections
address the problems created by
discharges of pollutants from
nondomestic sources to municipal
sewage treatment works that interfere
with the POTW or pass through the
POTW to navigable waters untreated or
inadequately treated. Pretreatment
standards are intended to prevent those
problems from occurring by requiring •
nondomestic users of POTWs to pretreat
their wastes before discharging them to
the POTW. In 1977. Congress amended
section 402(b)(8) of the CWA to require
' POTWs to help regulate their industrial
users by establishing local programs to
ensure that industrial users comply with
pretreatment standards.
In establishing the national
pretreatment program to achieve these
pretreatment goals, the Agency adopted
a broad-based regulatory approach that
implements the statutory prohibitions
against pass through and interference at
two basic levels. The first is through the
promulgation of national categorical
standards that apply to certain
industrial uses within selected
categories of industries that commonly
discharge toxic pollutants. Categorical
standards establish numerical
technology-based discharge limits
derived from an assessment of the
and amounts of pollutant discharge
that typically interfere with or pass
through POTWs with secondary
treatment facilities.
The potential for many pass through
or interference problems depends not
only on the nature of the discharge but
also on local conditions (14. the type of
treatment process used by the POTW.
local water quality, POTWs chosen
method for t««nXim» sludge L mn^ thus
man." tt Ow um to «M4 ta (ha*
kUtfdOU* MfcMMCM IO« WTW.
needs to be sddressed on a rsee- by-case
basis. Examples of such problems
include discharges to a POTW that may
consist of pollutants not covered by a
categorical standard or from
nondomestic sources that are not in one
of the industrial categories regulated by
the categorical standards. Because
categorical standards are established
industry-wide, they cannot consider
site-specific conditions and therefore
may not be adequate to prevent all pass
through and interference even for the
regulated pollutants. EPA's General
Pretreatment Regulations (40 CFR Part
403) address these areas of concern.
First 40 CFR 403J(b) establishes
specific prohibitions that apply to all
nondomestic users and are designed torn
guard against common types of poUuuH
discharges that may result in
interference and pass through (e-g_ no
discharge of flammable, explosive. JH*
corrosive pollutants). Second. 40 CFR
403J(s) establishes a general
prohibition against pass through and
interference that serves as s backup
standard to address localized problems
that occur. In addition. POTWs must
develop and enforce specific local limits
as part of their local pretraatment
programs to prevent pass through and
interference. POTWs not required to
develop pretreatment programs also
must develop local limits if they have
recurring pass through and interference
(se«40CFR405J(c)).
The pretreatment standards a POTW
user must meet to claim the federally
permitted release exemption include
both applicable national categorical
standards and standards established by
local law as described below.
Compliance only with the general and
specific prohibitions (40 CFR 403J(a)
and (b)J of the general pretreatment
regulations is insufficient to qualify a
release as federally permitted.
Only local limits applicable to the
pollutant, developed in accordance with
40 CFR 403 J(c). and designed to
implement the general prohibition
against interference and pass through
(1 403 J(a)), can qualify the release of
such pollutant as a federally permitted
-------
relLVi.
Fedaral Regitet / Vol 53. No. 138 / Tuesday. luly 19. 1988 / Proposed Rules
i. The development of local limit*
under 40 CFR 408.5(c) involves thne
basic steps. First a POTW must
determine which, if any, of the
pollutants discharged by its industrial
users have a reasonable potential to
pass through or interfere with the
POTW. For each of the pollutants the
POTW concludes may be of concern, the
POTW most then determine the
maximum amount of the pollutant it can
accept (maximum headworks loading)
and still prevent the occurrence of pass
through or interference. Finally, after
m"imnm allowable headworks
loadings ere determined for each of the
pollutants of concern, the POTW must
implement a system of local limits
applicable to industrial users to assure
that these loadings will not be exceeded,
EPA believes that only local limits
that have been developed based upon
procedures that evaluate the site-
specific characteristics and treatment
capabilities of a POTW should qualify
the release of the pollutant for the
exemption. Such an extensive analysis
is needed to assure that pass through
and interference problems do not arise.
A discharge of s pollutant by an
al user in compliance with a
it not designed using these
ures may not address the
statutory prohibitions against pass
through and interference or provide the
requisite degree of environmental
protection to qualify for the federally
permitted release exemption.
Thus, a release that exceeds by an RQ
or more an applicable categorical
pretreatment standard or a local limit
developed in accordance with 40 CFR
403.5(c) must be reported. Moreover, the
absence of a categorical pretreatment
standard or a local limit for a specific
pollutant precludes coverage for
releases of that pollutant under the
federally permitted release exemption. If
an industrial user releases an RQ or
more of a hazardous substance into a
POTW that has not set a local limit for
such a substance. atJot which there is
no limit based on a categorical standard.
then the release is not federally
permitted and is subject to CERCLA
reporting and liability provisions.
Furthermore, the release of a pollutant
to a POTW only would qualify for the
federally permitted release exemption if
(1) the POTW has a local pretreatment
program approved by the "approved '
authority" (as defined in 1 40&3(c)). or
State, in lieu of the municipality, is
a pretreatment program
t POTW pursuant to 40 CFR
403.10{e).
Section 101(10)(J) provides that the
pretreatment program must be
"submitted by a State or municipality
for Federal approval'* The Agency
interprets this provision to mean that
the program not only must be submitted
for approval but must be approved. A
strict reading of the statutory language
would be contrary to the expressed
congressional intent that discharges of
hazardous substances into sewer
systems qualify as federally permitted
releases only if they are authorized
under a pretreatment program (S. Rep.
No,8U. 90th Cong. 2nd Seas. 48 (1960)).
Tie fact that a POTW has submitted a
program for approval does not
necessarily mean the program is
adequate to control the introduction of
pollutants from nondomestic users of the
POTW. Such a program may not be
approved by the approval authority due
to major deficiencies. For the discharge
to be a federally permitted release.
therefore, it must be specifically
regulated in an approved program, a
program that the appro val,authority has
determined is consistent with the
federally mandated minimum standard.
An approved program may be (1)
designed and implemented locally by a
POTW and approved by either EPA or
an EPA-approved State pretreatment
program, or (2) designed and
implemented by an EPA-approved State
pretreatment program, EPA approval of
a State pretreatment program pursuant
to section 402(b) of the CWA would not
automatically qualify a release to a
POTW in that State as federally
permitted. The local pretreatment
program must be approved either by
EPA or by an EPA-approved State
program. Generally. EPA approval of a
State pretreatment program merely
changes the approval authority for the
POTW programs from EPA to the EPA-
approved State pretreatment program.
The approved State has primary
responsibility for requiring local POTWs
to develop and implement a
pretreatment program to regulate users
directly. The fact that a State
pretreatment program has been
approved by EPA does not in and of
itself change the quality or approvability
of local POTW programs. POTWs in
approved States would still need to
develop local pretreatment programs
and receive pretreatment program
approval if they have not done so
already. Thus, to satisfy the federally
permitted release exemption, individual
approval of each POTW pretreatment
program is necessary (except for a State
administered 1403.lO(e} program-as
described-below).
Section 403.10(t) allows the Slats in
lieu of the POTW to assume
responsibility for developing and
implementing POTW pretreatment
program requirements. Because the
i 40a.lO(e) program must meet the same
standard as would be required for
pretreatment programs developed by a
municipality (| 403J(f)). EPA believei
that the i 403.10(e) programs are the
State pretreatment programs Congress
intended to include under section
101(10)0).
In the event that a State's { 403.10(e)
program does not extend to all its
POTWs. only those releases to POTWi
for which the State has implemented the
pretreatment program pursuant to
140J.lO(e) would qualify as federally
permitted. If a POTW is not regulated
direcdy by its State NPCES program, the
POTW nevertheless must implement an
approved local pretreatment program in
order for the discharges of industrial
users to Qualify for the federally
permitted release exemption.
In summary, for a release to a POTW
to be subject to the federally permitted
release exemption, the release must be:
(1) In compliance with applicable
categorical pretreatment standards and
local limits developed in accordance
with 40 CFR 403J(c), and (2) into a
POTW with an approved local
pretreatment program or a 40 CFR
403.io(e) State administered local
program.
One of the commanters on the May 25.
1983 NPRM stated that discharges into a
POTW are transfers between facilities.
not "into the environment" snd
therefore ell discharges into POTWs
should be exempt from CERCLA
reporting. The commenter's approach to
defining "into the environment" is not
consistent with the approach in today's
proposal. To determine whether its
release is federally permitted, therefore.
an industrial user should mesiurt its
discharge at the point the substance
leaves the industrial user's facility. In
the case of indirect dischargers, the
release should be measured when it
leaves the discharger's building. Mobile
sources should measure the discharge at
the point it is released into the POTW.
which will be at the headworks in most
cases. Industrial users are not required
under CERCLA to conduct monitoring
activities different from those required
by the applicable pretreatment program.
to/ease* e/Source. Byproduct, or
Special NueJtor Matt rial.
Radioauclides (which include source.
byproduct and special nuclear material)
are listed generically under section 112
of the CAA and are therefore considered
hazardous substances under CERCLA.
CERCLA section 101(22)(CX however.
excludes from the definition of "release"
the discharge oft
eoura. byproduct, or tpedsl tractor material
from • nudes: incident, is thost terms arc
-------
Federal Register / Vol S3. No. 138 / Tuesday. July 19. 1988 / Proposed Rules
defined la the Atomic Energy Act of lift*. If
Mch rekaae ia subject to requireaMnts with
respect to ""nr**1 protection established by
tfa« Nacieer Regulatory Comtnitiica under
section 170 of neb Act or. for tht purpotn
of Mctioa iM of this till* or aay othtr
raeponat action any releeae of Moree,
byproduct, or (pedal nuclaer material from
•ny proceMuuj lite dnieoated und«rMctioa
108a)(l) or 902
-------
Fadsjral Register / Vol S3. No. 138 / Tuesday. July 19. U88 / Proposed Rule*
eases not subject to or in compliance
with applicable permits, regulations, or
order*, en esseatiaJ to mitigate the risk
to public haalth or welfare or the
environment posed by sucfa releases.
m. Notification for Certain Type* of
Releases
A. In General
Tbii section addresses several
recurring questions not related
specifically to the definition of
-federally permitted release" but that
arise under the CERCLA section 103(a)
reportinf requirements. One such
question involves releases to engineered
structures designed specifically to
prevent materials from reaching the land
surface. The issues involve both
interpretation of the phrase "release into
the environment" and the
appropriateness of CERCLA notification
requirements for releases to such
secondary containment devices. The
Agency solicits comment* on the
following issues.
In the preamble to the April 4.1985
final rule adjusting RQs for 340 CERCLA
hazardous substance. EPA slated:
m Hacardoti* subtunce* may be released
pnto the environment" even if they mania
on plant or installation grounds. Example* of
•ucb rektaae* «r« tpill* from tank* or valve*
onto concrete pads or into dltcht* open to the
outsid* lid. releases from pipe* into open
lagoon* or ponds, or any other discharge*
that srt not wholly contained within
buildint* or structure*. Such • nice**, if it
occurs in • importable quantity (e.g.
evaporation of «n RQ into the air from i dike
or concrete pad). Bust be reported under
CERCLA. On the other hand. hazardous
•iibtu.nces may be spilled at a plant or
uuiullation but not enter the environment
e.g.. whrn the subttsnc* *pill* onto the
concrete floor of an enclosed manufacturing
plant Such * »piU would need to be reported
only If the substance* were in tome way to
leave the building or ttructure in a reponabie
quantity. (Note, however, that the federal
government nay (till respond and recover
ooets where then is a threatened release into
the environment) SO FR19402.
In applying the phras* "ifito toe
environment" to releases to secondary
containment devices. EPA believes thut
e release inside a building or structure is
not a release "into the environment"
unless the spilled substance leaves the
building.
On one hand, a release to a secondary
containment device that is not wholly
contained and that is located outside of
a building or structure is "into the
environment." Examples of releases to
such devices that illustrate both the
potential for a serious pnbl«m aad an
existing serious situation have been
brought to the Agency's attention. These
include a release of hydrochloric acid to
a dike that would have overflowed in a
heavy rain, and radioactive
contamination of water supplies
apparently resulting from an improperly
functioning secondary containment
device at a nuclear facility.
On the other hand, it has been
suggested that where engineered
structures are open to the air. releases
into such structures should be exempt
from CERCLA notification unless an RQ
or more of the substance reaches any
ground or surface waters or land surface
or evaporates into the ambient air.
Releases to such structures may include
such occurrences as releases onto
concrete pads, secondary containment
devices with sealed floors around
storage tanks, or drip pans used to catch
minor hose or Una drainage.
The Agency is interested in receiving
comments and data discussing the
circumstances under which immediate
notification of releases into secondary
containment devices would not provide
useful information for Federal response
purposes under CERCLA. EPA is
particularly interested in information on
the significance of the issue, specific
examples of procedures followed where
there is a release to a secondary
containment device and techniques used
to prevent releases from such devices.
data discussing the integrity of
secondary containment devices, and
suggestions on the appropriate means of
eliminating any such unnecessary
reporting. If the Agency decides to
exempt from CERCLA notification
certain releases into secondary
containment devices, a demonstration
may be required to show that the device
is sufficiently protective and reliable.
fl. PCB Waste Disposal
A second issue concerning the
necessity for section 103 notification is
whether approved polycbiorinated
triphenyl (PCB) disposal by incineration.
landfiUing, or alternate methods needs
to be reported as a release under section
103. Because PCB disposal approvals
under the Toxic Substances Control Act
(TSCA) are not included in the CERCLA
section ICI(IO) definition of federally
permitted release, EPA does not believe
that it has the authority to apply that
exemption to such approvals.
At the same time, however. EPA does
act believe that notification under
section 103 of CERCLA provides any
significant additional benefit so long as
the disposal facility is is substantial
compliance with all applicable
regulations and approval conditions.
The PCB regulations under TSCA. 40
CFR Part 781. retfuuv tiwnen or
operators of PCB disposal facilities.
incinerators, chemical waste landfill*.
and high efficiency boilers to obtain
written EPA approval baaed on
compliance with detailed technical
requirements designed to ensure proper
disposal before accepting PCB wastes.
The TSCA approval process is designed
to ensure that the operation of PCB
disposal facilities does not present an
unreasonable riak of injury to health or
the environment from PCB*. la addition.
40 CFR Part TBUSubpart I. requires PCB
disposal facility owners or operators to
monitor carefully the facility's inventory
and operation, maintain detailed records
for periods of S to 20 years, and report
The TSCA
regulations provide the Federal
government with the information
necessary to determine whether an
emergency response to a PCB disposal is
required. Today's proposal not to
require CERCLA reporting for EPA-
approved PCB disposals is consistent
with the overall objective of the
CERCLA notification requirements.
Therefore, EPA will not require
reporting under section 103(a) of the
approved, proper disposal of PCB
wastes into a disposal facility. The
Agency requests comments on this
proposal to exempt administratively
these releases from CERCLA
notification.
A party responsible for a release of
PCB wastes that need not be reported
under CERCLA. however, remains liable
for the costs of cleaning up the release
and for any natural resource damages
caused by the release. In addition.
where the disposer knows that the
facility is not in compliance with
applicable regulations and approved
conditions under TSCA. disposal of an
RQ or more of PCB waste must be
reported to the National Response
Center. Likewise, spills and accidents
occurring during disposal and outside of
the approved operation aad that result
in releases of an RQ or more of PCB
waste must be reported to the National
Response Canter. Finally. PCB releases
of an RQ or more tram a TSCA-
approved facility (as opposed to
disposal into such a facility) must be
reported under CERCLA.
IV. Discharge* la POTWs
The Agency recognizes that the
regulation implementing CYYA section
311 for hazardous substance discharges
must be revised to be consistent with
the Agency's regulatory approach taken
under CERCLA section 101(10)0)- Under
CERCLA sedton 101(10)(J). an indirect
discharge to a POTW must be subject to
aad in compliance with categorical
pretreatment standards and local limits
applicable in an approved local
-------
Federal Register / Vol. 53. No. 138 / Tuesday. )uiy 19. 1988 / Proposed Rules
27279
pretreatment program (see discussion
under Section lH of today's preamble).
All indirect dischargers, ie.. both mobile
and stationary sources, are subject to
the same requirements for their
discharges to be considered federally
permitted releases.
Under 40 CFR 117.13. mobile sources
discharging industrial waste are not
subject to CWA section 311 coverage if
the mobile source has contracted with.
or otherwise received written
permission from the POTW to discharge
a designated quantity of industrial
waste treated to comply with effluent
limitations (under CWA sections 301.
.302. or 306) or pretreitment standards
(under CWA section 307). Indirect
dischargers are not addressed under
i 117.13. Paragraph (a) of 1117.13 was
reserved to provide the conditions under
which indirect discharges are subject to
CWA section 311.
The Agency is proposing to amend 40
CFR 117.13 to state that indirect
discharges are not subject to section 311
coverage if the indirect discharge is in
compliance with applicable categorical
pretreatment standards and local limits
developed in accordance with 40 CFR
4m J(c) and is into a POTW with an
approved local pre treatment program, or
a 40 CFR 403.10(e) State administered
local program. EPA also is proposing to
revise paragraph (b) to apply the same
conditions to mobile sources as would
be applied to indirect discharges under
paragraph (a). The Agency requests
comments on this proposal.
V. Regulatory Analyses
A. Executive Order No. 12291
Rulemaking protocol under Executive
Order (E.O.) 12291 requires that
proposed regulations be classified as
major or nonmajor for purposes of
review by the Office of Management
and Budget (OMB). According to E.O.
12291. major rules are regulations that
are likely to result in:
(1) An annual effect oo the economy of
SlOO million or mote: or
(2) A major increase in costs or prices for
consumers, individual industries. Federal
Suit*, or local government agencies, or
geographic regions: or
(3) Significant adverse effects on
competition, employment, investment
productivity, innovation, or on tht ability of
United States-based enterprises to compete
with foreign-based enterprises in domestic or
export markets.
Today's regulation is nonmajor.
because adoption of the rule will result
in zero costs and will not cause any of
the significant advene effects
mentioned in (3) above. The Background
Document for the Proposed Regulation
on Federally Permitted Releases.
available for inspection in the public
docket, shows that the proposed rule is
simply a clarification of existing
statutory requirements.
This rule has been submitted to OMB
for review, as required by E.0.12291.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1960
requires that a Regulatory Flexibility
Analysis be performed for all rules that
are likely to have a "significant impact
on a substantial number of small
entities." Today's proposed rule is not
expected to significantly impact small
entities because the rule proposes
simply to clarify the existing statutory
requirement. EPA certifies, therefore.
that this proposed regulation will not
have a significant impact on a
substantial number of small entities and •
that a Regulatory Flexibility Analysis is
not required.
C Paperwork Reduction Act
There are no reporting or
recordkeeping provisions included in
this proposed rule that require approval
from the Office of Maaagement and
Budget under section 3S04(h) of the
Paperwork Reduction Act of 1980.44
U.S.C 3501 et seq.
List of Subjects
40 CFR Part 117
Hazardous Substances. Penalties.
Reporting and recordkeeping
requirements. Water pollution control
40CFRPart302
Air pollution control. Chemicals.
Hazardous materials transportation.
Hazardous substances.
Intergovernmental relations. Natural
resources. Nuclear materials. Pesticides.
and pests. Radioactive materials,
Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal, Water pollution
control.
4O CFR Port 3SS
Chemical accident prevention.
Chemical emergency preparedness.
Chemicals. Community emergency
response plan. Community right-to-
know. Contingency planning. Extremely
hazardous substances. Hazardous
substances, Renortable quantity.
Reporting anal ftcordkeeping
requirements. Threshold planning
quantity.
Deled: July 11. IMs.
Lea M. Tansies.
Adminntiator.
For the reasons set out in the premble.
it is proposed to amend Title 40 of the
Code of Federal Regulations as follows:
PART 117— OfTERIIWATION Of
REPORTABU OUAKTTTJES FOR
HAZARDOUS SUBSTANCES
1. The authority citation for Part 117 is
revised to read as follows:
Authority: 33 U.S.C 1321 ud 1361.
2. Section 117.12 is revised to read as
follows:
1117.12 AaplMbBty to dtoche* aee iron
(a) This regulation does not apply to:
(1) Discharges in compliance with a
permit under section 402 of the Clean
Water Act
(2) Discharges resulting from
circumstances identified and reviewed
and made a part of the public record
with respect to a permit issued or
modified under section 402 of the Clean
Water Act. and subject to a condition in
such, permit or
[3] Continuous or anewipcsed
intermittent discharges from a point
source, identified in a permit or permit
application under serton-402 of the
Clean Water Act which are caused by
events occurring within the scope of
relevant operating or treatment systems.
(b) A discharge is "in compliance wit
a permit issued under section 402 of th|
Clean Water Act" if the permit contait
an effluent limitation specifically
applicabale to the substance discharged
or an effluent limitation applicable to
another waste parameter that has been
specifically identified in the permit as
intended to limit such substance, and
the discharge is in compliance with the
effluent limitation.
(c) A discharge results "from
circumstances identified and reviewed
and made a part of the public record
with respect to * permit issued or
modified under section 402 of the Clean
Water Act and subject to a condition tn
such permit" where:
(1) The permit application, the permit
or another portion of the public record
contains documents that specifically
identify:
(i) The substances and the amounts of
substances; and
(ii) The origin and source of the
substances: and
(ill) The treatment that Is to be
provided for the discharge either by.
(A) An on-site treatment system
separate from any treatment system
treating the permittee's normal
discharge: or
(B) A treatment system that is
designed to treat the permittee's nornfl
discharge and that is additionally
capable of treatiafrfee identified amount
of the identified substance: or
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Federal Register / VoL 53. No. 138 / Tuesday. July 18. 1988 / Proposed Rules
(Cl Any combination of the above
and
(2) Tht permit contain* a requirement
that the substance* and the amounti of
&e substances, as identified in
|117.12(c)(l)(i} and |117.12(c)(l)(ii). be
treated pursuant to 1 117.12Jc){l)(Mi) in
the event of an on-site release: and
(3J The treatment to be provided is in
place.
(4} A. discharge is a "continuous or
anticipated intermittent" discharge
"from a point source, identified in a
permit or permit application under
section 402 of the dean Water Act."
and "caused by events occurring within
the scope of relevant operating or
treatment systems'** whether or not the
discharge is in compliance with the
permit if:
(1) The hazardous substance is
discharged from a point source for
which a valid permit exists or for which
a permit application has been submitted:
(2) Th» discharge of the hazardous
substance results from:
(i) The contamination of noncontact
-rooting water or storm water, provided
tthat such cooling water or storm water
•i not contaminated by an onstte spili of
^ hazardous substance: or
(U) A continuous or anticipated
intermittent discharge of process waste
water, and where the discharge
originates within the manufacturing or
treatment systems: or
(iii) An upset or failure of a treatment
system or of • process producing a
continuous or anticipated intermittent
discharge where the upset or failure
results from a control problem, a system
failure or malfunction, an eo^iipment or
system startup or shutdown, an
equipment wash, or a production
schedule change, provided that such
upset oc failure, is not caused by an on-
site spill of a hazardous substance.
3. Section 117.13 ia revised to read aa
follows:
T17.1S
(a) These regulations apply to tSL
discharges of reportable quantities to a
POTW. where the discharge originate*
from slatiuuaiy industrial users, so long
as the discharge is:
(1) In compliance with applicable
categorical pretoeetment standards and
local Ifmfts developed in accordance
with 40 CFR403J(cIr and
(2) Into a POTW with an approved
local pretreatment program or a 40 CFR
403.10(e) State administered local
program.
(b) These regulation* apply to all
dischargee of reportable quantities- to a
POTW. where the discharge originate*
from a mobile source, so long as the
mobile source can show that
(1) Prior to accepting the substance
from an industrial discharger, the
subatance being discharged wa*. in
compliance with applicable categorical
pretreatment standard* and local limit*
developed in accordance with 40 CFR
40&5(c); and
(2) The substance ic being discharged
into a POTW with aa approved local
pretreatment program or a 40 CFR
403.10(e) State administered local
PART 302— oeSHMUTIOM.
REPOKTAsKf QUANTITIES. AND
NOTIFICATION
4. The authority citation for Part 302 is
revised to read aa follows:
Auttmity: 41 U.&C. 9802: » U&C 1321
•ad 13*1.
5. Section 302J is amended by adding.
in alphabetical order the definition
"federally permitted release** and by
revising the introductory text of the
definition "release'* to read as follow*:
"Federally permitted release" means
(1) a discharge in compliance with a
permit under section 402 of the dean
Water Act
(2) A discharge resulting from
circumstances, identified and reviewed
and made a part of the public record
with respect to a permit issued or
modified under section 402 of the Clean
Water Act and subject to a condition in
such permit
(3) A continuous or anticipated
internment discharge from a point
source, identified in a permit or permit
application under section 402. of the
Clean Water Act. which is caused by
events occurring within the scope of
relevant operating or treatment systems:
(4] A discharge in compliance with a
legally enforceable Federal or State.
individual or general penntt under
section 40* of the Oeaa Water Act
(S) A release ia compliance with a
legally enforceable Federal or State final
permit ittmni p*"••"•"' to section 3005
(a.) through (df of the Solid Waste
Disposal Act from a MrnpfrHi* waste
treatment, storage, or disposal facility
when such pezmit specifically Identifies
the hazardous substancee-end iB*lrtt
such substances subject to a standard at
practice, control procedure, or bioassay
limitation or condition, or other control
on the hazardous substances la such a
release:
(8) Any release ia compliance with, a
legally enforceable; permit issued under
section 102 or section 103 of the Marina
Protection, Research, and Sanctuaries
Act of 1972:
(7) Any injection of fluids suthorized
under Federal underground injection
control program*, or State program*
submitted for Federal approval (and not
disapproved by the Administrator]
pursuant to Part C of the Safe Drinking
Water Act
(8) Any emission of a substance into
the air which i* named specifically or i*
included in a specifically named group
of substance* cubject to and in
compliance with a permit or ^"Vr*^
regulation under section 111. section 112.
Titte I Part C, Title I Part 0. or State
implementation plans submitted in
accordance with section 110 of the
dean Air Act (and not disapproved by
the Administrator) when such permit or
control regulation is specifically
designed to limit or eliminate such
emission of a designated hazardous
pollutant or a criteria pollutant.
fnrfutfing any schedule or waiver
granted, promulgated, or approved
under these sections:
(9) Any injection of Quids or other.
material* specifically authorized under
applicable State law: solely for the
purpose of «*itnuUqpj or treating wells
for the production of crude oil natural
gas. or water: solely for the purpose of
secondary, tertiary, or other enhanced
recovery of crude oil or natural gee or
which are brought to the *urface in
conjunction with the production of crude
oil or natural ga* and which are
reinjected:
(10) The introduction of any pollutant
into a publicly owned treatment work*
(POTW) when mch poliuttnt i*
specified in and in compliance with
applicable categorical pretreatment
standard* and local limits developed in
accordance with 40 CFR 403J(c) and
into a POTW with an approved local
pretreatment program or a 40 CFR
40WO*e) State administered local
program: and
(11) Any release of source, special
nuclear, or byproduct material, as those
terms are defined in the Atomic Energy
Act of 1954. in compliance with a legally
enforceable license, permit, regulation.
or other issued pursuant to the Atomic
Energy Act of 1954.
Federally permitted releases do not
include release* exempt from regulation
under the authority of one of the cited
statutes: release* not in compliance with
the applicable permit limit or condition.
horns*, regulation, order, standard, or
program: or release* into a medium.
other than that covered in the applicable
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Federal Register / Vol. 53. No. 138 / Tuesday. July 19. 1988 / Proposed Rules
27281
permit license, regulation, order.
standard, or program.
* • • « •
"Release" meena any spilling, leaking.
pumping, pounng. emitting, emptying.
discharging, injecting, escaping.
leaching, dumping, or disposing into the
environment (including the
abandonment or discarding of barrels.
containers, and other dosed receptacles
containing any hazardous substance or
pollutant or contaminant), but excludes
ft. Section 302.6 it amended by adding
new paragraphs (e) and (f) as follows:
i 902.8 Nottflcatton requtrwMfrta.
PART 35»-€UEftGEMCY PLANNING
AND
(e) Whenever a release of a hazardous
substance exceeds its federally
permitted level as defined under { 302J
("federally permitted release") by a
reporuble quantity or more, notification
shall be made for such release in
accordance with the requirements of
this section or. if applicable, i 302A.
Where numerical levels for hazardous
substances are not specified any
release not in compliance with the
terms, related to the character or
quantity of the release, of the applicable
permit license, regulation, order.
standard or program that equals or
exeeds a reports ble quantity must be
reported to the National Response
Center in accordance with this section
or. if applicable. } 302.8.
(f) Notification is not required for the
disposal of polychlorinated biphenyl
(PCB) approved by EPA and in .
substantial compliance with the
applicable Toxic Substance Control Act
(TSCA) regulations. 40 CFR Part 781.
and approval conditions.
7. Section 302.7 is amended by
revising paragraph (al(3) to read as
follows:
{302.7 tonatttM.
(a)'**
(3) In charge of a facility from which a
hazardous substance is released, other
than a federally permitted release, in a
quantity equal to or greater than that
reportable quantity determined under
this part who fails to notify immediately.
the National Response Center as soon
as he or she has knowledge of such
release or who submits in such a
notification any information which he or
she knows to be false and misleading
shall be subject to ail of the sanctions,
including criminal penalties, set forth in
section 103(b) of the Act
a. The authority citation for Part 355 is
revised to read as follows:
Authority: 42 U.S.C. 11002 and 11048.
9. Section 355.40 is amended by
revising paragraph (a) to read as
follows:
I3SL40 Emerge
MMc
eyrMea
(a) Applicability. (1) The requirements
of this section apply to any facility:
.(i) At which a hazardous chemical is
produced, used, or stored: and
(ii) At which there is a release of a
reportable quantity of any extremely
hazardous substance of CERCLA
hazardous substance.
(2) This section does not apply to:
(i) Any release that results in
exposure to persons solely within the
boundaries of the facility:
(ii) Any release that is a "federally
permitted release." as defined as
follows:
(A) A discharge in compliance with a
permit under section 402 of the dean
Water Act
(B) A discharge resulting from
circumstances identified and reviewed
and made a part of the public record
with respect to a permit issued or
modified under section 402 of the Clean
Water Act and subject to a condition in
such permit:
(C) A continuous or anticipated
intermittent discharge from a point
source, identified in a permit or permit
application under section 402 of the
Clean Water Act which is caused by
events occurring within the scope of
relevant operating or treatment systems:
(D) A discharge in compliance with a
legally enforceable Federal or State.
individual or general permit under
section 404 of the Clean Water Act
(E) A release in compliance with a
'legally enforceable Federal or State final
permit issued pursuant to section
3005(8) through (d) of the Solid Waste
Disposal Act from a hazardous waste
treatment storage, or disposal facility
when such permit specifically identifies
the hazardous substances and makes
such substances subject to e standard of
practice; control procedure, or bioassay
limitation or condition, or other control
on the hazardous substances in such a
release:
(F) Any release in compliance with a
legally enforceable permit issued under
section 102 or section 103 of the Marine
Protection. Research, and Sanctuaries
Act of 1972:
(C) Any injection of fluids authorized
under Federal underground injection
control programs or State programs
submitted for Federal approval (and
disapproved by the Administrator)
pursuant to Part C of the Safe Drinking
Water Act
(H) Any emission of a substance into
the air which is named specifically or is
included in a specifically named group
of substances subject to and in
compliance with a permit or control
regulation under section 111. section 112.
Title I Part C Title 1 Part D. or State
implementation plans submitted in
accordance with section 110 of the
Clean Air Act (and not disapproved by
the Administrator) when such permit or
control regulation is specifically
designed to limit or eliminate such
emission of a designated hazardous
pollutant or a criteria pollutant
including any schedule or waiver
granted, promulgated, or approved
under these sections:
(I) Any injection of fluids or other
materials specifically authorized under
applicable State law: solely for the
purpose of stimulating or treating wells
for the production of crude oil. natural
gas. or water solely for the purpose of
secondary, tertiary, or other enhanced
recovery of crude oil or natural gas: or
which are brought to the surface in
conjunction with the production of o^al
oil or natural gas and which are
reinjected:
0) The introduction of any pollutant
into a publicly owned treatment works
.(POTW) when such pollutant is
specified in and in compliance with
applicable categorical pretreatment
standards and local limits developed in
accordance with 40 CFR 403.5(c) tod
into a POTW with an approved
pretreatment program or a 40 CFR
403.10(e) State administered local
program: and
(K) Any release of source, special
nuclear, or byproduct material as those
terms are denned in the Atomic Energy
Act of 1954. in compliance with a legally
enforceable license, permit regulation.
or order issued pursuant to the Atomic
Energy Act of 1934.
(iii) Federally permitted releases do
not include releases exempt from
regulation under the authority of one of
the died statutes: releases not in
compliance with the applicable permit
limit or condition, license, regulation.
order, standard, or program: or releases
into a medium other than that covered in
the applicable permit license.
regulation, order, standard, or program.
• • • * *
(FR Doc 88-10182 Filed 7-18-88: 8:45 tm^
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*• n T4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
OFFICE OF
JUL 29 1988 SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive No. 9832.13
MEMORANDUM
SUBJECT: Transmittal of the Suaerfund Cost Recovery Strategy
FROM: / J. Winston Porter J£L
•Assistant Administrator!
TO: Regional Administrators, Regions I-X
Attached is the final Superfund Cost Recovery Strategy. The
Strategy sets forth the Agency's priorities and case selection
guidelines, emphasizes the advance planning necessary to initiate
cost recovery actions within the Agency's preferred time frames,
and describes the cost recovery process fdr removal and remedial
actions.
Cost recovery is one of the highest priorities of the
Superfund program. This document should assist you in advancing
the Agency's objectives.
Attachment
cc: Directors, Waste Management Divisions
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Divisions
Regions III, VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Directors, Environmental Services Divisions
Regions I, VI, VII
Regional Counsel, Regions I-X
Thomas L. Adams, Assistant Administrator for Enforcement and
Compliance Monitoring
Charles Grizzle, Assistant Administrator for Administration
and Resources Management
Roger J. Marzulla, Assistant Attorney General, Land and
Natural Resources Division, Department of Justice
-------
OSWER Directive No. 9832.13
THE SUPERPDND COST RECOVERY STRATEGY
Office of Solid Haste and Emergency Response
U.S. Environmental Protection Agency
July 29, 1988
-------
Table of Contents
Purpose of this Guidance 1
I. Program Priorities and Management 2
II. Case Selection Guidelines. 7
III. The Cost Recovery Process for Removal Actions 12
A. Pre-Removal Cost Recovery Activities 12
1. The Potentially Responsible Party Search
2. Development of the Administrative Record
3. Notice, Negotiation and the Issuance of
Administrative Orders
B. Cost Recovery Activities during the Removal Action....17
1. Documentation of Activities and Cost Accounting
2. Supplemental PRP Search
C. Post-Removal Cost Recovery Activities 19
1. Evaluation and Completion of the Potentially
Responsible Party Search
2. Cost Documentation
3. Demand Letters
4. Negotiation
5. Settlements
6. Consideration of Referral in the Event of No
Settlement
IV. Cost Recovery Process for Remedial Sites 30
A. Pre-Remedial Cost Recovery Activities 31
1. The Potentially Responsible Party Search
2. General and Special Notice Letters and
• Negotiations for a PRP Remedial Investigation
and Feasibility Study
3. Settlement for PRP Remedial Investigation/
Feasibility Study
B. Cost Recovery Activities during the Remedial
Investigation/Feasibility Study 35
1. Documentation of Activities and Cost Accounting
2. Supplemental PRP Search
-------
3. Development of the Administrative Record
4. Special Notice Letters and Negotiation for PRP
Remedial Design and Remedial Action
C. Settlement for PRP Remedial Design and Remedial
Action 38
1. Full Settlement
2. Partial Settlement
3. No Settlement
D. Ccst Recovery Activities during the Remedial Design
and Remedial Action 41
1. PRP RD/RA
2. Fund-Financed RD/RA
a) Cost Documentation
b) Demand Letters
c) Consideration of a Referral in the Event of
No Settlement
V. Existing cost Recovery Guidance 47
ii
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OSWER Directive. No. 9832.13
Purpose of this guidance
This guidance document is intended to provide a framework
for planning and initiating actions to recover Federal funds
expended by EFA cr a State1 in CERCLA response actions. Part I
discusses general cost recovery program priorities. Part II
identifies case selection guidelines to aid managers in setting
priorities for case referrals for the most efficient use of cost
recovery resources. Parts III and IV identify activities
required to support the development of cost recovery actions for
each site where the Agency spends Fund monies in response
actions: Part III sets out the cost recovery process for removal
actions; Part IV sets out the cost recovery process for remedial
actions. Part V is a bibliography of guidance documents related
to cost recovery.
V While a State nay be the lead agency for response actions
taken at a site, EPA retain* responsibility for pursuing recovery
of Federal funds expended.
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OSWER Directive No. 9832.13
Part I. Program Priorities and Management
The policy of the CERCLA Enforcement program is to obtain
response actions in.the first instance by responsible parties,
rather than by the Environmental Protection Agency (EPA) or a
State. However, there have been and will continue to be cases in
which the Agency will respond to releases using funds from the
Hazardous Substances Superfund (the Fund) for site response
actions. The recovery of Fund expenditures through the cost
recovery program is one of the highest priorities of the
Superfund program. The costs associated with such Fund-financed-
response actions are recoverable fron the party or parties who
are liable under section 107 of the Comprehensive Environmental
Response, compensation, and Liability Act of 1980, as amended
(CERCLA, or the Act).2 CERCLA provides for the recovery of costs
through judicial actions under section 107 of the Act, as
components of settlements for prospective work under section 106,
or 122, and in administrative settlements under section 122.
The priorities and objectives of the cost recovery program
are to: l) maximize return of revenue to the Fund; 2) initiate
2/ Section 10? provides generally that past and present
owner* and operators of a site, and persons (e.g., generators)
who arranged for disposal or treatment of, and transporters who
contributed, hazardous substances to a site, shall be liable for
all costs incurred in response to a release or threat of release
undertaken by the United states government, a state, an Indian
tribe, or any other person, for damages to or loss of natural
resources and the costs of assessing such damages or loss, and
for costs of any health assessment or health effects study
carried out under $104(i).
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OSWER Directive No. 9832.13
necessary litigation or resolve ripe cases for cost recovery
within strategic tiae frames but no later than the time provided
under the statute of limitations; 3) encourage PRP settlement by
implementing an effective cost recovery program against non-
settlers (i.e., recalcitrants); and, 4) use administrative
authorities and dispute resolution procedures effectively to
resolve cases without unnecessary recourse to litigation.
In managing the program and achieving these objectives, EPA
must ensure that each response action (and supporting case
development activities) undertaken using Fund monies proceeds in
a manner that will optimize its cost recovery potential. (See
Part III, Cost Recovery Process for Removal Actions, and Part IV,
Cost Recovery Process for Remedial Sites.) In addition, EPA must
evaluate each ripe response action in a manner consistent with
this strategy to determine when, whether and how to proceed with
cost recovery.
The stage at which a case becomes ripe for cost recovery is
an important concept. A conventional removal is ripe when it is
completed.3 A remedial is ripe concurrent with the initiation of
on-site construction of the remedial action. (See footnote 5,
page 5.)
3/ Although a RI/FS may be considered to be a removal, cost
recovery generally is pursued as part of remedial action cost
recovery.
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OSWER Directive No. 9832.13
Sine* resources available to the cost recovery program are
limited, EPA must set priorities and select and plan actions in a
manner and at a time which will provide for the maximum return to
the Fund. A major factor in setting priorities is the amount of
funds involved. However, statute of limitations may warrant the
pursuit of a case of lower dollar value before one of higher
value. Priorities are discussed in Part II, case Selection
Guidelines.
Where possible, an attempt should be made to settle cost
recovery cases administratively under the authority provided in
CERCLA §122(h). Use of this authority should result in cost
recovery case resolution for some cases in a shorter time frame
and with fewer resources than traditional litigation or
settlement through judicial means. Use of the administrative
settlement authority for smaller cost recovery cases, especially
those with total costs of response less than five hundred
thousand dollars, should reduce case resolution time since these
may be directly settled by Regional offices without the prior
concurrence of either EPA headquarters or the Department of
Justice.4
Where judicial actions are warranted, referral of cases
selected consistent with the guidelines set forth in Part II,
4/ Authority to settle cost recovery cases administratively
(CERCLA |122(h) authority) was delegated to Regional
Administrators on September 21, 1987, (Delegation 14-14-D).
Novel issues should be discussed with EPA Headquarters.
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OSWER Directive No. 9832.13
below, within the Agency's preferred tine frames5 will ensure
that the best cases will be filed well within the required
statute of limitations.
Finally, the realization of the program's objectives depends
en the effective management of all aspects of the cost recovery
program. Each Region must have a well-defined process in place
to ensure coordination among the Superfund program/enforcement
office, the financial management office, and the Office of
Regional Counsel (and Headquarters, where appropriate). The
process should also foster the efficient management of the
elements of the cost recovery program including systems to cover
the following:
a) the on-going review, selection, and referral of ripe
cases;
b) the assembly of cost documentation and the issuance
of demand letters;
c) tracking and collection of oversight cost recovery
in settlements;
d) the review and documentation to close-out cases for
5/ Cost recovery actions for removals should be referred to
the Deparbs«nt of Justice as soon as possible after the action
has been completed but in most cases, not later than one year
after the completion date. Cost recovery actions for remedial»
should be referred to the Department of Justice at the time of
initiation of physical on-site construction of the remedial
action. See the June 12, 1987, Memorandum entitled coat Recovery
Actions/Statute of Limitations. OSWER Directive, No. 9832.3-1A.
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OSWER Directive No. 9832.13
which cost recovery will not be pursued;
e) the effective use of administrative settlement
authority;
f) the tracking and follow-through of active cases
(those in litigation); and,
g) the establishment and collection of accounts
receivable.
Effective information management on the status of each ripe case,
coupled with forward planning, is essential. Timely and accurate
reporting in information management systems, especially CERCLIS,
is essential for management of the above processes and the entire
cost recovery program.
The Agency must continue to utilize cost recovery
enforcement authorities to create an incentive for settlement and
disincentive for refusal to settle. An atmosphere of risk of
cost recovery litigation will promote settlement for PRP response
actions as veil as settlements for cost recovery.
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OSWER Directive No. 9832.13
Part II. Case Selection Guidelines-
As the Superfund program matures, an increasing number of
sites are moving beyond the early stages of the Superfund process
and into the remedial design and action phases, where greater
amounts of money are spent. The vast majority of potential
reimbursement to the Fund in future years depend on recovery of
funds associated with these sites.
Regions must make management decisions regarding which sites
to refer for judicial action under 107. The following case
selection guidelines, when applied to candidates for referral,
help ensure that resources are mainly directed towards those
cases which have the highest potential for replenishing the
Fund. The guidelines are generally based on the amount of money
expended at a site and take into account its recoverability
(i.e., strength of the case, financial viability of PRP(s)).
Generally, the sites that will generate the largest returns
to the Fund are ripe remedial*, defined as those where the
remedial action has been initiated. These cites should be
considered high priority for referral. A cost recovery referral
should b«v scheduled for every site where a federally funded
remedial action is planned and there are viable PRPs. The action
should be filed no later than the initiation of physical on-site
construction of the remedial action. (Note that in order to meet
thi» timing requirement, case preparation activities should begin
early. See Part IV, Cost Recovery Process for Remedial Portions
7
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OSWER Directive NO. 9832.13
of NPL Sites, for further information.) The Agency will defer
the filing of a remedial action beyond this date only in limited
circumstances for technical or strategic reasons.6
The second category of sites to which resources should be
directed are those NPL or non-NPL sites where EPA has completed a
removal action (including an expanded removal action or ERA),
remedial investigation/feasibility study (RI/FS), or an initial
remedial measure (IRM), where the total costs of response are two
hundred thousand dollars or greater, and the possible statute of
limitations deadline is approaching. Although the Agency's
position is that the SARA statute of limitations applies only to
those response actions initiated after the effective date of SARA
(October 17, 1986), the Regions should refer all cases well
within the SARA statute of limitations time frames, whether or
not the action was initiated prior to the effective date of SARA.
Where a conflict exists between referring a case in the first
category and referring a case in the second category, the
referral of cases with approaching statute of limitations
deadlines and costs greater than two hundred thousand dollars
should normally take precedence over the referral of ripe
remedial sites. Pre-SARA cases in the second category that are
6/ For example, a Region may desire to delay th« initiation
of a cost recovery case until after evaluation of the success of
implementation of an unproven remedial technology.
8
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OSWER Directive No. 9832.13
beyond the time frame of the SARA statute of limitations should
be referred as soon as possible.
A related category of sites to which resources should be
directed are those NPL or non-NPL sites where EPA has completed a
removal action and the total costs of response are two hundred
thousand dollars or greater. Sites in this category are
distinguished from the above category because they are not
nearing a potential statute of limitations deadline. These cost
recovery referrals should be made no later than twelve months
after completion of the removal action. In some .instances,
strategic reasons may warrant that EPA defer filing for cost
recovery of a removal action until the remedial action is
initiated.
The fourth category of sites are those where there has been
a partial settlement providing the government less than full
relief and there are viable non-settlers. These actions should
be pursued promptly as a disincentive to non-settlers.
The fifth category of sites are those where total costs of
response are less than two hundred thousand dollars. Consistent
with available resources, cost recovery referrals should be
considered for these sites where evidence linking the PRPs to the
sit* is good, and PRPs are recalcitrant, or the case may be used
to create good precedent or an example that EPA is willing to
pursue costs when the merits of the case warrant it. Each Region
should plan to bring some small cost recovery actions each year
9
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OSWER Directive No. 9832.13
primarily to maintain an atmosphere of risk to PRPs associated
with sites with total costs of response less than two hundred
thousand dollars.-
Within each category above, decisions should generally be
made on the basis of an evaluation of the factors identified on
pages 26 and 43, below, which will provide an indication of the
strength of the case. This recognizes that cost recovery may not
be pursued for PRP viability and evidentiary reasons as well as
the lack of Agency resources for some small cases and
bankruptcies.
The guidelines above do not relate directly to bankruptcy
referrals because they often present particularly difficult case
selection and management issues. The Agency is frequently
operating under time constraints with imperfect information.
Nonetheless, it is important in bankruptcy cases to make reasoned
and informed judgments on whether a bankruptcy action is worth
pursuing, given other demands on Agency resources. This
requires, at a minimum, an evaluation of the following factors:
the amount of funds to be recovered; the case against the PRP and
the possibility of full recovery from other PRPs; the likelihood
of significant recovery given the assets and liabilities of the
PRP (e.g., bankruptcies at multi-generator sites where viable
PRPs remain as compared to bankruptcy cases at sites where the
owner/operator is bankrupt and no other viable PRPs exist); the
claims of secured and unsecured creditors; and, the likely Agency
10
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OSWER Directive No. 9832.13
resources involved. When the likelihood of significant recovery
compared to resource utilization in pursuit of the recovery is
high, bankruptcy referrals should be prioritized in accordance
with the categories above. The Revised Hazardous Waste
Bankruptcy Guidance. May 23, 1986, OECM, contains additional
information regarding the pursuit of bankrupt parties in
hazardous waste cases.
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OSWER Directive No. 9832.13
Part III. THE COST RECOVERY PROCESS FOR REMOVAL ACTION^
Before, during, and following a removal action there are
specific steps that-the Agency7 must take to facilitate
settlement or maximize the potential for recovery of funds in any
future cost recovery action. The extent of each of the steps may
vary depending upon the cost, size and duration of the removal
action. The timing may vary depending upon the exigencies of the
situation. This section identifies and explains each of the
steps taken in the removal process to facilitate cost recovery.8
A. Pre,-Removal Cost Recovery Activities
Pre-removal activities that may be carried out in
preparation for future cost recovery actions include the
initiation of the potentially responsible party search, the
development of the administrative record, notice to identified
PRPS and negotiations with those PRPs who are interested, and the
issuance of administrative orders. While each of these
7/Throughout Part* III and IV, the terms "Agency" and
"Regions11 are used frequently in discussions of activities to be
conducted. When a State has entered or will enter into a
cooperative agreement with EPA to conduct any activities on a
site, the Region must ensure that activities identified in Parts
III and XV are conducted by either EPA or the State, as
appropriate* Refer to the Interim Final Guidance Package on
Funding CERCLA State Enforcement Actions at NPL Sites, OSWER
Directive No. 9831.6 for additional information on activities
that can be undertaken by States.
8/ See, also, Chapter 5 of the Supcrfund Removal Procedures
Revision Number Three. OSWER Directive No. 9360.0-03B.
12
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OSWER Directive No. 9832.13
activities is an integral part of the broader Superfund program,
each has a special significance in light of potential cost
recovery actions.
A.I. The Potentially Responsible Party Search. The
identification of potentially responsible parties (PRPs) in the
potentially responsible party search is central to all cost
recovery actions. The search should uncover potentially liable
parties with whom EPA may negotiate and from whom EPA may seek
recovery of costs in the future, as well as develop the evidence
of liability that may be used in a judicial action. While the
PRP search initiated following site .discovery may continue
throughout the Superfund process certain PRP search activities
should b* conducted prior to the initiation of a removal action.
The extent of further activities may depend on the expected costs
of the removal.
At the time of discovery of a problem site/ a preliminary
PRP search is conducted by the Agency to identify the
owner/operator of a site and other readily identifiable PRPs.
The completed PRP search for a removal action should include the
following tasfcs, as appropriate: history of operations at the
site; a titl* search of the site property; Agency record
collection and file review; interviews with government officials;
PRP status/PRP history; records compilation; issuance of CERCLA
104(e) letters/RCRA 3007 letters; financial status; PRP name and
address updates; appropriate identification of generators and
13
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OSWER Directive NO. 9832.13
transporters; and, report preparation. Any or all of these tasks
way and should be initiated prior to the initiation of a removal
action where time permits. However, since many removals are of
an emergency nature, and there is often little time prior to
initiation of the action, all PRP search activities will not
commonly be initiated prior to the removal. Each PRP search task
should be initiated at the earliest possible time during or
shortly after completion of the removal action.
Program, enforcement and legal staff, and the Region's civil
investigator should work closely together in the development of
the PRP search from the initial planning stages through the
production of the PRP search report. Regions should rely on the
expertise of the Office of Regional Counsel and the civil
investigator as veil as outside contractors where necessary to
conduct the PRP search and prepare and review the PRP search
report. More information on the tasks listed above is provided
in detail in Chapter 3.1 of the Potentially Responsible Party
Search Manual. August 27, 1987, (OSWER Directive No. 9834.6).
If total response costs are not expected to exceed two
hundred thousand dollars, the Region may defer implementation of
many of the tasks of the PRP search listed above until completion
of the removal action. If total costs of the completed removal
do not exceed two hundred thousand dollars, the Region should
evaluate available resources and competing priorities, and in
light of the evaluation, decide whether or not to conduct
14
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OSWER Directive NO. 9832.13
additional PRP search activities. At a minimum, a title search
of the property should be conducted. If total costs of the
completed removal exceed two hundred thousand dollars, additional
PRP search tasks should be conducted in anticipation of further
enforcement activities.9
A.2. Development of the Administrative Record. The development
of the administrative record supporting the selection of a
response action is central to the Agency's ability to recover
costs. If after completion of a removal action, a decision is
made to file a §107 judicial action, the administrative record
will serve as the basis for judicial review of issues concerning
the selection of the response action. See section 113(j) of
CERCLA. Prior to the.initiation of a removal action, Regions
should develop the administrative record consistent with the
applicable procedures set forth in the May 29, 1987 memorandum
entitled Administrative Records for Decisions on Selection of
CERCLA Response Actions (OSWER Directive No. 9833.3).
A.3. Notice. Negotiations and the Issuance o^ Administrative
Orders. Notice, negotiations, and the issuance of administrative
orders are activities that should be conducted to obtain an
9/ Where the reaoval exceeds two hundred thousand dollars,
the property is marketable and of value and it may be sold, the
Agency should evaluate, during the PRP Search, the value of
filing notice of a lien on the property affected by the removal
action. OECM's Guidance on Federal Suoerfund Liens.
September 22, 1987, (OSWER Directive No. 9832.12), provides
guidance on the use of Federal liens.
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OSWER Directive NO. 9832.13
agreement from the PRP(s) to implement a response action, thus
eliminating the need for cost recovery of response action costs.
There are important cost recovery aspects to each of these
activities.
The Interim Guidance on Notice Letters. Negotiations, and
Information Exchange. October 19, 1987 (OSWER Directive
No. 9834.10) provides information on the content and timing of
notice letters for removal actions.
If notice to PRPs leads to negotiations for a PRP removal
action, Regions should obtain an agreement from the PRPs for the
reimbursement of EPA's oversight costs.10 This is particularly
important for large removals that will involve extensive
contractor oversight costs. The administrative order on consent
should contain a provision which describes the manner of
determining the amount, the documentation to be furnished by EPA,
the schedule for billing by EPA, and payment by the PRP of the
oversight costs incurred by EPA. Where a consent order for a
removal action contains a provision for the reimbursement of
EPA's oversight costs, the Regional program office should provide
a copy of the order to the Regional Financial Management Officer
with a request to establish an account receivable and tracX
receipt of the oversight costs. The Office of Waste Programs
10/ CERCIA |104(a), as amended, requires reimbursement for
oversight costs for the RI/FS. See Part IV, page 30.
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OSWER Directive No. 9832.13
Enforcement is developing further guidance on collection of
oversight reimbursement from PRPs.
Where negotiations for a PRP response action are
unsuccessful, or the exigencies of the situation at the site do
not allow for extended negotiations, there is a presumption,
rebuttable for documented good cause, that Regions should issue a
§106 unilateral administrative order to viable PRPs.11 A
unilateral order may encourage PRP response and has the added
advantage of setting up treble damages12 and penalties13.
B. Cost Recovery Activities During the Removal Action
Cost recovery activities that occur during a removal action
depend upon whether the removal is conducted by the Agency (or
/ See the Issuance of Administrative Orders for
Removal Actions. (OSWER Directive No. 9833.1).
12/ Section 107(c)(3) of CERCLA establishes the authority
of the United States to collect treble damages for non-compliance
with an administrative order: "If any person who is liable for a
release or threat of release of a hazardous substance fails
without sufficient cause to properly provide reaoval or remedial
action upon order of the President pursuant to section 104 or 106
of this Act, such person may be liable to the United States for
punitive damages in an amount at least equal to, and not more
than three.times, the amount of any costs incurred by the Fund as
a result of such failure to take proper action."
13/ Section 106(b) provides that "any person who, without
sufficient causa, willfully violates, or fails or refuses to
comply with, any order of the President under subsection (a) may,
in an action brought in the appropriate United States district
court to enforce such order, be fined not more than $25,000 for
each day in which such violation occurs or such failure to comply
continues."
17
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OSWER Directive No. 9832.13
its contractors) or a potentially responsible party, or both.14
During a fund-financed removal action, all EPA and contractor
activities and costs must be carefully recorded and the PRP
search should be reviewed and supplemented, as necessary. During
a PRP removal action, the Agency must keep track of its oversight
costs.
B.I. Documentation of Activities and Cost Accounting. During a
removal conducted by EPA or PRPs, the Agency must maintain an
accounting of activities and costs associated with the response
action. These costs may include: EPA in-house expenditures;
contracts; money paid to other federal agencies through
interagency agreements (lAG's); and, money paid to States through
cooperative agreements. EPA personnel must take .care to charge
all time and travel associated with a removal action using the
site-specific account number (site/spill identifier number,
SSID). Contracts, IAC'S and cooperative agreements should
provide that, charges are made site-specifically, also.
B.2. Supplemental PRP Search. During the removal action, the
search for potentially responsible parties should continue.
Newly identified PRPs should be issued notice letters and
administrative orders as appropriate. The Region should consider
14/ In some instances, the EPA conducts initial site
stabilization work and than negotiates with PRPs for than to
conduct the remainder of the removal action undar a consant
order. Activities conducted in preparation for potential cost
recovery actions would necessarily include those for both fund-
financed removal actions and PRP removal actions.
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OSWER Dir«Ctiv« No. 9832.13
the total expected response costs at a site when conducting a
supplemental PRP search. Generally, the higher the total cost of
removal, the greater the effort the Agency should make to
identify PRPs and develop the information that links them to the
site. For all removal actions over two hundred thousand dollars,
the tasks identified in Section A.I must be completed in advance
of a final decision to proceed or not with litigation for cost
recovery.
C. Post-Removal Cost Recovery Activities
After the completion of a fund-financed removal action, the
major components of the potential cost recovery case are
collected (administrative record, the PRP search, total costs of
response at the site, the demand letter and response to it, and
other pertinent information) and the likely success of cost
recovery efforts is evaluated. Based on the evaluation, the
Region must make, a final decision *to proceed or not to proceed
with further efforts at cost recovery.
C.I. Evaluation and Completion of the Potentially Responsible
Party Search. After the removal has been completed, the PRP
search should be evaluated for completeness. The Regional
Counsel assigned to the case should review the PRP search for
evidentiary sufficiency. The decision to conduct any additional
PRP search activities not yet initiated should be made on the
basis of the sufficiency of the evidence and consistent with the
total costs of response and the likelihood of identifying
19
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OSWER Directive NO. 9832.13
additional PRPs. The higher the costs of response, the stronger
the effort should be to locate PRPs and link them to the site.
Some cases with total costs of response less than two hundred
thousand dollars will not be litigated. Extensive PRP searches
should not be conducted for such smaller cases without prior
evaluation of the site expenditures, costs of additional PRP
search activities, likelihood of identifying viable PRPs, and
likelihood of litigation if PRPs fail to respond satisfactorily
to a demand letter.
If the PRP Search has not identified any PRP, the case
should be closed out by way of a cost recovery close-out
memorandum.15 This will provide documentation that the cost
recovery potential has been evaluated and remove the case from
further consideration. The execution of a Cost Recovery Close-
out Memorandum on a site must be reported in the CERCLIS system.
C.2. Cost Documentation. Following the conclusion of the
removal, and sometimes earlier, the Region should begin gathering
the records which serve to support a demand letter. The
threshold of two hundred thousand dollars should be used to
determine the initial extent of cost documentation. Initially,
documentation for cases less than two hundred thousand dollars
should include the total costs of the response activity broken
15/ See the "Guidance of Documenting Decisions not to Take
Cost Recovery Actions", (OSWER Directive No. 9832.11).
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OSWER Directive No. 9832.13
down by general categories. These categories include EPA in-
house expenditures, contracts, other federal agency costs
(through interagency agreements) and Fund monies expended by
States through cooperative agreements. Additional documentation
may be required later to respond to a Freedom of Information Act
request, to respond to PRPs in negotiation, or to prepare for
litigation.
For those viable cases with costs greater than two hundred
thousand dollars, full cost documentation, including the
submittal of the Cost Recovery Checklist to Headquarters should
proceed prior to issuance of the demand letter. The checklist,
once completed, must be sent to OWPE allowing adequate time
(typically twelve weeks or more) for document collection. EPA
Headquarters, the Region, the Department of Justice, other
federal agencies, and States, each have certain responsibilities
in the collection and packaging of cost documentation. The
Procedures for Poqujiffpfc Incr Costs for CERCIA i!07 Actions. January
30, 1985 (OSWER Directive No. 9832.0-la) describes roles and
responsibilities of each office in preparing cost documentation
for litigation.
C.3. rUWFITfl l*etter«. As soon as the Region has documented costs
consistent with the level of expenditures and likelihood of
litigation, the Region should issue a demand for payment of all
21
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OSWER Directive No. 9832.13
past costs to PRPs.16 The demand letter should be sent to all
PRPs as soon as practicable after the completion of the removal.
A demand letter should be issued in all cases where response
costs have been incurred under CERCLA regardless of whether a
decision has been made to initiate a judicial proceeding for cost
recovery.
Guidance on the content of a demand letter, and a model
demand letter can be found in the Cost Recovery Actions unde^ ^he
Comprehensive Environmental Response. Compensation, and
Liability Act of 1980. August 26, 1983 (OSWER Directive No.
9832.1). In addition to the items listed in the 1983 Cost
Recovery Guidance to be included in a demand letter, all demand
letters shall reflect the revisions of the SARA amendments to
section 107(a) which provides that the "amounts recoverable in an
action under this section shall include interest on all [costs
incurred by EPA not inconsistent with the national contingency
plan]. Such interest shall accrue from the later of (i) the date
payment of a specified amount is demanded in writing, or (ii) the
date of the expenditure concerned."
C.4. Negotiation. When the PRP(s) responds to a demand letter
expressing interest in meeting with the Agency to discuss the
16/ The authority to issue demand letters under SARA has
been delegated to Regional Administrators. Program and legal
personnel should consult with their supervisors to determine who
has redelegated responsibility for preparing and issuing demand
letters in their Region.
22
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OSWER Directive No. 9832.13
Agency's claim, negotiations should be initiated and carried out
within a limited period of time. The time period should be
determined by the Region on the basis of factors affecting the
complexity of the negotiations (e.g., the number of potentially
responsible parties that will participate, the amount of the
claim). Further information on the development of a negotiating
team and related issues can be found in 1983 Cost Recovery
Guidance.
The Region may also decide to utilize alternative dispute
resolution techniques to achieve settlement. Arbitration, for
example, is specifically addressed in section 122(h)(2) of
CERCLA. Arbitration may be utilized for cases where total
response costs (excluding interest) do not exceed $500,000. (At
the time of issuance of this guidance, the Office of Enforcement
and Compliance Monitoring is drafting a regulation on procedures
for resolving small cases through arbitration.) Additional
information may be found in Guidance on the Use of Alternative
Dispute Resolution in EPA Enforcement Cases. August 14, 1987,
issued by the Office of the Administrator.
In those cases where the Region receives no response or an
unsatisfactory response to a demand letter, the Region must
decide whether to pursue cost recovery efforts further. See
section C.6, Consideration of Referral in the Event of No
Settlement, below.
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OSWER Directive No. 9832.13
C.5. Settlements. If negotiations are successful, agreements
will be formalized in an administrative document or a judicial
consent decree. The-Region nay enter a partial settlement with
some PRPs and seek to recover unreimbursed costs from non-
settlors. Where the Agency does enter into a partial settlement,
viable recalcitrant PRPs should be pursued as soon as practicable
for the remainder of the costs.
Administrative settlements17 may be entered into by the
Agency for cost recovery pursuant to Section 122(h) of SARA18.
Administrative settlements in cases where total costs of response
at a facility, excluding interest but including all future costs,
do not exceed five hundred thousand dollars may be signed by the
Regional Administrator without Department of Justice concurrence.
Pursuant to (122(1), the Agency must solicit public comment on
proposed 122(h) administrative settlements by placing a notice of
the settlement in the Federal Register. The comment period is
thirty days. Administrative settlements for cost recovery for
cases where the total cost of response on a site are expected to
exceed five hundred thousand dollars may only be entered into
l7/ The Office of Enforcement and Compliance Monitoring is
drafting guidance on the procedures to be followed for
administrative cost recovery settlements.
18/ Section 122(h) of CERCLA gives the Agency the authority
to settle cost claims administratively. Such settlements require
the prior written approval of the Department of Justice if total
costs of response at a facility exceed five hundred thousand
dollars (excluding interest).
24
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OSWER Directive No. 9832.13
with the advance concurrence of EPA Headquarters and the
Department of Justice. Administrative settlements are fully
enforceable pursuant to CERCLA §122(h)(3).19
Judicial consent decrees may require consultation or
concurrence with EPA's Office of Waste Programs Enforcement and
Office of Enforcement and Compliance Monitoring in addition to
the approval of the Department of Justice. See the Revision of
CERCLA Civil Judicial Settlement Authorities Under Delegations
14-13-B and 14-14-E. June 17, 1988, (OSWER Directive No. 9012.10-
a) , for information on settlement authorities and their
requirements.
C.7. Consideration of Referral in the Event of No Settlement.
In each case where the Agency has conducted a response action
under the authority of section 104 of CERCLA, the Agency must
make an affirmative decision to proceed or not to proceed with a
judicial cost recovery action. This applies to those sites where
no response or an unsatisfactory response to a demand letter was
received a* well as to those sites for which negotiations
occurred but were unsuccessful. The Region should have gathered
all th« information necessary to decide the final disposition of
19/ CERCTA »«ction 122(h)(3), Recovery of Claims, states
"If any person fails to pay a claim that has been settled under
this subsection, th« department or agency head shall request the
Attorney G«n«ral to bring a civil action in an appropriate
district court to recover th« amount of such claim, plus costs,
attorneys' fees, and interest from the date of settlement. In
such actions, the terns of the settlea«nt shall not b« subject to
review.H
25
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OSWER Directive No. 9832.13
the case. The relevant factors to be considered include:
(a) the amount of costs at issue;
(b) the strength of evidence connecting the potential
defendant(s) to the site;
(c) the availability and merit of any defense, (See
CERCLA §107);
(d) the quality of release, remedy, and expenditure
documentation by the Agency, a State or third
party;
(e) the financial ability of the potential
defendant(s) to satisfy a judgment for the amount
of the claim or to pay a substantial portion of
the claim in settlement;
(f) the statute of limitations; and
(g) ether cases competing for resources.
If upon review of the case on the basis of the above
factors, the Region decides not to pursue a cost recovery action,
the decision must be documented in a cost recovery close-out
memorandum.20 A close-out memorandum will provide documentation
for why EPA has not pursued cost recovery in a particular case,
and provide the Agency with information necessary for selecting
referrals and predicting revenues to the Fund in future years.
20/ See th« Guidance qn Documenting Decisions not to Take
Cost Recovery Actions. (OSWER Directive No. 9832.11).
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OSWER Directive No. 9832.13
Generally, the Regions should anticipate developing cases
for litigation for all sites where total costs of response exceed
two hundred thousand dollars and negotiations for settlement were
unsuccessful. Sites where total costs of response do not exceed
two hundred thousand dollars, and negotiations were unsuccessful,
are also candidates for referral consistent with the case
selection criteria discussed in Part II, above. The cases
selected for litigation involving sites where total costs of
response are less than two hundred thousand dollars should be
those where PRPs are recalcitrant, evidence linking PRPs to the
site is good, the case may be used to create good precedent (such
as a site where EPA issued a unilateral order, PRPs did not
comply, and EPA is likely to obtain a favorable ruling for treble
damages or penalties), or the case is otherwise meritorious.
A decision to proceed with a judicial action for cost
recovery requires the assembly of all documents associated with
the case including those necessary to substantiate that:
1) there im a release or the threat of a release of a
hazardous substance;
2) the> release or threat of release is from a
facility;
3) the release or threat of release caused the United
States to incur response costs;
4) the Defendant is in one or more of those categories
of liable parties in CERCLA section 107(a).
27
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OSWER Directive NO. 9832.13
These elements are discussed in Cost Recovery Actions under
the Comprehensive Environmental Response. Compensation, and
Liability Act of 1980. (OSWER Directive No. 9832.1) and
Procedures for Documenting Costs for CERCIA S107 Actions. (OSWER
Directive No. 9832.0-la). In addition, the referral should
anticipate the defense that the response was inconsistent with
the national contingency plan. The referral should comport with
the applicable guidance and include or reference the
administrative record, PRP search, and activity and cost
documentation. Evidence substantiating each element of proof
must be discussed in a referral package submitted to the
Department of Justice when proceeding with a judicial action.
Generally, referrals seeking the recovery of costs expended
in a removal action should occur no later than twelve months
after completion of the removal, whether or not the site is on
the National Priorities List21 and regardless of whether further
response action is to be taken. Exceptions to this policy may be
possible in certain instances for legitimate litigation strategy
reasons. For instance, where a remedial action is to be
initiated within three years of the completion of the removal, it
21/ Although sites on the National Priorities List will
have further costs, e.g.. costs of a remedial investigation and
feasibility study, the action for the recovery of removal costs
should be brought within a year of completion of the removal to
assure that we litigate the case while the evidence is most
readily available. See Cost Recovery Actions/statute of
Limitations. June 12, 1987 (OSWER Directive No. 9832.3-1A).
28
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OSWER Directive No. 9832.13
may be appropriate to combine an action for the recovery of the
removal costs with the action for the recovery of RD/RA costs.22
However, in no event should filing be delayed beyond the statute
of limitations.
22/ Where further response action is contemplated, the
Agency ordinarily seeks a declaratory judgment for future
response costs. See CERCIA section 113(g)(2).
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OSWZR Directive No. 9832.13
Part IV. COST RECOVERY PROCESS FOR REMEDIAL SITES
The remedial process in the Superfund program includes the
remedial investigation and feasibility study, remedial design,
and remedial action. Activities related to cost recovery must be
conducted in each phase of the remedial process in order to
maximize the potential for recovery of funds.
The cost recovery process for remedial sites23 includes the
following elements: the search for potentially responsible
parties (PRPs); the opportunity for PRPs to conduct the work; the
development of the administrative record; cost documentation; and
the timely issuance of demand letters. While the process for
remedial sites is similar to the previously described process for
removal sites, the level of effort of each element must be
increased over that for removal actions because of the greater
amount of money involved. Sites that proceed through a remedial
investigation and feasibility study and remedial design and
action will generally exceed the threshold level of two hundred
thousand dollars used in the removal cost recovery process.
Described below are the activities required for each of the
element* in the remedial cost recovery process and the timing of
each of th« activities.
23/ Where a site has more than one operable unit, cost
recovery activities described in the remedial process should be
conducted for each operable unit, where appropriate, since
operable units may be held to be separate actions for purposes of
cost recovery statute of limitations.
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OSWER Directive NO. 9832.13
A. Pre—Rqgfrd.ja.?- Cost: Recovery Activities
Activities that may be carried out in preparation for future
cost recovery actions prior to the initiation of a remedial
investigation and feasibility study (RI/FS) include the
potentially responsible party search, general notice, special
notice, negotiations, and the issuance of an administrative order
on consent for a PRP RI/FS. While each of these activities is an
integral part of the broader Superfund program, each has a
special significance in light of potential cost recovery actions.
A.I. The Potentially Responsible Party Search The
identification and location of potentially responsible parties is
central to all future enforcement activities, including cost
recovery actions. The PRP search will generate names of
potentially responsible parties as well -as the information to
link the PRPs to the site. This information is likely to serve
as.evidence in future judicial actions to prove the liability of
the defendants.
Concurrent with the NPL listing process, the Region should
initiate a'PRP search in accordance with the guidelines set out
in the Potentially Responsible Party Search Manual.
August 27, 1987, (OSWER Directive No. 9834.6). Fund-lead,
enforcement, civil investigators, and Office of Regional Counsel
staff should work closely together in the development of the PRP
search from the initial planning stages through the production of
the PRP search report. Ideally, the following activities should
31
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OSWER Directive No. 9832.13
be conducted prior to the initiation of the RI/FS to ensure that
all PRPS may be given general notice of their potential liability
well before they are given special.notice of the opportunity to
conduct the RI/FS: history of operations at the site; a title
search of the site property; Agency record collection and file
review; interviews with government officials; PRP status/PRP
history; records compilation; issuance of CERCLA 104(•)
letters/RCRA 3007(c) letters; financial status; PRP name and
address updates; identification of generators and transporters;
report preparation; and, an evaluation of the value of filing
notice of a lien on the site property. (The Guidance on Federal
Superfund Liens. September 22, 1987, (OSWER Directive No.
9832.12), provides guidance on the use of Federal liens to
enhance Superfund cost recovery.) The Region should rely on the
expertise of the civil investigator and the Office of Regional
Counsel and utilize available contract resources to conduct the
PRP search and prepare the PRP search report.
Sufficient information should be collected on all PRPs to
satisfy the special notice requirements of section 122 of
CERCLA.24 It possible, the PRP search should be completed prior
to the initiation of the RI/FS. In some instances, completion of
24/ CERCLA 1122(e)(l) identifies information that should be
included, to the extent it is available, in a special notice
letter. This information includes the names and addresses of
other PRPs, the volume and nature of the hazardous substances
contributed by each PRP, and a ranking by volume of the
substances at the facility.
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OSWER Directive No. 9832.13
all PRP search activities prior to the initiation of the RI/FS
will not be possible. For example, it may be necessary to
undertake an Rl to determine the source of contamination. In
other instances, the search for generators may be complicated or
"new" information may be discovered late in the process.
A.2. General and Special Notice Letters and Negotiations for a
PRP Remedial Investigation and Feasibility Study. Once PRPs have
been identified, the Region should issue General Notice Letters
to apprise PRPs of their potential liability. This should be
done as soon as possible after they have been identified. In
addition, information relating to names and addresses of other
PRPs, volumetric rankings and nature of substances should be
provided as soon as possible.
Special notice letters will provide PRPs with a specific
opportunity to negotiate terms of agreement concerning their
participation in the conduct of the RI/FS. Special notice
letters should also include a demand for payment of past costs if
a Fund-financed removal action was conducted at the site and a
demand letter has not Already been sent. Information regarding
the content and timing of general notice letters, special notice
letters, and negotiations for PRP RI/FS can be found in the
Interim guidance on Notice Letters. Negotiation, and Information
Exchange. October 19, 1987 (OSWER Directive No. 9834.10).
33
-------
OSWER Directive No. 9832.13
A. 3. Settlement: for PRP Remedial Investigation/Feasibility
Study. A settlement for PRP conduct of the RI/FS must include
the requirement that PRPs pay for cost incurred by EPA in
obtaining assistance from third parties in the oversight of the
RI/FS and may also involve the recovery of past costs incurred by
the Agency.
Where negotiations result in a settlement for a PRP RI/FS,
EPA will require the settling PRPs to commit in the settlement
agreement to pay the costs of oversight of the RI/FS including
extramural costs (contracts and interagency agreements) and
intramural costs (EPA payroll, travel, and other costs) on a
specified schedule. The Region should track reimbursement in
CERCLIS and contact the Regional Financial Management Officer to
set up an accounts receivable in the Financial Management System
(FMS) for the receipt of oversight costs.
In the case of those sites where removal actions have
occurred prior to the negotiation, and the cost recovery is not
being pursued on a separate track, additional provisions for
recovery of past costs or a reservation of EPA's rights to pursue
those costs should be included in the administrative order. If
some but not all past costs are recovered in the settlement, and
a reservation of the Agency's right to pursue all of the
remaining costs is included, the advance concurrence of the
Department of Justice under section 122(h)(l) of CERCLA will not
be necessary. Of course, if the settling PRPs agree to pay all
34
-------
OSWER Directive No. 9832.13
past costs, a claim is not being compromised and DOJ's prior
concurrence is not necessary.
Where negotiations do not result in settlement, the Agency
will proceed with a Fund-financed RI/FS.
B. Cost Recovery Activities During the Remedial Investigation/
Feasibility Study
The activities that occur during the remedial investigation
and feasibility study in support of future cost recovery actions
may include a supplemental PRP search, the development of the
administrative record, the documentation of activities and costs,
notice and demand letters, and negotiation for PRP remedial
design and action.
B.I. Documentation of Activities and Cost Accounting. The
documentation of activities and accounting of costs must occur
whether the remedial investigation and feasibility study are
being conducted by the Agency, a State, or the PRPs.
During a Fund-financed RI/FS, each organization involved
(e.g., EPA, a State, other Federal agencies, EPA's contractors-)
is responsible for keeping an accounting of it* activities and
the costs corresponding to those activities/items. Cooperative
agreements with States for State-lead, Fund-financed RI/FS's must
include requirements that States maintain documentation according
to standard EPA procedures for cost recovery. These records will
be assembled later during the RI/FS in preparation for
negotiations with PRPs for private-party remedial design and
35
-------
OSWER Directive No. 9832.13
action and may serve as evidence of costs incurred in future
judicial actions to substantiate cost recovery claims.25
When the RI/FS-is being conducted by the PRP(s), the lead
agency must carefully record the costs of all Fund-financed
activities associated with the oversight of that action. The
settlement agreement should specify the schedule for payment of
oversight costs throughout the RI/FS. Normally, the Agency will
issue a demand for payment at the end of a one year period
throughout the course of the PRP RI/FS for all costs incurred
during that year. Quality record keeping using CERCLIS is
essential since the Agency must be able to substantiate the
amount of money demanded and what activities were performed for
that amount. The Regional Financial Management Officer should
set up an accounts receivable in FMS for the receipt of oversight
costs.
B.2. Supplemental PRP Search. As the RI/FS proceeds, the Agency
should continue to develop the PRP search as necessary.
Additional PRP« found since the start of the RI/FS who did not
receive notice letters should be issued general notice letters as
soon as they are identified. This will give them an opportunity
to participate, to the extent feasible, in on-going work. The
evidence linking each PRP to the site should be fully reviewed by
the Office of Regional Counsel in anticipation of pursuing
25/ Cost documents are not part of the administrative
record for a site.
36
-------
OSWER Directive No. 9832.13
litigation against the PRP, and supplemented as necessary.
Again, the Region should ensure that all activities identified in
the Potentially Responsible Party Search Manual. (OSWER Directive
No. 9834.3) have been conducted or are planned. All sources of
information identified by the Region's civil investigator should
be thoroughly pursued.
If the PRP search indicates that there are no PRPs at the
site, the Region should prepare a close-out memorandum to
document the basis for a decision not to proceed with cost
recovery. If the PRPs are not financially viable, the Region
should review the merits of proceeding with cost recovery. See
the discussion of bankruptcy referrals in the Case Selection
Guidelines section for factors to consider in such cases.
B.3. Development of the Administrative Record. As in removal
actions, the development of an administrative record which will
support the selection of . >.e of the remedial alternatives is
critical to the cost recovery potential of a case. Section
113(j) of CERCIA limit* judicial review of issues concerning the
adequacy of a response .action to the administrative record. An
accurate and complete record, therefore, should simplify future
cost recovery actions. Section 113(k) requires that interested
persons be given the opportunity to participate in the
development of the administrative record. During the RI/FS,
whether conducted by a PRP, a State, or EPA, Regions should
develop the administrative record consistent with the applicable
37
-------
OSWER Directive No. 9832.13
procedures. (See Administrative Records for Decisions on
Selection of CERCIA Response Actions. May 29, 1987, OSWER
Directive #9833.3.)
B.4. Special Notice Letters and Negotiation for PRP Remedial
Design and Remedial Action. As the proposed plan and draft RI/FS
are made available for public comment, the Regions should again
send special notice letters to all identified PRPs to provide
them with an opportunity to negotiate regarding conduct of the
remedial design and remedial action (RD/RA).
The special notice letters for RD/RA should include a demand
for payment of past costs not yet reimbursed, e.g., the costs of
a Fund-financed RI/FS. The Region should determine total past
costs (to the extent possible), and subtract from those costs any
costs already reimbursed. The Region must ensure that the amount
of past costs demanded is qualified to account for costs incurred
but not yet paid by the Agency. Interest which has accrued on
amounts previously demanded should be included in the demand as
appropriate (see page 22).
C. Settlement for PRP Remedial Design and Action.
As mentioned above, past costs will be one of the subjects
of negotiation for PRP remedial design and action. The
negotiations will result in one of three outcomes: full
settlement, partial settlement, or no settlement. See the
Interim CERCIA Settlement Policy. OSWER Directive No. 9835.0. for
a complete discussion of the factors to consider when settling an
38
-------
OSWER Directive No. 9832.13
action under CERCIA. The cost recovery consequences of each of
these are discussed below.
C.I. Full Settlement. Where negotiations result in a full
settlement, the settling PRPs agree to conduct the work and
reimburse the Agency for past costs. In addition, the settling
PRPs will have agreed to reimburse EPA for future oversight
costs. The agreement will be formalized in a consent decree
which must specify the manner and timing of billings and payments
and be filed in the appropriate United States District Court.
For future oversight costs, EPA may be required to send demand
letters at regular intervals according to the schedule set forth
in the consent decree. The schedule for payment should be
recorded in the appropriate CERCLIS file. The Regional Financial
Management Officer must be advised that an account for receipt of
the recovered money should be established.
C.2. Partial Settlement. Where negotiations result in a partial
settlement, unrecovered costs should be sought from non-settlors
in a §107 judicial action. The referral of a case against non-
settlors should occur concurrent with referral of the consent
decree with settlors, or as soon as possible thereafter. This
will serve to highlight enforcement against the non-settling
PRPs.26 It the Region will not pursue the costs waived in the
settlement with the PRP», the ten point analysis justifying the
26/ Of course, this should take into account accrual of a
cause of action.
39
-------
OSWER Directive No. 9832.13
settlement for less than one hundred per cent should document the
basis for not pursuing the unrecovered costs. If a decision not
to pursue the unrecovered costs is made after the settlement
analysis has been prepared in final form, a close-out memorandum
should be prepared to .document the basis for that decision.27
C.3. No Settlement. Where negotiations do not result in any
settlement, the site classification will determine the next step.
For Fund-lead sites, unless a statute of limitations problem
is anticipated for the recovery of RI/FS costs, the Region should
proceed with Fund-financed remedial design and remedial action
before initiating an action for the recovery of RI/FS costs.
Consistent with applicable and relevant guidance, consideration
should be given to issuing unilateral $106(a) orders to
recalcitrant parties in order to encourage PRP response and set
up claims for treble damages and penalties.
For Federal enforcement-lead sites, where the remedial
action is not funded and the case is not settled, the Region
generally should issue a unilateral section 106 administrative
order and, where compliance is not forthcoming, immediately
thereafter (taking into account whether there is a funded RD)
refer the case for injunctive relief and past costs (combined
CERCLA f1106/107 judicial actions). The cost documentation must
be completed by the time of the referral to support the section
27/ See footnote 15, page 20.
40
-------
OSWER Directive No. 9832.13
107 claim. Again, see the 1983 Cost Recovery Guidance and the
1985 Cost Documentation Procedures Manual for details of
preparing the cost recovery portions of a case.
D. Coat Recovery Activities during the Remedial Design and
Remedial Action
By the time a site has reached the remedial design and
remedial action phases, much of the work for assembling a cost
recovery case has already been completed. Additional activities,
which will mainly consist of updating information collected
earlier, will depend upon the outcome of settlement negotiations-,
and the viability of the remaining case. Where the Agency has
agreed to a partial settlement, cost recovery activities to be
conducted may include those necessary in overseeing the PRP work
as well as those necessary for pursuing a judicial action against
non-settlors.
D.l. PRP RD/RA. Co«t recovery activities required during a PRP
RD/RA depend upon the type of settlement (i.e., full or partial)
and the specific provisions included in the settlement for
reimbursement of past costs and oversight costs. Any settlement
that includes reimbursement of EPA's oversight costs throughout
the course of the remedial design and action will require the
Agency to regularly document all costs associated with the
oversight function. Demand letters for oversight co«t» should be
sent according to the schedule set forth in the consent decree
and tracked in CERCLIS. The Regional Financial Management
41
-------
OSWER Directive No. 9832.13
Officer must be provided with a copy of the consent decree so
that an accounts receivable can be established in FMS and
payments tracked.
The Agency should continue to account separately for all
other EPA site-specific costs not attributable to oversight
(e.g.. costs associated with a separate operable unit which the
PRPs are not implementing) in the event that a judicial action
against non-settlors (or settlors) occurs.
D.2. Fund-Financed RD/RA. Fund-financed remedial design and
action will normally account for the largest site-specific
expenditures attributable to a site. Therefore, remedial design
and action costs provide the largest potential for return of
site-specific expenditures. This fact makes it essential that
the Agency devote significant resources to the prompt development
of cost recovery actions for remedial design and action costs.
a)Cost Documentation. There is a presumption that absent
full resolution, the Agency will proceed with judicial cost
recovery actions for all Fund-financed remedial actions and/or
unreimbursed costs unless a decision has been made not to pursue
cost recovery. In preparation for a referral, the Agency must
continue maintaining an accounting of all costs incurred on the
site, including costs incurred by Agency personnel and
contractors, and costs incurred through cooperative agreements
with States and interagency agreements with other Federal
agencies. The Cost Documentation Procedures Manual (1985)
42
-------
OSWER Directive No. 9832.13
provides details on cost documentation preparation for section
107 actions.
b) Demand Letters. As soon as practicable after the
completion of the remedial design, the Region should send demand
letters to all identified PRPs. The amount of money demanded
should include total past costs not yet recovered, and applicable
interest, plus a projection of the costs expected to be spent in
remedial action. While the demand letter should include the
projected costs, it should also state that the amount is an
estimate and is subject to change. Demand letters at this point
should not invite discussion on any subject but costs, i.e. .
negotiation on the selected remedial action will not be reopened
at this point.
c) Consideration of Referral in the Event of No Settlement.
Assuming that attempts at negotiation at this point are
fruitless, the Region must make a final determination of the
disposition of the case. The relevant factors to be considered
are the sane as those for removal action cases:
(a) the strength of evidence connecting the potential
defendant(s) to the site;28
(b) the availability and merit of any defense. (See
CZRCLA |107);
28/ In the case of large remedial actions with PRP searches
done early in the program, the PRP search should be reviewed and,
as appropriate, upgraded, before a decision is made to close-out
the case.
43
-------
OSWER Directive No. 9832.13
(c) the quality of release, remedy, and expenditure
documentation by the Agency, a State or third
party;
(d) the financial ability of the potential
defendant(s) to satisfy a judgment for the amount
of the claim or to pay a substantial portion of
the claim in settlement; and
(e) the statute of limitations.
If upon review of the above factors, the Region believes
that a judicial cost recovery action will not be fruitful, a cost
recovery close-out memorandum should be prepared and its issuance
documented in the appropriate CERCLIS field.
A decision to proceed with a judicial action for cost
recovery requires the assembly, of all documents associated with
the case including those necessary to substantiate that:
1) there is a release or the threat of a release of a
hazardous substance;
2) the release or threat of release is from a
facility;
3) th« release or threat of release caused the United
States to incur response costs.
4) the Defendant is in one of those categories of
liable parties in CERCLA section 107(a).
These elements are discussed in Cost Recovery Actions under
44
-------
OSWER Directive No. 9832.13
the fcomprehensive Environmental Response. Compensation.
Liability Act of 1980. (OSWER Directive No. 9832.1) and
Procedures for Documenting Costs for CERCIA S107 Actions. (OSWER
Directive No. 9832. 0-la) . In addition, the referral should
anticipate the defense that the response was inconsistent with
the national contingency plan. The referral should comport with
the applicable guidance and include or reference the
administrative record, PRP search, and activity and cost
documentation. Evidence substantiating each element of proof
must be discussed in a litigation report included in the referral
package submitted to the Department of Justice when proceeding
with a judicial action. At this point, the assembly of evidence
should merely require updating information previously assembled,
e.g.. the administrative record, cost documentation, the PRP
search report.
Referrals seeking the recovery of costs expended in a
remedial design and remedial action should occur concurrently
with the initiation of on-site construction of the remedial
action. RD/RA referrals should not affect the schedule of design
or construction. Where remedial design and remedial action are
divided into operable units, referrals should occur concurrent
with the initiation of each remedial action operable unit.29 The
29/ Section 113(g) of CERCIA provides that in cost recovery
actions under section 107 "the court shall enter a declaratory
judgment on liability for response costs or damages that will be
binding on any subsequent action or actions to recover further
45
-------
OSWER Directive No. 9832.13
Agency will defer beyond this date the filing of a remedial case
only in limited circumstances for technical or strategic reasons.
Once a case for the recovery of remedial action costs has
been referred to the Department of Justice, the Region must
periodically document on-going costs incurred and submit these
costs to DOJ. The litigation team should discuss the frequency
and timing of the periodic cost up-dates.
response costs or damages."
46
-------
-se-:.
.as- -=:;- DC 2D-5C
"968
9200
IEPA
Catalog of
Superfund Program
Directives
Interim
Edition
-------
Tnis Interim Catalog is designed to supplement the Office of Solid waste
and Bnergency Response (OSWER) Directives System publications by providing
a quick reference to the most current policy, procedural and technical
directives governing the Office of Emergency and Remedial Response's (OEBR)
Superfund Program.
•Die Catalog is divided into four sections. The first contains a listing of
documents by program and key word. Section II is organized numerically and
abstracts all final documents. Section III contains a list of draft
documents, with projected date for final release and an abstract, if
available. Finally, an index lists all documents numerically.
This interim version covers all documents through July 31, 1988. Regular
supplements will encompass certain planned changes for managing guidance,
as well as a complete update of new issuances.
Copies of the Catalog may be obtained from the Superfund Docket at
202-382-6940. Questions or information about the Catalog may be directed
to the Policy and Analysis Staff, Office of Program Management, OERR,
Attention: Betti VanEpps, FTS or 202-475-8864.
-------
OF QOBUSNTS
Key Word Cross-Reference
Section 1 - Catalog of Superfund Program Directives
By Program Responsibility And Key Word 1
Section 2 - Document Abstracts 16
Section 3 - Documents In Final Draft Development 42
Numerical Index To Superfund Program Directives
-------
Pace
Alternative Water Supplies Remedial 6-13
Analytical, Laboratory
Support and Sanpling Instructions .... Pre-Remedial 4-5
Bibliographies Policy/Admin. 1-3
Claims Remedial
Renovai 14-15
Clean Water Act Interface Remedial 6-13
Compliance with Other Laws (ARARs) .... Policy/Admin. 1-3
Comunity Relations Remedial 6-13
Contracts Policy/Admin. 1-3
Remedial 6-13
Removal 14-15
Costs and Cost Sharing Remedial 6-13
Removal 14-15
Data Management Policy/Admin. 1-3
Remedial 6-13
Delegations Policy/Main. 1-3
Documents Management Policy/Admin. 1-3
Drinking Water Renewal 14-15
Emergency and Expedited Response Actions . Renovai 14-15
Federal Facilities Policy/Admin. 1-3
RqnpdltO 6-13
Field Operating Guides (Health, Safety) . Remedial 6-13
Financial Management . . pamarMai 6-13
Ronoval 14-15
Flood Plains and Wetlands Policy/Main. 1-3
Fund-Lead Projects Remedial 6-13
July 31, 1988
- 1 -
QSWER Directive 9200.7-01
-------
Key Word Cross-Reference, continued
Groundwater . Policy/Main. 1-3
Remedial 6-13
Hazardous Site Ranking System (HRS) . . . Pre-Remedial 4-5
Interagency Agreements Policy/Attain.. 1-3
Mining Waste Policy/Maun. 1-3
Methane Sites Policy/AAnin. 1-3
Modeling Remedial 6-13
National Contingency Plan (NCP) Policy/Mmin. 1-3
National Priority List (NPL) Pre-Remedial 4-5
Off-Site Remedial b-13
Preliminary Assessments & Site
Investigations (PA/SI) Remedial 6-13
Program Implementation Policy/Adnin. 1-3
Removal 14-15
Public Health Pre-Remedial 4-5
Quality Assurance Policy/Mmin. 1-3
RCRA/CERCLA Interface Remedial 6-13
Removal 14-15
Records of Decision Remedial 6-13
Records MaiiayfmaiL Removal 14-15
Risk and Bqposure Assesanent Pre-Remedial 14-15
Recycling Ronedial 6-13
Regional Project Management Remedial 6-13
Remedial Response, Initiation of Remedial 6-13
Remedial Action Start Mandate Remedial 6-13
July 31, 1988 - 2 - OSWEB Directive 9200.7-01
-------
ley Wort Cross-Reference, oontiiued
Pace
Remedial Investigation/Feasibility
Studies (RI/FS) Remedial 6-13
Remedial Design/Remedial Action (RD/RA) . Remedial 6-13
SARA Implementation Pre-Remedial 4-5
Selection of Remedy B«npfljal 6-13
SITE Program Remedial 6-13
Site Operations Planning Remedial 6-13
State Program Management Remedial 6-13
Statutory Issues Removal 14-15
Technical Assistance Grants Program . . . Remedial 6-13
Technologies Remedial 6-13
July 31, 1988 - 3 - OSWER Directive 9200.7-01
-------
SECTION 1 - CATALOG OF SUPBgUND PROGRAM DIRECTIVES
BY PROGRAM RESPONSIBILITY AND KEY NDRD
POLICY AND AZKNISTRATION
9200.7-01 Catalog Of Superfund Directives (8/88), page 17
9380.1-02 Hazardous Waste Bibliography (10/9/86), page 41
-aMg (ABARS)
9234.0-05 Interijti Guidance On Conpliance With Applicable Or Relevant
And Appropriate Requirements (7/9/87), page 20
9234.1-01 CERCLA Conpliance With Other Laws Manual (Volumes 1 and 2)
(Draft), page 42
9234.1-03 CERCLA Conpliance With Other Laws Manual (Volme 3) (Draft),
page 42
Contracts
9242.3-05 RIM II Contract Award Fee Performance Evaluation Plan
(7/25/84), page 21
9221.0-02 CERCLIS Data Handling Support Policy Statement (3/31/86),
page 17
9012.10 Redelegations Of Authority Under CERCLA And SARA (5/25/88),
16
9260.1-09 Delegations Of Remedy Selection To Regions (Under Delegation
*14-5) (3/24/86), page 23
9260.3-00 Delegations Of Authority Under n»e Federal Water Pollution
Control Act (PVPCA) Applicable To Bie Superfund Program
(4/16/84), page 23
July 31, 1988 - 1 - OSWER Directive 9200.7-01
-------
policy anA Administration, continued
9200.4-01 Guidelines For Producing Superfund Docunents (2/9/87),
page 17
9272.0-01 Inpiementation Of CERCIA Strategy At Federal Facilities
(4/2/84), page 23
9272.0-03 Responsibilities For Federal Facilities (8/19/85), page 24
9272.0-04 Federal Facilities (8/19/85), page 24
9272.0-05 Responsibilities For Federal Facilities (8/26/85), page 24
Wetlands
9280.0-02 Policy On Flood Plains And Wetlands Assessments (8/85),
page 25
9295.1-01 Menorandun Of Understanding Between ASTER And EPA (4/25/85),
page 27
9295.2-02 Joint CORPS/EPA Guidance (6/24/83), page 27
9295.2-03 interagency Agreement Between Corps Of Engineers And EPA IT
Executing P.I. 96-510 (CERCIA) (12/3/84), page 27
9295.5-01 MBflorandun Of Understanding (MDU) Between FQft And EPA For
Die Implementation Of CERdA Relocation Activities Under
PL 96-510 (4/5/85), page 28
9295.5-02 implementation of EPA/FIMA Mepoianflan Of Understanding
On CERCLA Relocations (6/14/85), page 28
9234.0-04 Applicability Of BCBA Requirenents To CESOA Mining waste
Sites (8/19/86), page 20
July 31, 1988 - 2 - OSWER Directive 9200.7-01
-------
Policy v™* Mtadnistration, con*•?>•»«*<
9360.0-06A Relationship Of de Ranoval And Ranedial Program Under
Revised NCP (3/10/86), page 37
Tnnli
9 200. 3-0 LA Super fund Conprehensive Accomplishments Plan
Manual (SCAP) (FY-88) (10/1/87), page 16
9200.3-02 Inpleraentation Strategy For Reauthorized Superfund: Short
Term Priorities For Action ( 10/24/86 ) , page 16
9200.3-05 Flexibility In de FY-88 Superfund Regional Bctranural
Operating Plan (6/7/88), page 16
9200.1-05 Quality Assurance Plan For Superfund (Draft), page 42
July 31, 1988 - 3 - OSWER Directive 9200.7-01
-------
9240.0-01 User's Guide To The Contract Laboratory Program (8/1/84),
page 20
9240.0-02 Analytical Support For Superfund (3/20/86), page 21
9355.0-03 Uncontrolled Hazardous Waste Site Ranking (3/31/88), page 33
9320.1-02 Guidance For Establishing THe NPL (6/28/82), page 28
9320.1-05 RCRA/NPL Listing Policy (9/10/86), page 28
9320.1-06 RCRA Special Study Waste Definitions: Sites Requiring
Additional Consideration Prior To NPL Proposal Under SARA
(3/10/87), page 29
9320.1-07 Interim Guidance For Consideration Of Sections 105 (g) And
125 Of SARA Prior To NPL Proposal Of Special Study Waste
Sites (8/21/87), page 29
9320.1-08 Listing Of Municipal Landfills On NPL (10/24/86), page 29
9320.1-09 Listing Of Municipal Landfills On NPL (8/21/87), page 29
9320.3-01 Guidance For Updating Bie NPL (5/12/83), page 29
9320.3-02 Instructions For Pronulgating NPL Update (1/18/84), page 30
9320.3-03 Procedures For Updating One NPL (5/23/84), page 30
9320.3-04 Guidance For Proposed NPL Update «3 (2/10/84), page 30
9200.6-02 NPL Docket Guidance (Draft), page 42
9320.3-05 NPL Information Update *4 (4/38/85), page 30
9320.3-06 Updating tttt NPL: Update *€ Proposal (9/17/85), page 30
9320.4-01 Interim Information Release Policy Systems - A Users Manual
(4/18/85), page 30
JUly 31, 1988
- 4 -
OSUER Directive 9200.7-01
-------
, continied
Pro T A«ri navrv nd Site
9345.0-01 Preliminary Assessment (PA) Guidance FY-1988 (2/12/88),
page 32
9345.1-02 Expanded Site Inspection (SI) Transitional Guidance For
FY-88 UO/1/87), page 32
9285.4-01 Superfund Public Health Evaluation Manual (10/1/86), page 26
9285.4-02 Guidance For Coordinating ASTER Health Assesanent Activities
With The Superfund Remedial Process (5/14/87), page 27
9285.4-03 Health Assessnents By ASTDR IN FY-88 (4/7/88), page 27
9285.5-01 Superfund Exposure Assessment Manual (Draft), page 43
9285.6-01 Superfund Risk Assessment Information Directory (12/17/86),
page 27
9345.2-01 Pre-Renedial Strategy For inplenenting SARA (2/12/88),
page 32
July 31, 1988 - 5 - OSWEB Directive 9200.7-01
-------
9355.3-02 Guidance For Providing Alternative Water Supplies (3/1/88),
page 33
Ctaimc
9225.0-02 Forwarding Claims To Headquarters (4/25/84), page 17
9330.2-04 Discharge Of wastewater From CERCLA Sites Into PO1WS
(4/15/86), page 31
9230.0-02 Superfund Connunity Relations Policy (5/9/83), page 18
9230.0-03 Connunity Relations Handbook (Final) (2/86), page 18
9230.0-03A Ccnnunity Relations Activities At Superfund Biforcanent
Sites - Interim Guidance (3/22/85), page 18
9230.0-03B Comnunity Relations In Superfund - A Handbook (Interim
Guidance) (6/88), page 18
9230.04 Connunity Relations Guidance For Evaluating Citizen Concerns
At Superfund Sites (10/17/83), page 19
9230.05 Connunity Relations Requirements For Operable-Units
(10/2/83), page 19
9242.5-01 Procedures Manual For Superfund Connunity Relations
Contractor Support (Draft), page 42
July 31, 1988 - 6 - OSttER Directive 9200.7-01
-------
Biantial Program, oontiiued
9242.3-07 inpienentation Of TJie Decentralized Contractor Performance
Evaluation And Award Fee Process For Remedial program
Contracts (3/9/87), page 22
9250.1-01 Policy On Cost-Sharing At Publicly-Owned Sites -(3/30/83),
page 22
9250.3-01 Waiver Of 10* Cost Snare For Remedial Planning Activities At
Privately-Owned Sites (5/13/83), page 22
9250.3-02 Guidance On Implementing Waiver Of 10t Cost Sharing For
Remedial Planning (6/3/83), page 22
9345.0-02 Guidance For Low and Medium Cost Site Discovery Activities
(Draft), page 43
9355.0-10 Remedial Action Costing Procedures Manual (9/1/85), page 34
9355.07B Data Quality Objectives Development Guidance On Remedial
Response Actions (Two volumes! (3/1/87), page 34
Facilities
9272.0-02 Initial Guidance On Federal Facilities ERCIA Sites
(12/3/84), page 23
9318.0-04 Coordination Between Regional Superfund Staffs And Office Of
Federal Activities (OFA) Regional Counterparts On CERCLA
Actions (10/29/84), page 28
July 31, 1988 - 7 - OSWER Directive 9200.7-01
-------
contiiued
rift id fliTiifl^Un PuirtRsi Hftftltfii 5af,fftY % i
9285.1-01 standard Operating Safety fluid* Manual (11/19/84), page 25
9285.2-01 Field Standard Operating Procedures Manual #4 Site Bitry
( 1/1/8 j) page 25
9285.2-02 Field Standard Operating Procedures Manual #7 -
Decontamination Of Response Personnel ( 1/1/85 ) , page 25
9285.2-04 Field Standard Operating Procedures Manual f8 - Air
Surveillance (1/1/85), page 26
9285.2-05 Field Standard Operating Procedures Manual *6 - Work Zones
(4/1/85), page 26
9285.3-01 Field Standard Operating Procedures Manual t9 - Site Safety
Plan (4/1/85), page 26
9285.3-02 Occupational Health Technical Assistance And Enforcement
Guidelines For Superfund, page 26
9285.3-02 Employee Occupational Health & Safety (7/7/87), page 26
9355.0-14 A Conpendiuni Of Superfund Field Operations (12/1/87),
page 35
9275.2-01 Remedial Financial Management Instructions (9/21/84),
page 24
9355.1-01 Federal Lead Renedial Project Management Manual (12/1/86)
page 36
9355.2-01 State Lead Renedial Project Manual (9/30/87), page 36
9355.1-03 Terminating Contracts For Superfund Fund-Lead Renedial
Action Projects (Draft), page 44
July 31, 1988 - 8 - OSWER Directive 9200.7-01
-------
9355.0-23 Interim Guidance On Funding For Ground Water And Surface
Water Restoration Actions (10/26/87), page 35
9283.1-01 Recoranendat-ons For Groundwater Remediation At Die
Millcreelc, «msylvania Site (3/24/86), page 25
9283.1-02 Guidance Gn Remedial actions For Contaminated Groundwater
At Superfund Sites (Draft), page 43
9355.0-08 Modeling Remedial Actions At Uncontrolled Hazardous Waste
Sites (4/1/88), page 34
Off-Site
9330.1-01 Requirements For Selecting An Off-Site Option In A Superfund
(V28/83), page 30
9330.2-05 CERCLA Off Site Policy: Providing Notice To Facilities
(5/12/86), page 31
9330.2-06 O5CLA Off Site Policy: Eligibility Of Facilities in
Assessment Monitoring (7/28/86), page 31
9330.1-02 Evaluation Of Program And Enforcement-Lead Records Of
Decision (RODS) For Consistency With RCRA Land Disposal
Restrictions (12/3/86), page 31
9347.0-0.1 Interim RBA/CERCLA Guidance On Non-Contiguous Sites And
On-Site Management. Of Waste Residue (3/3/86), page 33
9347.0-02 Epplenentation Guidance For Solvent Dioodn, And California
List Wastes Subject To HCRMOWA Land Disposal Restrictions
(Draft), page 44
July 31, 1988 - 9 - 03UER Directive 9200.7-01
-------
rrt<; n-f
9340.2-01 Preparation Of Decision Documents For Approving Fund-
Financed And EOT RRnMlal Actions Under CERCLA (2/27/85) ,
page 32
9335. 3- O2 Guidance On Preparing Superfund Decision Doojnents; Bie
Proposed Plan And ROD (Draft) , page 43
9355.0-21 Additional Interim Guidance For FY-87 Records Of Decision
(7/24/87), page 35
9380.2-04 Decision Criteria For Recycling Wastes From O38CLA Sites
(Draft), page 44
9355.1-02 RPM Primer (9/30/87), page 36
9242.3-03 Procedures For Initiating Remedial Response Services
(7/6/84), page 21
9355.0-24 OSWB Strategy For Management Oversight Of Hie RCRA/CEBCLA
Renedial Action Start Mandate (12/28/87), page 35
9355.0-04* Superfma Remedial Design And Remedial Action (RD/RA)
Guidance (6/1/86), page 33
July 31, 1988
- 10 -
OSftBt Directive 9200.7-01
-------
Llitv Starlies (
BIZESJ
9340.1-01 Participation of Potentially Responsible Parties (PRPS) In
Development Of Remedial Investigations and Feasibilities
Studies (RI's and FS's) (3/20/84), page 31
9355.0-05C Guidance On Feasibility Studies (FS) Under CERCLA (6/1/85),
page 33
<^55.0-06B Guidance On Small a 1 Investigations (RI's) Under CERCLA
(6/V85), page 34
9355.0-20 HI/PS Inprovenents (7/22/87), page 36
9355.3-01 Guidance For Conducting Remedial Investigations (RI) And
Feasibility Studies (FS) Under CERCIA (Draft), page 44
9355.3-05 Hl/FS IspTOvenents Follow-Up (4/25/88>, page 36
Selactlcn of
9355.0-19 interim Guidance On Superfund Selection Of Reoiedy (2/1/86),
page 35
9380.2-03 Superfund Innovative Technology Evaluation (SITE) Program
Strategy And Piuyiaai Plan (12/1/86), page 41
9380.2-02 Site Operations Plan (Draft), page 44
July 31, 1988 - 11 - OSWEB Directive 9200.7-01
-------
9375.0-01 Guidance In Preparation Of A Superfund Memorandum Of
Agreement (SJDA) (Draft), page 44
9375.1-06 At»ai i Of Cooperative Agreements ID Political Subdivisions
(2/12/87), page 39
9375.1-09 Interim Guidance On State Participation In Pre-Renedial And
Rmpdial Response (7/21/87), page 40
9375.1-10 Involvement Of Indian Tribal Governments In The Superfund
Pre-Remediai And Rmariial Piuyiam (Draft) , page 44
9375.1-11 State Procurement under Superfund p^nMlai cooperative
Agreements (7/88), page 40
9375.1-12 State Access To EPA Contractors During P««tdiai Process
(4/27/88), page 40
9375.2-01 State CORE Piuyidm Funding Cooperative Agreements
(12/18/87), page 40
9200.3-04 Resource Distribution for TAG Grant Pvuuidiu (Draft), page 42
9230.1-01 Interim Guidance On Technical Assistance Grants For Public
Participation (3/26/86), page 19
9230.1-02 Technical Assistance Grants Piuyiam Activities Prior To
Issuance Of Interim Final Rule (1/11/88), page 19
9230.1-03 Citizens Guidance Manual For The Technical Assistance Grant
Program (6/88), page 20
9230.1-04 Regional Guidance Manual For The Technical Assistance
(7/88), page 20
9345.0-03 Guidance For Special Study Activities (Draft), page 43
July 31, 1988 - 12 - OSWER Directive 9200.7-01
-------
9380.0-02 Slurry Trench Construction For Pollution Migration
Controls (2/1/84), page 40
9380.0-03 Guidance rcr Cleanup Of Surface Tank At id Drum Sites
(5/28/85,, page 40
9380.0-04 Remedial Action At Waste Disposal Site- Handbook (Revised)
(10/1/85), page 40
9380.0-05 Leacnate Plume Management (11/1/85), page 41
9380.0-06 Guidance Document For Cleanup Of Surface Impoundment Sites
(7/17/86), page 41
9380.2-05 Guidance on Differentiating Alternative Technologies,
page 44
July 31, 1988
- 13 - OSH&R Directive 9200.7-0}
-------
BEKXAL PBDSB*!
9225.0-03 Notification Of Restrictions On Reimbursement Of Private
Party Costs (11/25/85), page 18
9242.2-0IB Emergency Response Cleanup Services (ERCS) Users' Manual
(10/20/87), page 21
9242.4-01A Technical Assistance Team (TAT) Contract Users' Manual
(9/V87), page 22
9250.2-01 Policy On Cost-Sharing Of Inmediate Removals At Publicly
Owed Sites (3/30/83), page 22
9360.1-01 Interim Final Guidance On Removal Action Levels At
Contaminated Drinking water Sites (10/6/87), page 39
9360.0-10 Expedited Response Actions (7/8/86), page 38
9360.0-15 Role Of Expedited Response Action (ERAS) Under SARA
(4/2V87), page 39
9380.2-01 Draft Alternative Treatment/Disposal Technology Guidance
For Removal And Expedited Removal Actions, page 44
9275.1-01 Removal Financial MJii
24
nu Instructions (7/31/84),
9360.0-08 Removal Actions At Methane Release Sites (1/23/86), page 38
July 31, 1988
- 14 -
Directive 9200.7-01
-------
9360.0-03B Superfund Removal Procedures, Revision #3 (2/88), page 37
9360.0-14 Use Of Expanded Removal Authority 1t> Address NPT And
Proposed NFL Sites (2/7/87), page 39
9360.0-18 Ranoval Program Priorities, 3/31/88, page 39
9360.2-01 Model Program For Removal Site File Management (7/18/88),
page 39
9J60.0-12 Guidance On Implementation Of The Revised Statutory Limits
On Removal Actions (4/6/87), page 38
9360.0-13 Guidance On Implementation Of The "Contribute To "Die
Efficient Remedial Performance" Provision (4/6/87), page 38
July 31, 1988
- 15 -
OShER Directive 9200.7-01
-------
Redelegation Of Authority Hatter OSCLA and SARA
9012.10 5/25/88 - OPM/PAS 41 pages
Complete set of new and revised redele-gations of authority regardina
activities under Ch'Kl.'lA and SARA. Published under the signature of the
AA/OSHER, it is the current and definitive delegations document for thes*
authorities. Attachment A contains rede legations of authority to tak*»
specific actions. Attachment B designates responsibilities to exercist
concurrence, consult or receive notice.
(No. to be added) 9/13/87 - OFM/PAS 68 pages
TSiis document, signed by the^ Administrator and transmitted under the
signature of the Director, OERR on 9/24/87, contains the complete set of
final new and revised internal delegations of authority implementing the-
provisions of SARA. It may be requested with the Redelegations, listed
above.
lisneents Plan Kraal (SCAP) (PT-88)
9200.3-01A 10/1/87 - OTM 240 pages
Provides guidance to the agency and its program managers for the projected
acconplishnents for the current, fiscal year. It is used for budgeting,
resource allocation, and piuyiaia monitoring throughout the fiscal year.
Prepared annually.
loplenentation Strategy For Reauthorized Superfund: Short Tea Priorities
for Action
9200.3-02 10/24/86 - OR! 24 pages
First in a series of •eoDranda providing direction for implementing the
Superfund yiuyiaa under SARA. Provides basic instruction on initial
priori-tie* for yiuyiaa implementation and considerations that must be tafcen
into account under SARA. Addresses the uanageaent of on-going remedial and
removal response actions, both Fund and Enforcement, as affected by SARA.
Flexibility In *ff^» FT-S1 ftjtw^fug Regional Fii i eeii il Operating Plan
9200.3-05 6/7/88 - OEM 6 pages
Intended to assist piuyidm managers in effective utilization of their FY-88
extramural operating funds.
July 31, 1988 - 16 - OSUER Directive 9200.7-01
-------
oii «vn i no* yor Producing Superfund
9200.4-01 2/9/87 - ORVE&S 12 pages
First in a series of planned guidances designed to organize and institu-
tionalize the composition techniques, publication and distribution pro-
cedures to be followed in developing documents that are usable, readable
and available. Efcphasis is on concise, well-referenced documents. This
specific guideline addresses issues of availability, cross referencing,
indexing, and follow-up contacts. Writing techniques are suggested that
can result in streamlined documents written in clear English that provide
an appropriate level of detail. Format dng suggestions .are made to
facilitate condensation for use in field marjals or electronic indexing or
filing.
Catalog Of ^*pTl\gi3 PMMJI ,• Directives (Tn»y<» version.)
9200.7-01 8/88 - OEM/PAS 56 pages
Bibliography in its interim format that will serve as an index and abstract
catalog to assist the user in selecting the most current Superfund doc-
uments best suited for a particular need. Final directives are separated
from draft documents. All are indexed by program responsibility, key word,
OSUER number and title, and contain brief abstracts of content, "mis issue
covers all documents through 7/31/88. Bie final version, expected early in
FY-89, will acxin'ass planned changes for managing guidance. The catalog
is designed for loose-leaf maintenance with quarterly updates.
Data ««n*-n*g Support Policy
9221.0-02 3/31/86 - OHJflCS 2 pages
Statement of present, policy regarding management of the data handling
support contract for L'mL'LTS provided under contract by Computer Sciences
Corporation (CSC).
Forwarding **!*<•« To Headquarters
9225.0-02 4/25/84 - HSCD 1 page
Sets a sr*rlfif> tin* frane within which claims, inquiries regarding claims,
and requests for yn> authorl»tig" must be forwarded to Headquarters.
July 31, 1988 - 17 - OSWR Directive 9200.7-01
-------
Notification Of Restrictions C*i p«^ii*«"'m»""n of Private Party Costs
9225.0-03 11/25/85 - ERD 3 pages
Directs Regions to ensure that affected coonunities are informed of
restrictive provisions of CERCLA regarding private party reimbursements for
removal costs. When a removal action that affects private residents is
approved, the OSC shall attempt to notify then that the expenses they incur
are incurred at their risJc and expense, and are not reimbursable by the
Federal government. OSC's are cautioned not to make statements that can be
construed by connunity members as promises by EPA to reimburse for c_ean-up
costs.
Superfund CoHmity a»ia»-<»To^ Policy
9230.0-02 5/9/83 - HSCD 5 pages
Articulates the agency policy for comamity relations activities that oust
be an integral part of every Superfund financed remedial or removal action.
Serves as an introduction to the more detailed handbooks that provide
specific, detailed direction for conducting viable camunity relations
activities at Superfund sites.
coBnunity Relations ^M*! •y>^ (Final) Manual
9230.0-03 1986 - HSCD 146 pages
Represents the agency's policy and jJioyidui guidance for developing and
implementing community relations piutjrams at Superfund sites. 15* handbook
is intended for use by States, EPA staff, and other Federal agencies.
Offers step-by-step procedures for developing and managing an effective,
site-specific coonunity relations pi'uyram. Chapters include connunity
relations during removals and remedial response during enforcement action.
Examples of coonunity relations techniques and sample plans are provided.
mere are also instructions for administering a community relations program
and various reporting formats.
Ccnunity *»i»t*fM Activities At S^etfund Fiifini iauii sites - Interia
9230.03a 3/22/85 - HSCD 15 pages
Describes now to conduct canunity relations piu>jj.4u» in the course of
enforcement actions toil* reserving the integrity of the enforcement
process.
July 31, 1988 - 18 - OSHER Directive 9200.7-01
-------
Halations In S^erfund - A BandLooJc (Interim Guidance)
9230. 03B 6/88 - HSCD Manual
Applicable to all response actions conducted under OSCLA, whether
performed by EPA, other Federal agencies, or state governments. Provides
policy requirements for coordinating activities at Superfund sites and
additional techniques and guidance that can be used to supplement and
enhance a basic comunity relations program. mis is a complete revision
of the 9/83 version. Contains new material and revisions to reflect SARA
amendmants and EPA policies issued since 1983.
CoMunity Relations fs^'<-m« * For Evaluating FM^SM^ Concerns At
Sites
9230.03 10/17/83 - HSCD 13 pages
Guides Regions and State Comunity Relations staffs in conducting and
evaluating on-site discussions with citizens and local authorities prior to
non-«nergency Superfund response actions.
Comranity g»i*Hnnff RfljuJLmERts For Operable
9230.05 10/2/83 - HSCD 4 pages
Discusses the impact on comunity relations efforts of the concept of
dividing remedial activities at a site into operable units as defined in
the amended NGP (50 FR 47911, 11/20/85). No major changes are required in
the planning and implementation of Superfund community relations.
Interia Guidance On Technical Assistance Grants (TUG) For Public
9230.2-02 3/26/86 - HSCD 10 pages
Supplies preliminary assistance for persons involved in early stages of
managing TAG grants for public participation. Win be updated as the
program evolves*
Activities Prior To
Technical Assistance Grants (9G)
9230.1-02 1/11/88 - HSCD 8 pages
Supplies additional interim information for managing the TAG proyiaui prior
to rrn"*'>1 jBTlfTi of final rulcnaJcing.
July 31, 1988 - 19 - OSWER Directive 9200.7-01
-------
Citizens fltrirtanry Manual For "Die Technical Assistance (IftG) Grant Prograa
9230.1-03 6/88 - KSCD 129 pages plus appendices
Provides a complete set of instructions for citizens interested in
Technical Assistance Grants. Includes a step-by-step guide to applying for
and managing the grant and all forms required by EPA with sauples of
completed forms. The manual will be current for the TAG Program during its
operation under the Interim Final Rule for section 117(3) of CERCLA and
will be revised upon publication of the Final Rule (expected in 1989. )
.regional Orcirtanr* Namai For The Technical AM-i«»ane» cac) Grant Program
9234.1 0* 7/38 - HSCD 84 pages
Provides guidance to Regional staff who are managing the Technical
Assistance Grant Piuyraa and other Regional staff for use as a reference
about the proyiaiu. Explains the piujiaui, responsibilities of key staff,
the role that States play in the yrutjiaui, and all administrative procedural
requirements for the application and award, procurement, and fiscal
management processes.
Applicability Of KB* ReqoLnmuua To CHSZA Mining Waste Sites
9234.0-04 8/19/86 - OPM/PAS 11 pages
Clarifies use of Subtitle 0 and/or C of RCRA for developing remedial
alternatives at CERCLA mining waste sites in light of a July 3, 1986 final
determination on regulation of mining waste.
Interim Guidance on manilam* With pnu Irani* or Relevant And Appropriate
(ARAR) Requirements
9234.0-05 7/9/87 - OBJ/PAS 12 pages
Addresses the requirement in CERCLA, as amended by SARA, that remedial
actions comply with applicable or relevant and appropriate requirements
(ARARs) of Federal lavs and more stringent, promulgated state laws.
Describes how requirements are generally to be identified and applied and
specifically dlscusstg com J lance with State requirements and certain
surface water and groundwater standards.
User's Ckddi TO The Contact Laboratory Program
9240.0-1 12/86 - HSED 250 pages
Organic and inorganic analytical program description that outlines the
requirements and analytical procedures of new CLP protocols developed from
technical caucus ..'•omnendations. Reflects the status of the pioynui as of
1996.
July 31, 1988 - 20 - OStfflR Directive 9200.7-01
-------
Analytical Support For Superfml
9240 ..0-02 3/20/86 - HSBD 7 pages
Memorandum that reviews alternative Superfund sample analysis resources
available to the Regions, provides general guidance in the use of these
resources, and requests that each Region manage and monitor its analytical
support services. Describes the two principal sources of Superfund program
analytical support as the Regional laboratories and the Contract Laboratory
Program (CLP). Additional contractor sources available include Remedial
(REM) , Field Investigation (FIT) , and the Environmental Sendees Assistance
Team (ESAT). Generally, CLPs are to be used for analysis requiring
consistent methodology, JG-40 day turnaround, and data of known and
documented quality. CLP's Special Analytical Services can be used to
analyze unusual matrices. Remedial and Removal contract analytical
resources include fixed and mobile laboratory support. Choice of analy-
tical support should be driven by data requirements. Users should be
sensitive to costs, definition of work, enforcement needs, and quality
assurance requirements. Describes how Regions should develop their own
integrated management and tracking systems to monitor these resources.
Cleanm Services (DCS) users' Kmual
9242. 2-0 IB 10/20/87 - ERD 240 pages
Provides a comprehensive guide to using emergency response cleanup services
contractors at Superfund sites.
Procedures For T«< -Hat-ing »*••»« ai Rinpnnse Services
9242.3-03 7/6/84 - HSCD 21 pages
Streamlines work plan development process. Develops a more comprehensive
site specific work plan and reduces dead time during work plan reviews.
Provides latitude to Regional site managers to identify approved initial
tasks on a site-by-site basis.
KB! H Contract Temrfl Fee PerfoaHnce Evaluation Plan
9242.3-05 7/25/84 - C€M 50 pages
Defines procedures for the REM II CUIUJCL Award Fee Performance Plan.
Describes fee structure and evaluation process and includes copies of the
forms needed to manage this contract. Procedures are essentially the same
as the revised REM/TIT procedures, except that each region must assess the
itractor's regional management activities.
July 31, 1988 - 21 - OSWER Directive 9200.7-01
-------
leplevaitaticn Of n* Decentralized Contractor Perforjence Evaluation Ml
Award Fee Process For ReBedial Progran Contracts
9242.3-07 3/9/87 - HSCD 16 pages
Delegates site-specific award fee decisions to the Regional Division
Directors. Distributes standard operating procedures identifying the roles
and responsibilities of Regional and Headquarters staff in implementing the
contractor award fee process. Procedure will be field tested for one
evaluation cycle, then node final.
al Assistance Tea* (Off) ftjiu«ict Users' Muual
9242.4-01A 9/1/87 - ERD ±tS pages
Explains the nature of Technical Assistant Team (TAT) contract resources,
responsibilities, and procedures for operating under this contract and a
means to evaluate and compensate contractor performance.
Policy on Cost Snaring At Publicly Owned Sites
9250.2-02 3/30/83 - HSCD 2 pages
Describes CSRCL& Section 104(c)(e)(ii) Requirement that States pay 50\ or
more of the response costs associated with facilities owned by States or
their political subdivisions ("publicly-owned") at the time of «H5t*»al of
any hazardous substance. (Supplemented by 9250.2-01.)
Policy On Cost Sharing Of lanediate Revivals At Publicly Owned Sites
9250.2-01 3/30/83 - ESD 5 pages
Specifically afyir^TM cost sharing for ianediate removal actions at
publicly owned sites. (Supplements 9250.1-01.) Note: Changes in SARA
will require revision of this docvment, wftich will be scheduled in
conjunction with pronulgation of NCP revisions.
waiver Of 10* Co*t Share For TTnenll n Planning Activities At Privately
Sites
9250.3-01 5A3/83 - HSCD 1 page
Reverses Much 11, 1982 policy (see 9246.0-01) to allow the funding of
remedial investigation, feasibility study, and remedial design at privately
owned sites without a State cost share. (See also 9250.3-02)
Guidance On Tejilieiiii Inj Waiver Of 10% Coot Sharing For
9250.3-02 6/3/83 - HSCD 4 pages
Establishes procedures for implementing cost sharing policy as reflected in
9250.3-01.
July 31, 1988 - 22 - QSUER Directive 9200.7-01
-------
Of Remedy s»i<**ti<»< Tb Regions (Older
9260.1-09 3/24/86 - OPfl/PAS 25 pages
Delegates remedy selection decisions to RAs. Outlines options for division
of decision authority between the AA/QSWER and RAs.
Delegations Of Authority aider Bie Federal Utter Pollution Control Act
(PW?CA) Arpllrahle TO Bie Super-fund Piuyida
9260.3-00 4/16/84 - OHVPAS 3 pages
(1) Identifies and delegates the applicable authorities under FHPCA for
iraninent and substantial threat to the public health, or welfare of the
United States because of an actual or threatened discharge of oil or
hazardous substance into or upon the navigable waters of the United
States from an onshore or offshore facility. (FWPCA 311; E.O. 11735,
8/3/73; 40 CFR 300.52 (NCP)
(2) Delegates to AA/OSNER and RAs authority to issue letters of notifica-
tion of placement of chemical and biological agents on the National
Oil and Hazardous Substances Contingency Plan (NCP) product schedule
in accordance with Subpart H "Use of Dispersants and Other Chemicals"
of the NCP. (F«PCA311(C)(2HG); 40 CFR 300.81, the NCP)
(3) Delegates to AA/OSWER and RAs authority to perform the EPA functions
and responsibilities relative to the Spill Prevention Control and
Countenneasures Plan (SPCC Plan) regulations. (FWPCA 311(j)(l)(C) ;
40 CFR parts 110, 112, 114. (4-1-84)
Implementation Of GSCXA Strategy At Federal Facilities
9272.0-01 4/2/84 - Office of External Affairs 1 page
Memorandum dated April 2, 1984 from the Assistant Administrator for
External Affairs to the Assistant Administrator, OSUER, discussing the
implementation phase of Federal Facility CEROA strategy.
on Federal Fari11-Mea At CBKXA Sites
9272.0-02 12/3/84 - HSCD 3 pages
Discusses status and direction of OSUER efforts to implement hazardous site
cleanup at Federal Facilities. Divides primary responsibility for national
management of super fund Federal Facility proyiaas between the Office of
Waste Pii*jidpa Enforcement and the Office of Emergency and Remedial
Response.
July 31, 1988 - 23 - OSWER Directive 9200.7-01
-------
Responsibilities Par Federal Farniti<»a
9272.0-03 8/19/85 - OWPE/OERR 1 page
Memorandum f ran Director OWFE to Director OERR clarifying responsibilities
of CWPE and GERR on Federal Facilities.
Federal
9272.0-04 8/19/85 - OWFE/OERR 2 pages
Clarifies responsibilities and direction of effort within OWPE for Federal
facility activities.
9272.0-05 8/26/85 - OESR/OWPE 1 page
Memorandum from Director GERR to Director OWPE that provides direction for
the C3*R Facilities Program Manual development responsibilities that OWFE
assumed and clarifies responsibilities between OERR and CUPE for Federal
facilities.
Financial
9275.1-01 7/31/84 - ERD 34 pages
Describes the process necessary to implement the April 16, 1984 Superfund
delegation (9260.2). Provides a planning structure for Regional Adminis-
trator to identify and assign Regional financial responsibility for
activities. (Nemo signed by Administrator) (Update planned for -late FY-88)
9275.2-01 9/21/84 - HSCD 28 pages
Describes the process necessary to implement the April 16, 1984, Superfund
delegations (9260.2). Provides a planning structure for Regional Adminis-
trators to identify and assign Regional financial responsibility for
activities.
July 31, 1988 - 24 - OSWR Directive 9200.7-01
-------
Policy Ot Flood Plains Jtad Wetlands
9280.0-02 8/85 - OFM/PAS 12 pages
Discusses specific situations that require preparation of a flood plains or
wetlands assessment and the factors to be considered in preparing such an
assessment. For removal actions, the OSC must consider the effect of
response actions; and for remedial actions, a floodplains/wetiands
assessment must be Incorporated in the planning and analysis of the action.
In responding to releases of hazardous substances in floodplains and
wetlands, Superfund actions must meet substantive requirements of the
Floodplain Management Executive Order (ED 11988); the Protection of
Wetland Executive Order (BO 11990), and Appendix A of 40' CFR Part 6,
"Statement of Procedures on Floodplain Management and Wetland Pro Lection."
For Groraduater Remediation At Bie Millcreek, Pennsylvania
Site
9283.1-01 3/24/86 - HSO) 7 pages
Memorandum presents an initial overall atT*""1^ to decision making with
respect to groundwater cleanup at Superfund sites under development by
DEER. The strategy will be further refined in a Groundwater Evaluation
Manual currently under development.
Standard Operating Safety Guide Manual
9285. 1-0 IB 11/19/84 - HSO3 182 pages
Manual provides guidance on health and safety practices and procedures.
Intended to complement professional judgement and experience and supplement
existing Regional Safety Criteria. Updates previous guidance to reflect
additional agency experience in responding to environmental incidents
involving hazardous substances. Not intended to be a comprehensive safety
manual for incident response.
Field Standard Operating Procedures Manual §4 Site Entry
9285.2-01 1/1/85 - HSCD 38 pages
Provides site entry operating procedures for field response personnel to
Lze the risk of exposure to hazardous substances on Superfund sites.
1/1/85 - HSCD 38 pages
operating procedures for decontamination of response
nnel and equipment at hazardous substance release sites.
July 31, 1988 - 25 - OSWER Directive 9200.7-01
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Field Standard Operating Fmnmlirag Manual « - Air
9285.2-03 1/1/85 - HSCD 33 pages
Describes air monitoring procedures for use by field personnel to obtain
air monitoring data required to minimize the risk of exposure to personnel
at hazardous substance release sites.
Field Standard Operating Procedures Manual #6 - work zones
8285.2-04 4/1/85 - HSCD 30 pages
Describes procedures to be usea by field personnel to establish work zones
for control of hazardous mate rials to minimize the risk of exposure to
workers at hazardous release sites.
Field Standard Operating Procedures Manual t9 - Site Safety Plan
9285.2-05 4/1/85 - HSCD 34 pages
Establishes requirements for protecting health and safety of field
personnel during all activities conducted at the site of an incident.
Contains safety information, instructions, and procedures to cover a
variety of situations commonly encountered in this type of field work.
1 Bealth Technical Assist
And Bxforceaent Guidelines For
3/15/84 - HSCD 10 pages
Gives direction for OSHA field staff who may be asked to provide assistance
or conduct enforcement activities at hazardous release sites.
il Health & Safety
9285.3-02 7/7/87 - HSCD 4 pages
Provides procedures for managing employee occupational health and safety
considerations at Superfund sites.
Public Btaltii Evaluation
9285.4-01 10/1/86 - HSED Manual
Establishes a riii»i»iTi to be used at Superfund sites to analyze public
health risks and develop design goals for medial alternatives based on
Applicable or Relevant and Appropriate Requirements (ARARs) of other laws,
where available; or risk analysis wftere those requirements are not
available. Procedures art designed to conform witn EPA's proposed risk
assessment guidelines. Supplements Chapter 5 of the Guidance on Feasi-
bility Studies under CERCLA, which describes the public health evaluation
process and provides detailed guidance on conducting the evaluation.
July 31, 1988 - 26 - OSWBR Directive 9200.7-01
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Guidance For Coordinating ASTDR Bealth riiiim t\mt\i Activities With The
Superfuod TTimull n Process
9285.4-02 5/14/87 - HSED 32 pages
Provides guidance for coordinating health assessment activities at
Superfund sites between the ASTDR and EPA when conducting Superfund
remedial activities.
Health Ai.'i' nsrni n By AZEDR :ja FY-88
9285.4-03 V/7/88 - «s»n 6 pages
Clarifies operating procedures for dealing with ATSDR. Presents schedule
for health assessments being conducted by ATSDR in FY-88.
iim* Risk Assessment Tnf"1 "•J1 JT* TH i i^ *
9285.6-01 12/17/86 - HSFT1 Itenual
Provides information on resources for conducting risJc assessment activities
at Superfund sites.
Of understanding Demean ASXR Jtad EPA
9295.1-01 4/2/85 - 0PM 11 pages
Establishes policies and procedures for conducting response and non-
response health activities related to releases of hazardous substances.
Joint CORPS/EPA
9295.2-02 6/24/83 - GPM 41 pages
Provides joint guidance for conducting activities and coordination
necessary for a smooth interface between EPA and the U.S. Anny Corps of
Engineers. Provides further guidance regarding responsibility and
information necessary for coordination of billing and reporting.
f^£ ^^^^J^fc—^—^^^ ^^^J MHA T^
UK AUUJJjWEX JVa^A «BrI% JU1
P.L. 96-S10 (GBCIA)
9295.2-03 12/3/84 - OEM 3 pages
Defines the assistance the U.S. Amy Corps of Engineers win provide to EPA
in implementing the Superfund program, EPA Fund-lead or State Fund-lead for
EPA Enforcement-lead projects.
July 31, 1988 - 27 - OSWER Directive 9200.7-01
-------
Of Understanding (MOO) Between FE» And EPA For
Of Cezcla Beiocaticn Activities Hotter PL 96-510
9295.5-01 4/5/85 - 0PM 21 pages
Describes major responsibilities and outlines areas of nutual support and
cooperation with respect to relocation activities associated with response
actions pursuant to CEROA, Executive Order 12316, and the NCP, 40 CFR Part
300. Effective until April 1989.
apleaentation Of EPVFEMA Pijau nilia Of Understanding (MOD) Op OSCXA
Relocations
9295.5-02 6/14/85 - 0PM 27 pages
Forwards EPA/FEMA MOO on CJ3&1A Relocation (9295.5-01) to Regional
Administrators. Provides guidance in establishing Regional/Headquarters/-
FEMA relocation contacts and following standards established in the MX.
Coordination Between Regional Superfund Staffs And Office Of Federal
Activities (OfA) Regional Counterparts On CERCLA Actions
9318.0-04 10/29/84 - HSCD 4 pages
Encourages coordination between tne Regional Superfund staffs and OFA
Regional counterparts in carrying out CERCLA. actions. (Signed W. Hederan
and A. Hirsch).
Guidance For
9320.1-02 6/28/82 - HSED 14 pages
Establishes procedures for inpieawnting the NPL, vftich was -mandated by
section 105 (8)(B) of CERCTA. Addresses the overall strategy for develop-
ing and presenting the list, including selection of candidate sites, data
collection, application of the Hazard Ranking System (HRS), procedures for
submitting candidate sites, and the verification of quality assurance
(control procedures). (Signed by Heoeaan, supplemented by NPL 9320.3-01
and 3-03)
BOtA/NPL Lifting Policy
9320.1-05 9/10/86 - HSED 11 pages
Describes RGRAVNFI. listing policy as promulgated in the federal Register
(51 FR 21054, June 10, 1986)
July 3? 1988 - 28 - OSWER Directive 9200.7-01
-------
RCRA 3par>^ai Study Haste Definitions: s<»«»y porfTiiH^
Consideration Prior TO NPL Proposal Onder SABA.
9320.1-06 3/10/87 - HSED 22 pages
Policy memorandum signed by Director OERR, which discusses Section 105(g)
and 125 of SARA and its relationship to RCRA, as amended by HSWA with
respect to the special study wastes such as drilling fluids, cement Kiln
dust wastes, mining wastes, ash wastes, etc.
Guidance For Consideration Of Sections 105 (g) ted 125 Of SARA Prior
To NPL Proposal Of ^^ai study Haste Sites
9320.1-07 8/21/87 - HSED 17 page
Memorandum describes OERR policy for identifying municipal waste landfills
that have received hazardous wastes. Criteria described for considering
their possible inclusion on the NFL. Signed by Director OERR.
Listing Of Municipal T -*"*** n « On NFL
9320.1-08 10/24/86 - HSED 2 pages
Memorandum discusses procedures for determining which solid waste landfills
qualify for listing on the NPL. Describes the type of documentation
required from the Regions to establish this eligibility.
Listing Of Mmicipftl T-anftrtna on
9320.1-09 8/21/87 - HSED 2 pages
Memorandum continues the discussion of procedures for listing municipal
landfills which qualify as Superfund sites on the NPL.
9320.3-01 5/12/83 - HSSD 7 pages
Provides guidance for the first and future updates of the NPL (Supplements
9320.1-2 and 9320.1-3. Supplemented by 9320.3-2 and 9320.3-3)
Instructions For Piram gating NPL Update
9320.3-02 1/18/84 - HSED 7 pages
Defines piuceduies and Regional responsibilities for the final rulenaJcing
of the NPL update.
July 31, 1988 - 29 - OSWER Directive 9200.7-01
-------
Procedures For Updating B* NPL
9320.3-03 5/23/84 - HSED 3
Sets for the process for developing updates to the NFL and presents the
schedule for proposing the second update. (Supplements NPL 9320.1-2,
9320.1-3, and 9320.3-1)
Guidance For Proposed NPL Update *3
9320.3-04 12/10/84 - HSED 3 pages
Memorandum establishes schedule and scope of Update *3 to allow Regions to
submit siter not completed in time for previous update and limited to
classic industrial sites rtiich clearly fit existing policy guidelines.
NPL Inf Ormation nprtyt-g #4
9320.3-05 4/30/85 - HSED 6 pages
Provides background information on NPL Response Categories/ Status Codes.
Updating Ifte BPLt Update #6 Proposal
9320.3-06 9/17/85 - HSED 4 pages
Memorandum provides specific information on the scope, scheduling, and
procedures for preparing sites for proposal on Update #6 of the NPL.
Describes the future implications for a proposed delisting policy on adding
sites to the NPL.
Interim Information Relaaw Policy
9320.4-01 4/18/85 - HSED 6 pages
Provides interim policy for release of information regarding the NPL.
Should be used by Regions to prepare coordinated responses to information
requests from the public, from citizens, and those submitted under the
Freedom of Information Act (FOIA).
Hoc Stlactiag An Off-Site Option m A Superfuud Response
Action
9330.1-01 1/28/83 - HSCD 4 pages
tn« interface between HO8A and CERCLA for the off-site treatment,
storage or dJspcmal of hazardous substances. Establishes general Agency
policy for removal and remedial actions. Establishes specific criteria for
remedial actions in determinjng «nen hazardous substances may be trans-
ported off-site for treatawit, storage or disposal vfttn selecting an
appropriate off-site hazardous waste management facility.
July 31, 1988 - 30 - OSHER Directive 9200.7-01
-------
Evaluation Of PiuyidB And Enfbzcaait-Lead Records Of Derision (BODS) For
Consistency Kith BOA Land T>»«pr*^gi Restrictions
9330.1-02 12/3/86 - HSCD 15 pages
Regional survey to determine impact of RCRA land disposal restrictions on
RODS.
Discharge Of Wa«rfi7Mit:«T Trtm CERCLA Sites Into POHB
9330.2-04 4/15/86 - HSCD 6 pages
Joint memo from QERR and
-------
Preparation Of Decision Dooaents For Approving Foxi-Financed fta. PHP
Remedial Actions Twjor CEBCLA
9340.2-01 2/27/85 - HSCD 22 pages
Assists Regional Offices in the preparation of the decision documents
required for approval of Fund-financed and Potentially Responsible Party
(PRP) remedial actions. A Record of Decision (ROD) is required for all
remedial actions financed from the Trust Fund. Dooinents the agency's
decision-making process and demonstrates that the requirements of CERCLA
and the NCP have been met. The RCD and the procedures desrribed in this
document hfrnmp the basis for future cost recovery actiors that may be
undertaken.
Preliminary nnrrrnimrnL (PA) ftrtttanro FY-1988
9345.0-01 2/12/88 - HSED 88 pages
Provides Regions, States, Field Investigation Teams (FITS) and other
Federal agencies with direction for conducting new preliminary assessments
(PAs) and reassessing existing PAs during FY-88. Intended to standardize
PA scope, products, and decisions and improve overall PA quality. .In
effect until the Hazard Ranting System (HRS) is revised. Consistent with
the anticipated direction of the revised National Contingency Plan (NCP).
Provides Regions with directions for handling PA Petitions from the public.
Discusses preliminary procedures for the Environmental Priorities
Initiative (EPI).
Site Inspection (ESI) Transitional «»**»»•• For FY-88
9.345.1-02 10/1/87 - HSED 88 pages
Provides Regions, States and Field Investigation Teams (FTTs) with a
reference of general methodologies and activities for conducting inspection
work on sites projected to make the National Priorities List (NFL).
Describes the goals, scope, procedures, and desired results of expanded
site inspections (ESXs) in FY-88. Will be used until new screening SI
(SSI) and listing SI (LSI) guidance is prepared and distributed in FY-89.
strategy For
9345.2-01 2/12/88 - HSED 16 pages
Describes the strategy EPA win follow to address the pre-remedial goals
and requirements of SARA. Through SARA, Congress established the mandate
to accelerate the pace of identifying those sites needing Superfund
remedial action to protect public health and the environment. Responds to
this mandate and addresses SARA pre-remedial production goals, program
operations under the current HRS, and piuyrau operations u-iring and
following revisions to the HRS. Discusses procedures for integrating the
Environmental Priorities Initiative (EPI) into the pre-remedial
July 31, 1988 - 32 - OSWR Directive 9200.7-01
-------
InteiiB ROB/COCA ffnirt3'1™* On Non-Contiguous Sites And Qn-Site
of waste Residue
9347.0-01 3/3/86 - HSCD 9 pages
Provides basic information pending final guidanre.
uncontrolled Hazardous Haste Site Ranking Systems - A Users Manual
9355.0-03 7/16/82 - hSED 66 pages
Describes method developed by MITRE Corporation for ranking hazardous
substance facilities for determining eligibility for inclusion on the
National Priority List (NFL). A site most score at 28.5 to be eligible.
directive reprints the Federal Register discussion of 7/16/84.
Superfund Remedial Design And men ill n Action (RD/RA) Gnirtanre
9355.0-04A 6/1/86 - HSCD 112 pages
Manual to assist agencies and individuals who plan, administer, and manage
Design and Rerortial Action (RD/RA) at Superfund sites. The
material is applicable to both Fund-financed and responsible party RD/RAs
and provides procedural guidance to ensure that the RD/RA is performed
properly. Organized to reflect the sequence of events occurring prior to,
during, and after the RD/RA action at a Superfund site. Notes sections
that apply only to Fund-financed projects. Does not directly address
RD/RA's conducted by other Federal agencies, which are the subject of a
projected Federal Facilities Piuyidiu Manual.
Guidance On Feasibility studies (FS) nrafcrr QERCLA
9355.0-05C 6A/85 - HSCD 188 pages
Provides a more detailed structure for identifying, evaluating, and
selecting remedial action alternatives under Q&ttJLA and the NCP (40 CFR
300). Describes the process from inception: development of specific
alternatives based on general response actions identified in the remedial
investigation (RI), including screening technologies within the categories
for applicability to the site. Analyzes alternatives that pass the
screening process, which ennmasiet engineering, public health, environ-
mental, and cost analyses. Organizes information to compare the findings
for each alternative. Document will be replaced by 9335.3-01: Guidance
for Conducting p^^^ai Investigations (RZs) and Feasibility studies (FS)
r*™^rA. now in draft.
July 31, 1988 - 33 - OSHER Directive 9200.7-01
-------
Qa Th«anij
-------
A caependiuB Of Superfund Field Operations
9355.0-14 12/1/87 - HSCD %fcnual
This four volume collection contains a consolidated, ready reference to all
remedial field procedures. The manual provides the Agency with consistent
field procedures among the ten regions. It should be used by Remedial
Project Managers, Quality Assurance Officers and State and Regional field
staffs.
Interia t*iidance Oa aapayf trti s^iEcMr»» of
9355.0-19 12/24/86 - HSCD 12 pages
Provides interim guidance, regarding implementation of SARA cleanup
standards provisions. Highlights new requirements with emphasis on the
RI/FS process.
RI/PS
9355.0-20 7/22/87 - HSO) 14 pages
Identifies methods of reducing overall project schedules and costs while
retaining a quality product, me four major points in the directive
include: phased RI/FS, streamlined project planning, management of
handoffs, and RI/FS control reviews.
Additional Interia Guirtanra For FY-87 Records Of
9355.0-21 7/24/87 - HSCD 10 pages
Continues with guidance regarding implementation of SARA cleanup standards.
Describes the nine criteria to be used in evaluating remedial alternatives
and selecting a remedy.
ctn Funding For Giuuul HartfT And Surface Matrrr Restoration
Actions
9355.0-23 10/26/87 - HSCD 4 pages
Discusses interim policy for the funding of water restoration actions.
Specifies ttxich types of activities would be eligible for inclusion under
the 10-year provision in section I04
-------
Lead ReaedLal Project
9355.1-01 12/1/86 - HSCD 135 pages
Assists EPA Remedial Project Managers (RPMs) to manage Federal-lead
remedial response projects. Describes in detail the responsibilities of
the RFM during the planning, design, construction, operation, and close-out
of remedial response projects. Provides RPMs with information on pro-
cedures for conducting Federal-lead remedial projects from pre-RI/FS
activities through site close-out.
BFM
9355.1-02 9/30/87 - E^CD 56 pages
Orientation for the new Remedial Project Manager (RPM) to the duties,
responsibilities, and decisions required to serve as the agency's represen-
tative in charge of a Superfund site. Explains the types of decisions
required of the RPM; the resources available, both written and within the
management chain; and the accountability aspects of each decision, walks
the RPM through a project site nanagenent scenario.
state Lead n««Mai Project Manual
9355.2-01 12/1/86 - HSCD 103 pages
Assists the ERA HfinnMal Project Managers (RPMs) in managing State-lead
remedial response projects. Describes in detail the responsibilities of
the RPM during the planning, design, construction, operation and close-out
of remedial response projects.
Guidance For Providing Alternative Hatter Supplies
9355.3-02 3/1/88 - HSCD 135 pages
Manual provides direction for those circumstances under which it is
appropriate to provide alternative water supplies.
KI/TS IBproveMnts PoUuv up
9355.3-05 4/25/88 - HSCD 18 pages
Delineates improvements developed for more effective Remedial
investigstions/PeasiMlitv Studies (Rl/FS).
July 31, 1988 - 36 - OS&ER Directive 9200.7-01
-------
Cost PfenagcMnt Manual
9360.0-02B 4/88 - EOT 222 pages
Provides comprehensive cost management procedures for use by EPA at
removals authorized by CIHQA. For use by the QSC and other on-scene
personnel when perfonning cost management activities at Superfund removal
sites. Includes: a discussion of the concept and an approach to cost
management; techniques for cost projection and tracking; techniques for
cost control, monitoring and, verification of contractor charges; cost
recovery and cost docuncntation. Appendix includes formats and samples of
a variety of memoranda, as well as procedures for initiating removals,
procedures for securing assistance from other Federal agencies at Supsrfund
sites; examples of cost projections; a table of Federal and Technical
Assistance Team (TAT) personnel cost rates; a copy of the Memorandum of
Understanding (MDU) between EPA and the Coast Guard1; a copy of the MDCJ
between ATSDR; and a copy of the draft MJU between EPA and
9360.0-03B 2/88 - ETO 365 pages
Manual provides EPA response officials with unifoxn, Agency-wide guidance
on removal actions. Describes in one manual all of the procedural and
administrative requirements for removal actions. Addresses a wide array of
topics and includes NCP definitions relevant to the piujum, removal
policies as determined by QERR, and step-by-step directions for preparation
and approval of documentation. Appendices include examples of action
memoranda, ceiling increases, and other documentation for various
situations.
Relationship of The Removal And Remedial Program under The Revised NCP
9360.06A 3/10/86 - GBR 6 pages
Memorandum addresses revisions to the NCP that redefine the response
categories of removal and remedial actions so that removals now include all
activities formerly considered immediate removals, planned removals, and
initial remedial measures. These definitional changes are expected to
expedite any cleanup activities by avoiding previous remedial requirements
for RZ/FS studies and fall cost effectiveness studies. Provide a higher
degree of ytuyiJBi integration and flexibility. All removals are not
necessarily urgent and all urmHin1 actions are not necessarily deferrable.
This new flexibility will allow atVUtlc"*? managerial control of scheduling
and completion of all projects.
Jtoly 31, 1988 - 37 - OfiHER Directive 9200.7-01
-------
Actions At Methane Release sites
9360.0-08 1/23/86 - ERD 2 pages
Clarifies EPA's policy on the appropriateness of CERCLA removal actions at
methane gas release sites. As a matter of policy, CERCXA responses to
methane gas releases should be carefully evaluated on a case-by-case basis,
using this document as well as best professional judgement, and with
careful documentation. Because methane gas is not listed or designated
under any of the statutory provisions in Section 101(14) CHtLA, it is not
a "hazardous waste." However, responses under Section 104 are not limited
to hazardous substances. Since methane gas emanating from a landfill is
not considered to be natural gas, such releases nay therefore be eligible
for response under Section 104««*•• TO Tft* Efficient
9360.0-13 4/6/97 - EED 8 pages
Provides guidance to the Regions on implementation of the SARA provision
that requires nmoval actions to contribute to the efficient performance of
long-tern remedial actions.
July 31, 1988 - 38 - OSBR Directive 9200.7-01
-------
Use Of Funufril Reeoval Authority To Address WL ted Proposed NFL Sites
9360.0-14 2/7/87 - ERD 4 pages
Directs Regions to evaluate NFL/proposed NFL sites to determine if the
expanded removal authority in SARA can be used to cleanup, or substantially
clean up these sites.
Bole Of Expedite. I Rmnorae Action (BBS) coder Sara
9360.0-15 4/2V87 -ERD 18 pages
memorandum from Director OERR to Region 7 updates Directive 9360-10 and
defines Expedited Response Actions (ERAs) as removal actions performed by
remedial contractors. Provides direction on the anju.uyi.iate use of ERAS.
n i»ji ,m Priorities
9360.0-18 3/31/88 - ERD 4 pages
Sets priorities for managing removal activities at Regional level.
Interim Final (arlrtanre On Removal Action Lewis At Contaminated Drinking
fitter Sites
9360.1-01 10/6/87 - ERD 14 pages
Provides interim final guidance on removal action levels at contaminated
drinking water sites.
Model PrograB For Removal Site File
9360.2-01 7/18/88 -ERD 18 pages
Instructs On Scene Coordinators (OSCs) and administrative support staff in
the requirements for file management at on-site remeoval sites. Contains a
kit and a list of contents for successful establishment of permanent files.
Of Cooperative T>yieimuiii To political Subdivisions
9375.1-06 2/12/87 - HSCD 22 pages
Establishes procedures for providing funding to political subdivisions to
perform remedial activities through cooperative agreements.
Inter*" ftrirtann* Qn «*-^t? Participation In Pre-MHdial And
9375.1-09 7/n/87 - HSCD 22 pages
Provides interim guidance on State participation in pre-remedial and
remedial response, including the use of cooperative agreements.
July 31, 1988 - 39 - OSHER Directive 9200.7-01
-------
9380.0-05 11/1/85 - HSCD Manual
Provides overview of the fundamental concepts, procedures, and technologies
used in leachate plume management. Plume generation dynamics and delinea-
tion are discussed. Plume control technologies are evaluated and selection
criteria for site applications are defined. Grounduater pumping, sub-
surface drains, low permeability barriers, and innovative technologi :s as
acquifer restoration technologies are Discussed in detail. Basic reference
handbook for governmental and industrial technical personnel writing on
controlling leachate plumes from unconrrolled hazardous waste sites.
Guidance Oocnvent For Cleanup Of Surface
9380.0-06 7/17/86 - HSCD Manual
Provides guidance to Federal, State, and local officials and private firms
that plan and implement remedial actions at NFL sites vftich have one or
more surface impounttaents containing hazardous wastes. Used with other
documents in conducting remedial investigations and feasibility studies
(RI/FS). Provides a systematic approach to remedial action and instruction
for scoping and performance of limited remedial investigations or limited
feasibility studies to be implemented in a relatively short time period.
Utilizes the concept of operable units as definable problem areas which can
be addressed independently of other site issues and problems.
9380.1-02 10/9/86 - OSWER 52 pages
Prepared by the Technology Transfer Task Force. Lists and abstracts the
most important technical materials that should be readily available to all
Federal and State hazardous waste staffs and their contractors. Assigns
each document a level of importance as primary reference documents for
Federal and State headquarters, region, and field staffs.
Superfuod Innovative Technology EraJjoxtion (SPB) Prognei Strategy And
9380.2-03 12/1/86 - HSCD 58 pages
Describes the SUB pa.uyj.ja strategy, ptuyxjui plan, and provides information
OR DSUTtwidOKdOD ifi tofc DCOCDT3DI*
July 31, 1988 - 41 - OSWR Directive 9200.7-01
-------
State ProcoreaBnt under Superrund Remedial Cooperative
9375.1-11 7/88 - HSCD " Manual
Manual supercedes 9375.1-05 and provides the latest information and
direction for managing all aspects of State procurement under Superfund
Renedial Cooperative Agreements.
State Access To ER& Contractors Daring ""•"nrtial Process
9375.1-12 4/27/88 - HSCD 2 pages
Memorandum reaffirming Trocedures for State retention of EPA contractors
during r-MmaiMai response process.
State Core Piutjidei Funding Cooperative
9375.2-01 12/18/87 - HSCD 27 pages
Provides guidance for funding cooperative agreements between Regions and
States on nan-site-specific CERCL& activities.
Slurry TieuJi Cdnatructinn For Polluton Migration Controls
9380.0-02 2/1/84 - HSCD Manual
Provides in-depth guidance on the use of slurry walls for the control of
sub-surface pollutants, and rtescrUbes these barriers for site remediation.
Presents the theory of function, design, and use.
Guidance For n«myp Of Surface Tank And Dm Sites*
9380.0-03 5/28/85 - HSCD Manual
Intended for Federal, State and, local officials and private parties
engaged in carrying out remedial actions at NPL sites. Provides guidance
for implementing concurrent remedial planning activities and accelerating
project implementation for cleanup of surface tanks and drums containing
hazardous wastes. Should be used with other EPA documents on conducting
remedial investigations and feasibility studies. Provides a systematic
approach to remedial action for wastes in tanks and drums. One of three
guidance documents on specific remedial actions. Bibliography identifies
other dooaeants that should be used concurrently.
Action At Haste Mnrpgal Sit
9380.0-04 10/1/85 - HSCD Manual
Basic reference book describing remedial, technology and providing guidance
in selecting technologies that are potentially applicable for a given waste
site. Assists Remedial Project Managers (RPMs) in understanding remedial
technologies.
July 31, 1988 - 40 - QSWHl Directive 9200.7-01
-------
HI
OOCCNBRS IS TISKL BOOTf
(Note: Descriptions of content and expected issuance date have been
supplied when available.)
Quality Assurancnce Plan For Superfund
9200.1-05 Jcint Document - GERR/OWFE
Distribution For mm «G Grant Program
9200.3-04 HSED
NFL Docket
9200.6-02 HSU)
CEBCLA Compliance with Otter iy*"> nanal
9234.1-01 (Two volumes)
9234.1-02 Completion Date, Fall 1988 - OFM/PAS
Provides guidance to RFMs and. OSCs in iopieaenting the CEtOA recjuironent
that on-site nnedits coqply with Applicable or Relevant and Appropriate
Requirements (MftRs) under Federal «nvironn«ntai laws and promulgated State
environmental or facility siting laws that are more stringent than Federal
requirements. Volvne I contains an overview and requirements for cotpii-
ance with RCRA ARARs. Volume II contains requirements for compliance with
Safe Drinking Water Act, Clean water Act ARABS, and ground water policies.
OBCXA OTBpl.lgr* With Otter
9234.03 (Volxme HI) QPM/PAS
Requirements for the dean Air Act, the Itecic substances Control Act, and
other environnental laws including resource protection statutes such as the
Endangered Species- Act.
Super fund Analytical Dtta Review And Oversight
9240.0-03 HSED
/or aapeetaul amuoity aelarlnng coiuacLox Support
9242.5-01 HSCD
July 31, 1988 - 42 - OSWES Directive 9200.7-01
-------
Guidance On ft"""*^ Actions For Contaminated Grand water At Superfund
Sites
9283.1-02 Estimated Issuance Date, Fall 1988 - HSED
emphasizes decision-making issues related to contaminated ground water.
For use by contractors conducting RI and FS activities at sites where
ground water is contaminated; RPMs responsible for ensuring the quality of
information contained in the RI/FS and decision makers responsible for
selection and subsequent performance evaluation of ground water remedial
actions at Superfund sites. Outlines key considerations in selecting a
yiuutid water remedy and a consistent approach to making. contaminated
ground water cleanup decisions. Presents case studies of ground water
cleanup decision making processes. Provides detailed discussions of
remedial technologies and of the technical aspects of RI/FS, such as
monitoring techniques or nri.dfli.ng procedures. Currently in review draft.
9285.5-01 Fail 88 - HSED
Outlines a framework for a consistent, comprehensive assessment of human
exposure associated with uncontrolled hazardous waste sites. Presents
integrated methodology to guide the three major component analyses required
to assess human population exposure to contaminants: (1) analysis of toxic
conataodnants released from a site; (2) determination of their environ-
mental fate, and (3) evaluation of the nature and magnitude of human
population exposure to toxic contaminants.
Guidance For Conducting RI/FS ttader
9335.3-01 HSCD
Guidance On Preparing Super fail pB**iffi«y PLI'IIP""'^ !be Proposed Plan And
Record GF Tlarisinn
9335.3-02 HSCD
Assist personnel in EPA, States, and other Federal agencies in preparing,
reviewing, and defending the Proposed Plan and the Record of Decision
(ROD) , two key (Vrnnenit in the remedy selection process.
For Low And Medina Coct Site Discovery Activities
9345.0-02 HSCD
Guidance For Special Stndy Activities
9345.0-03 HSCD
July 31, 1988 - 43 - OSHER Directive 9200.7-0J
-------
To Sm^jrt B?S Scoring
9345.1-01 HSED
lapiaoHitation Guidance For Solvent Dioxin And California List Hastes
Subject To HCBA/BaA Land fti^pnsal Bestrictions
9347.1-01 HSCD
Tendnating Contzacts For superfund Lead !»«••*< ai Action Projects
9355.1-02 HSCD
GuixJjncc in Pvj^aration Of A aaperfuul riiini iiiiiai Of
9375.0-01 Fall 88 - HSCD
Assists Regions and States In developing of State Memoranda of Agreements
(SMDAs). Presents sample individual approaches consisting of articles and
attachments corresponding to the major parts of EPA/State interactions, as
will be proposed in the NCP revision. EPA Regions and States nay choose to
develop SM3As based on this sanple framework. Currently under review 'and
will be reissued in draft.
involvement Of Indian l±ibai Covenants m Tn» Superrtnd Pie Beaedlal And
ncanlial Piujiai
9375.1-10 HSO)
Describes proposed NCP provisions for participation by Indian Tribes in the
Superfund Program. Describes Agency's involvement with Indian Tribal
governments, determination of project lead, capabilities required from
Tribal governments in order to receive Fund monies, and the process for
application and award of Cooperative Agreements for pre-remedial and
remedial activities.
Alternative xreaoent/DLspocal Tednoiogy ^^^nn* Ox H*™MHI And
EBeHDVa^ nCt^QDft
9802.01 ERD
Site (\rnni \nm Plm
9380.2-02 HSCD
cxitoria For Becycling MctM FTOJI CBKCA Si'
9380.2-04 HSCD
OB Mfferantiating Alternative Technologies
9380.2-05 HSCD
JUly 31, 1988 - 44 - OSW» Directive 9200.7-01
-------
NLM9U.CAL QOSC ID SDPERTOD PROGRAM
"'•"» "TVf
9012.10 Redelegation Of Authority Under CEROA/SARA 16
And Superfund Internal Delegation Of Authority
9200.1-05 Quality Assurance Plan For Superfund (Draft) 42
9200.3-01A Superfund Cotrarehensive Acccnpiishments Plan 16
Manual (SCAP) FY-88
9200.3-02 Implementatio«. Strategv For Reauthorized 16
Superfund: Snort-Term Priorities For *£tion
9200.3-04 Resource Distribution For TfC Program (Draft) 42
9200.3-05 Flexibility In Bie FY-88 Superfund Regional 16
Qctranurai Operating Plan
9200.4-01 GnlrtelJTm For Producing Superfund Documents 17
9200.6-02 NPL DocJcet Guidance (Draft) 42
9200.7-01 Catalog Of Superfund Program Directives 17
9221.0-02 ('KHTI.TS Data Handling Support Policy Statement 17
9225.0-02 Forwarding Claims To Headquarters 17
9225.0-03 Notification Of Restrictions On Reintjursanent 18
Of Private Party Costs
9230.0-02 Superfund Coninanity Relations Policy 18
9230.0-03 Community Relations Handbook 18
9230.0-03a Community Relations Activities At Suptrfund 18
Enforcement Sites - Interim Guidance
9230.0-03B Community Relations In Superfund - A Handbook 19
Inter!* <^*^«ypce
9230.0-04 Connunity Relations Guidance For Evaluating 19
Citizen Concerns At Superfund Sites
9230.0-05 Connunity Relations Requirements For operable 19
Units
9230.1-01 In+"rin Guidance On HAG Grants For Public 19
Pa..icipation
9230.1-02 TfC Program Activities Prior To Issuance Of 19
Interim Final Rule
July 31, 1988 - 1 - OSftER Directive 9200.7-01
-------
9230.1-03
9230.1-04
9234.1-01
9234.1-02
9234.1-03
9234.0-04
9234.0-05
9240.0-01
9240.0-02
9240.0-03
9242.2-01B
9242.3-03
9242.3-05
9242.3-07
9242.4-01A
9242.5*01
9250.1-01
9250.2-01
9250.3-01
Citizens Guidance For The Technical Assistance
Grants Program
Regional Guidance Manual For The Technical
Assistance Grant Program
QHCLA Conpliance WLt±> Other t^w* Manual
Volune 1 (Draft)
CERCLA Cc-pliance With Other Laws Manual
Volume 2 (Draft)
CERQA Corpliancp WitT> Other Laws Manual
vouine 3 (Draft)
Applicability Of RCRA Requirements To CSBCLA
Mining waste Sites
Interim Guidance On Compliance With Applicable
Or Relevant And Appropriate Requirements (ARAR)
User.'s Guide To Tne Contract Laboratory Program
Analytical Support For Superfund
Superfund Analytical Data Revision And
Oversight (Draft)
Qnergency Response Cleanup Services (BtCS)
Users' Manual
Procedures For Initiating Remedial Response
Services
Evaluation Plan
Implementation Of The Decentralized Contractor
for ^ifr-h^i BaBMis
-------
9250.3-02
9260.1-09
9260.3-00
9272.0-01
9272.0-02
9272.0-03
9272.0-04
9272.0-05
9275.1-01
9275.2-01
9280.0-02
9283.1-01
9283.1-02
9285. 1-0 IB
9285.2-01
9285.2-02
9285.2-03
9285.2-04
9285.2-05
9285.3-01
a*«0e *_n«»
Guidance On Implementing Waiver Of 10% Cost
Sharing For Rmprtial Planning
Delegations Of Remedy Selection To Regions
(Under Delegation #14-5)
FWPCA Delegations of Authority - Ccnplete Set
Implementation Of CEBCLA Stratery At Federal
Facilities
Initial Guidance On Federal Fao Uties CESCTA
Sites
Responsibilities For Federal Facilities
Federal Facilities
Responsibilities For Federal Facilities
Removal Financial Management Instructions
Policy On Flood Plains And Wetlands Assessments
Tfte MillcreeX, Pennsylvania Site
&iidanc* fti RamwM^I Affinps Fr>r Cnrrt-jm\naf^
Grounduater At Superfund Sites (Draft)
Standard Operating Safety Guide Manual
Field Standard Operating Procedures Manual #4
Site tetry
Field standard operating procedures fwuiai mi
Fieia stanoara operating procedures gBwai wo
a-fT ^rm^^ ]1fpr^
Field standard operating rroceoures rnmnHi wo
Work Zones
site Safety Plan
Occupational And Health Technical Assistance
«• • « ftfftm i»^»fc 4 fm+<* \ UA9l«>K 9*«4 Cafa^V
22
23
23
23
23
24
24
24
24
24
25
25
43
25
25
25
26
26
26
26
If.
July 31, 1988 - 3 - OSHBR Directive 9200.7-01
-------
9285.4-01
9285.4-02
9285.4-03
9/85.5-01
9285.6-01
9295.1-01
9295.2-02
9295.2-03
929*. 5-01
9295.5-02
9318.0-04
9320.1-02
9320.1-05
9320.1-06
9320.1^07
9320.1-08
9320.1-09
93 20. --01
9320.3-02
^«£a»W*«v \fm»
9320.3-03
A «»•««« 4_AJ
Superfund Public Health Evaluation Manual
Guidance for Coordinating ASTDR Health
Assessment Activities With The Superfund
Health Assessments By ASTDR In FY-88
Superfund Exposure Assessment Manual (Draft)
Mtiuuidiidun Of understanding Between ASTDR And
EPA
Joint CORPS/EPA Guidance
Interagency Agreement Between Corps Of
Engineers And EPA In Executing P.L. 96-510
(CERCLA)
MDU Between FEMA And EPA For The Implementation
Of CERCLA Relocation Activities Under PL 96-510
Implementation Of EFA/FEMA MDU On CERCLA
Relocations
Coordination Between Regional Superfund Staffs
And OFA Counterparts on CERCLA Actions
RCRA/NPL Listing Policy
RCRA Special Study Waste Definitions: Sites
Requiring Additional Consideration Prior To
NPL Proposal Under SARA
Interim Guidance for Consideration of Sections
105 (G) and 125 of SARA prior to NPL Proposal
TA**inq of Municipal Landfill? On The NPL
Lilting o' Miinl'*lri9il T-w" ^ 1 1 * f*» '*• "PC-
GihUance For Updating The NPL
Instructions For PH^^O*^^ ***** npaat*
Procedures For Updating The NPL
26
27
27
43
27
27
27
27
28
28
28
28
28
29
29
29
29
29
29
30
30
July 31, 1988 - 4 - OSWDl Directive 9200.7-01
-------
9320.3-05 NFL Information update #4 30
9320.3-06 Updating Die NFL: Update #6 Proposal 30
9320.4-01 Interim Information Release Policy 30
9330.1-01 Requirements For Selecting An Off-Site Option 30
In A Superfund Response Action
9330.1-02 Evaluation Of Progra.ii And Enforcement-Lead 31
RODS For Consistency With RCRA Land Disposal
Restrictions
9330.2-04
9330.2-05
9330.2-06
9335.3-01
9335.3-02
9340.1-01
9340.2-01
9345.0-01
9345.0-02
9345.0-03
9345.1-01
9345.1-02
9345.2-01
9347.0-01
Discharge Of Wastewater From (TKl'IA Sites Into
POTWS
CZRCLA Off-Site Policy: Providing Notice To
Facilities
CEBCLA Off-Site Policy: Eligibility Of
Facilities In Assessment Monitoring
Guidance For Conducting Remedial Investigations
And Feasibility Studies Under CERCLA (Draft)
Guidance on Preparing Superfund Decision
*, vai^imfr* tins rj»m*v^cu r±aii mau IUSWU.LU vj£
Decision (Draft)
Participation Of Potentially Responsible
Parties (PRPs) in Development Of Rls And FSs
1 T^TII flT Ini \Ji Ud-XaXMi 1JLA.LUIS1U> C\Ji
Approving Fund-Financed And PRP Remedial
Actions Under CERCLA
Preliminary Assessment Guidance, FY-88
Guidance for Low And Medium Cost Site
Discovery Activities (Draft)
a«4 Amr^tm 9nr 1l ^ 1 1 1 ^Mrr^V ftr*M vif 1fM f fll'JI fl 1
p^j/t sit* Tnsptrtion Sampling To Support HRS
ms Scoring (Draft)
Guidance - FY-88
Prr-Remedial Strategy For ImplanBiting SARA
Interim RCRA/CE8CLA Guidance On Non-Contiguous
31
31
31
43
43
31
32
32
43
43
43
32
32
33
Sites And On-Sit* M^nt Of Waste Residue
July 31 f 1988 - 5 - OSWER Directive 9200.7-01
-------
9347.0-02 Implementation Guidance For Solvent, Dioxin, 44
And California List Wastes Subject to RCRA/KSUA
Land Disposal Restrictions
9355.0-03 Uncontrolled Hazardous Waste Site Ranking 33
Systems (HRS) - A Users Manual
9355.0-04A
9355.0-05C
9355. 0-6B
9355.0-07B
9355.0-08
9355.0-10
9355.0-14
9355.0-19
9355.0-20
9355.0-21
9355.0-23
9355.0-24
9355.1-01
9355.1-02
9355.1-03
9355.2-01
9355.3-01
Guidance (RD/RA)
Guidance On Feasibility Studies (FS) Under
Guidance On Remedial Investigations (RI) Under
CERCXA
Data Quality Objectives Development Guidance
For Remedial Response Actions
wn^ling Remedial Actions *t "Trolled
Hazardous waste Sites
KcwiM^n 3 1 A^^I OM Ort^c^ i no Pr^rt^ortn^^44 al &«"*>4nn C*a^^ MBi'uta^A
Ttm RPM Primer
Terminating Contracts For SPFD runo-Leaa
Stilt^ LflAd Rlf"V4ia'1 Prnjart Manual
Guidance For Conducting RI/FS Tinder CERCLA
j^
33
34
34
34
35
35
35
35
35
35
36
36
44
36
44
(Draft)
July 31, 1988 - 6 - OSWER Directive 9200.7-01
-------
9355.3-02 Guidance For Providing Alternative Water 36
Supplies
9355.3-05 RI/FS Improvements Followup 36
9360.0-02B Removal Cost Management Manual 37
9360.0-03B Superfund Removal Procedures, Revision *3 37
9360.06A Relaticus'iip Of TSie Removal And Ranedial 37
Program Under Die Revised NCP
93-»0.08 Removal Actions At Methane Release Sites 38
9360.0-10 Expedited Response Actions 38
9360.0-12 Guidance On Implementation Of Ine Revised 38
Statutory Limits On Removal Actions
9360.0-13 Guidance On Implementation Of Ihe "Contribute 38
9360.0-14
9360.0-15
9360.0-18
9360.1-01
9360.2-01
9375.0-01
9375.1-06
9375.1-09
9375.1-10
9375.1-11
9375.1-12
Provision
Us* Of SujandflJ R«K»al Authority To Address
NFL And Proposed NPL Sites
Role Of Expedited Response Action Under SARA
Removal Piuyrdm Priorities
Interim Final Guidance on Removal Action
Levels At contaminated Drinking water Sites
Mooei Pioyidu For Removal site rue Management
Guidance on Preparation Of Superfund MDA
(Draft)
Swart Of Cooperative ttgnttntsns To Political
Subdivisions
Interln Guidance On State Participation In
Pm-mwrtial An) TMP^^if^ RMTWVW
Involvtnent Of Indian Tribal Governments in
Superfund Pre -Remedial and Remedial Picgup
(Draft)
Cooperative AyiBHiamis
State Access To EPA Contractors During RumHal
39
39
39
39
39
44
39
39
44
40
40
Process
July 31, 1988 - 7 - OSWER Directive 9200.7-01
-------
9375.2-01
9380.0-02
9380.0-03
9380.0-04
9380.0-05
9380.0-06
9380.1-02
9380.2-01
9380.2-02
9380.2-03
9380.2-04
9380.2-05
State Core Program Funding Cooperative
Agreements
Slurry Trench Construction For Pollution
Migration Controls
Guidance For Cleanup Of Surface Tank And Drum
Sites
Ffl^^dial Action At Wast* Di spousal Sifps Handbook
Leachate Plume Management
fiii rta^^o TVv^muffrfr T?oi* ^T oaniTp O^ *5iiT^a^o
JJI%jmuuaBIw OlwcS
Hazardous waste Bibliography
JJ.LCLL u j«-i-i-^i IMT i vg- xxcol.lldlU./ ui .^p^/rxt i
Technology Guidance For Removal Ana ocpeaitea
Removal Actions
Draft Site Operations Plan
Superfund Innovative Technology Evaluation
(SITE) Proyiaiu Strategy And Program Plan
Draft Decision Criteria For Recycling Wastes
From Superfund Sites
Draft Guidance On Differentiating Alternative
40
40
40
40
41
41
41
44
44
41
44
44
Technologies
Section III Documents in Final Draft Development
42
July 31, 1988
- 8 -
OSHOt Directive 9200.7-01
-------
OSWER Directive No. 9832.13
Part V, g^iafcina Coat Recovery Guidance
Administrative Records for Decisions on Selection of CERCLA
Response Actions. May 29, 1987, OSWER Directive No. 9833.3.
coordination of EPA and State Actions in Cost Reeoyery.
August 29, 1983, OSWER Directive No. 9832.2.
Cost Recovery Actions/Statute of Limitations. June 12, 1987,
OSWER Directive No. 9832.3-1A.
Cost Recovery Actions under the Comprehensive Environmental
Response. Compensation, and Liability Act of 1980 (CERCLJU .
August 26, 1983, OSWER Directive No. 9832.1. Also known as the
1983 Cost Recovery Guidance.
Cost Recovery Referrals. August 3, 1983, OSWER Directive No.
9832.0.
Guidance of Documenting Decisions not to Take Cosfr Recovery
Actions. June 7, 1988, OSWER Directive No. 9832.11.
Guidance on Federal -Suoerfund Liens. September 22, 1987, OSWER
Directive No. 9832.12.
Interim CERCIA Settlement Policy. December 5, 1984, OSWER
Directive No. 9835.0.
Interim Final Guidance Package on Funding CERCIA State
Enforcement Actions at NPL Sites. April 7, 1988, OSWER Directive
No. 9831.6.
Interim Guidance oh Notice Letters. Negotiations, and Information
Exchange . November 19, 1987, OSWER Directive No. 9834.10.
Interim Guidance on Settlements with de Minimis Waste
contributors under Section 122 fen of SARA. June 19, 1987, OSWER
Directive Me. 9834.7.
Interim Guidance; Streamlining the CERCIA Settlement Decision
Proeese. February 12, 1987, OSWER Directive No. 9835.4.
Peliev on Recovering Indirect Costs in CERCIA 1107 Cost
Actions . June 27, 1986, OSWER Directive No. 9832.5.
Potentially Responsible Party Search Manual. August 27, 1987,
OSWER Directive No. 9834. 3-1A.
47
-------
OSWER Directive No. 9832.13
Procedures for Documenting Costs for CERCLA $107 Actions.
January 30, 1985, OSWER Directive No. 9832.0-1A. Also known as
the Cost Documentation Procedures Manual.
Revised Hazardous Waste Bankruptcy Guidance. May 23, 1986, OECM.
Small Cost Recovery Referrals. July 12, 1985, OSWER Directive
No. 9832.6.
State Suoerfund Financial Management and Recordkeepina Guidance.
November 1987, Office of the Comptroller, Financial Management
Division.
Superfi^nd Removal Procedures Revision Number Three.
February 1988, OSWER Directive No. 93*0.0-038. See Chapter 5,
"Potentially Responsible Parties".
48
-------
OSWER # 9834.4-A
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. O.C. 20460
Afi 25 588
o«ice OF
MEMORANDUM
SUBJECT: Transmittal of Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative
Subpoenas
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators, Regions I - X
Regional Counsel, Regions I - X
Directors, Waste Management Divisions, Regions I - X
With this memorandum, I am transmitting guidance on the use
and enforcement of EPA's information gathering authorities under
CERCLA SS 104(e) and 122(e>(3)(B). The attached guidance
document replaces existing guidance entitled, "Policy on
Enforcing Information Requests in-Hazardous Waste Cases," dated
September 10, 1984, to the extent that the earlier guidance
addressed information gathering under CERCLA $104(e).
Attachment
cc: Bruce Diamond, Director, Office of Waste Programs
Enforcement
Lloyd Guerci, Director, CERCLA Enforcement Division,
Office of Waste Programs Enforcement
Fran* Russo, Chief, Compliance Branch, Office of Waste
Programs Enforcement
Robert J. Mason, Acting Chief, Guidance and Oversight
Branch, Office of Waste Programs Enforcement
Lisa X* Friedman, Associate General Counsel, Office of
G«n«ral Counsel
David Buente, Chief, Environmental Enforcement section,
Department of Justice
Nancy Firestone, Deputy Chief, Environmental Enforcement
Section, Department of Justice
Office of Regional Counsel Hazardous Waste Branch chiefs,
Regions I - X
Clem Rastatter, Executive Assistant, Office of Emergency and
Remedial Response
-------
Guidance on Use and Enforcement of CERGLA
Information Requests and Administrative Subpoenas
-------
;•
^
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AUB 2 5 B88
COMKIANTk MOMTORINC
SUBJECT:
FROM:
TO:
Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas
Thomas L. Adams, Jr.
Assistant Administrator
.
Regional Administrators, Regions I - X
Regional Counsel, Regions I - X
Directors, Waste Management Divisions, Regions I
- X
I. INTRODUCTION
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA>, provides EPA
with several methods of obtaining various types of information
from a vide range of entities 1. Section 104(e), entitled
"Information Gathering and Access," grants EPA the authority to
issue "information requests." section I22(e)(3)(B), entitled,
"Collection of Information," authorizes the use of
administrative subpoenas. These information-gathering tools and
enforcement powers represent a significant improvement in EPA's
1 This guidance focuses solely on information
gathering in the context of civil enforcement. In
instances where a criminal enforcement action is contemplated or
pending, Regional personnel should consult with OECM - Office of
Criminal Enforcement, before proceeding with information
gathering under CERCLA.
-------
GUIDANCE ON USE AND ENFORCEMENT OF CERCLA INFORMATION REQUESTS
AND ADMINISTRATIVE SUBPOENAS
TABLE OF CONTENTS
I. INTRODUCTION , 1
II. BACKGROUND 2
A. Prior Information-Gathering Authorities 2
B. Administrative Information-Gathering Distinguished from
Discovery 3
III.DELEGATED AUTHORITIES TO USE INFORMATION-GATHERING TOOLS.. 6
IV. SCOPE AND TIMING OF INFORMATION-GATHERING PROCEDURES 7
A. Information Requests 7
B. Administrative Subpoenas ; 12
V. SERVICE OF INFORMATION REQUESTS AND SUBPOENAS 13
VI. GENERAL DUE PROCESS CONSIDERATIONS IN INVESTICATTV£
PROCEEDINGS PURSUANT TO AN ADMINISTRATIVE SUBPOENA 14
A. Agency Adjudications and Investigations Distinguished.... 14
B. Role of Witness* Counsel at Administrative Subpoena
Proceedings 15
VII.ENFORCEMENT OF INFORMATION REQUESTS AND SUBPOENAS 16
A. Information Requests 16
1. initial Steps 16
2. Administrative orders to Compel compliance 17
3. Civil Actions to Compel Compliance 18
4. Scop* of Judicial Rev lev 20
5. Penalties 21
B. Subpoenas 23
1. Jui isdiction and Venue 23
2. Procedures for Enforcing Subpoenas 24
c. Referrals * 25
VIII. DISCLAIMER 26
-------
2
ability to obtain infirmation. A full exercise of these
authorities, including taxing enforcement action when necessary,
can aid considerably in the implementation of CERCLA, and the
attainment of statutorily mandated goals.
This guidance 2 serves two purposes: 1) it gives an overview
of the information-gathering tools unt'er CERCLA SS104(e) and
122(e) (3) (B) , and 2) it focuses on the steps to be taJcen
throughout the information-gathering process to ensure that EPA
is in the strongest possible position to enforce an information
request or subpoena, 3 if necessary.
II. BACKGROUND
A. Prior Information—Gathering Authorities
Prior to the enactment of SARA, information regarding
hazardous waste sites was gathered, primarily under the pre-SARA
provisions of CERCLA S104(e) and RCRA S3007. Section 104(8X5),
authorizing administrative orders, civil actions and penalties
of up to $25,000 for each day of noncompliance, now eliminates
the nee** to incorporate RCRA $3007 solely for enforcement
purposes. However, in appropriate circumstances where RCRA
information gathering authorities are applicable, Regions may
2 This guidance replaces existing guidance entitled,
"Policy on' Enforcing Information Requests in
Hazardous Waste Cases," dated September 10, 1984, to the extent
that the previous guidance addressed information gathering under
CERCLA $104(8).
3 CERCLA S109(a)(5), as amended, also authorizes EPA
to V*", a*1ministrativ8 subpoenas "in conjunction with
hearings" on Class I administrative penalties. This guidance
does not specifically address the use of administrative
subpoenas in that context.
-------
3
still consider citing $3007 since RCRA provides the option of
enforcement in a proceeding before an administrative law judge.4
The administrative subpoena authority in CERCLA $122 is new
to CERCLA. However, it is rimiiar to the authority contained in
$ll(c) of the Toxic Substances control Act (TSCA), 35 U.S.C.
2610(c). 5
B. Administrative Information-Gathering Distinguished from
Discovery
As an initial matter, a distinction must be drawn between
an investigation conducted by an administrative agency such as
EPA and the information-gathering that commonly takes place
during the discovery phase of a civil action. An administrative
investigation is related in some way to implementation of an
agency's statutory responsibilities. The manner and extent of
the investigations are prescribed by the authorizing statute.
Such an investigation may ultimately lead to the filing of a
civil action, (at which time both parties may be allowed
discovery), or it may simply be related to an agency's ongoing
oversight activities.
4 More extensive guidance on information-gathering
under RCRA $3007 may be found in the guidance,
"Policy on Enforcing Information Requests in Hazardous Waste
Cases," OKU, September 10, 1984.
5 The use of TSCA Sll(c). subpoena authority was
recently upheld by Uie Ninth Circuit in EPA v.
Alveska Pioelina Sarv. Co. . 836 F.2d 443, 446-48 (9th Cir.
1988). in that case, the Court upheld the use of a TSCA
subpoena to gather information relevant to a lawful inquiry
under TSCA, even though the Court recognized that other
environmental statutes, specifically the Clean Water Act, may
later prove to be a more appropriate means of addressing the
environmental problem under investigation.
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4
Discovery, on the other hand, is conducted after an action
is filed in court. The Federal Rules of Civil Procedure govern
the manner and scope of this type of information-gathering. 5
During the course of both an administrative investigation
and discovery, a party may be required to provide oral testimony
or produce documents. 7 However, the information-gathering
tools used in an administrative investigation, and discussed in
this guidance, are not the legal or functional equivalents of
the more familiar interrogatory, deposition or request for
production of documents. 8
6 Nonetheless the Agency is not precluded from using
its administrative information gathering authority
once a civil action is commenced. In re Stanley Plating Co..
Inc.f 637 F. Supp. 71 (D. Conn. 1986), United States v. Browning
- Ferr^a Ch.fflnlc,fll Services . et. a.1. . No. 87-317-B '(M.D. La. ,
November 16, 1987).
7 It should be noted that since there is no
opportunity for cross-examination, testimony
obtained by administrative subpoena might not be admissible at
trial. If the Agency wishes to preserve a respondent's
testimony for trial, rather than use it only to develop other
admissible evidence, two options are available. First, when it
becomes clear that the testimony is necessary for trial, the
respondent's deposition can be taken in the usual course of
discovery. Alternatively, if the Agency expects to bring an
enforcement action and it is not likely that the respondent win
be available later during the discovery phase of the case, it
may be possible to preserve a witness* testimony pursuant to
Fed.R.Civ.P. 27 either in lieu of issuing an administrative
subpoena, or following the issuance of a subpoena, see.
Petition of Gary Conatr. r Inc.. 96 F.R.D. 432, 433 (D.Colo.
1983), Aart v. Cor*. 512 F. 2d 909. 911-913 (3d Cir. 1975), In re
Boland. 79 F.R.O. 665, 667 (D.D.C. 1978), Petition of Benjamin.
52 F.R.D. 407 (E.D. La. 1971).
8 The Notes of the Advisory committee on the Federal
Rules ,' rivil Procedure explicitly state that the
provisions of Fed.R.Civ.P. 45 (Subpoenas) do not apply to
administrative subpoenas. Other Rules are less explicit but are
(continued...)
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Tn n.A, v. Morion Salt Co. 338 U.S. 632, 642-643 (1950),
the Supreme Court described the difference between
administrative investigatory power and a court's adjudicatory
power in the following manner:
The only power that is involved here is the power to
get information from those who can best give it and
who are most interested in not doing so. Because
judicial power is reluctant if not unable to summon
evidence until it is shown to be relevant to issues
in litigation, it does not follow that an administrative
agency charged with seeing that the laws are enforced
may not have and exercise powers of original inquiry.
It has a power of inquisition, if one chooses to call
it that, which is not derived from the judicial
function. It is more analogous to the Grand Jury,
which does not depend on a case or controversy for
power to get evidence but can investigate merely on
suspicion that the law is being violated, or even
just because it wants assurance that it is not.
Limitations on this information seeking power do exist.
However, the limitations themselves are narrow in scope.
Of course a governmental investigation ... may be of
such a sweeping nature and so unrelated to the matter
properly under inquiry as to exceed the investigatory
power... But it is sufficient if the inquiry is
within the authority of the agency, the demand is not
too indefinite and the information sought is
reasonably relevant, id- at 652 (citations omitted).
Thus, there are three basic parameters which are relevant to a
request for information or an administrative subpoena. It must
be:
8(...continued)
also, by their terms, inapplicable. For example. Fed.R.Civ.p.
26 (General Provisions Governing Discovery) contemplates, an
ongoing oversight role of the court. In administrative
information gathering, the court has no role unless specifically
petitioned by the government to enforce a subpoena or
information request, see. Belle Fourehe Pipeline Co. v. U.S..
751 F.2d 332, 334 (10th Cir. 1984), citing Raismart v. Caolin.
375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.Zd 459 (1964).
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1. witfcia the underlying statutory authority of the agency;
2. Sufficiently definite/specific;
3. Reasonably relevant to the agency's basic inquiry.
In addition, it should be noted that courts may also consider
whether a request is unduly burdensome. 9
III. DELEGATED AUTHQRTTY TO USE INFORMATION qATHESING TOOLS
On January 23, 19f7, the President signed Executive Order
12580 delegating information-gathering authority in ss 104(e)
and 122 to the Administrator of EPA. 10 This authority was, in
turn, delegated from the Administrator to the Assistant
Administrator for Solid Waste and Emergency Response, the
Assistant Administrator for Enforcement and Compliance
Monitoring and the Regional Administrators by Delegation 14-6,
"Inspections, Sampling, Information Gathering, Subpoenas and
Entry for Response," signed on September 13, 1987.
Under Delegation 14-6, the authority of the Regional
Administrator and the Assistant Administrator for Solid Waste
and Emergency Response to issue compliance orders or subp *nas
is limited by the requirement that they first consult with the
Assistant Administrator for Enforcement and Compliance
* See, e.g.. F.T.C. v. Taxaeo. 555 F.2d 862, 882 (D.C.
Cir. 1977), where the court stated,
the question is whether the demand is unduly
burdensome or unreasonably broad, some burden on
subpoenaed parties is to be expected and is
necessary in furtherance of the agency's legitimate
inquiry and the public interest.
10 The Administrator's authority, however, is limited
with regard to federal facilities. (See sections
3(j)(l) and 3(b)(l) of Executive Order 12580.)
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7
Monitoring or his/her designee. On November 19, 1987, the
Assistant Administrator for Enforcement and Compliance
Monitoring redelegated his consultation autnority under
Delegation 14-6 to the Associate Enforcement Counsel for Waste.
IV. SCOPE AND TIMING OF INFQRMVTIQL GATH"ESTW; PROCEDURES
A . Inf onna/tioTi Requests
The scope of investigation authorized by CERCLA si04(e)
is broad. CERCIA S104(e)(2), as amended by SARA, provides:
Any [duly authorized] officer, employee, or represen-
tative [of the President]... may require anv
who has or mav have information relevant to any of
the following to furnish, upon reasonable notice,
information or documents relating to such matter:
(A) The identification, nature, and quantity of
materials which have been or are generr.tec" , t-eated,
stored, or disposed of at a vessel or facility or
transported to a vessel or facility.
(B) The nature or extent of a release or threatened
release of a hazardous substance or pollutant or
contaminant at or from a vessel or facility.
(C) Information relating to the ability of a person
to pay for or to perform a cleanup.
In addition, upon reasonable notice, such person
either (i) shall grant any such officer, employee, or
representative access at all reasonable times to any
vessel, facility, establishment, place, property, or
location to inspect and copy all documents or records
relating to such matters or (ii) shall copy and
furnish to the officer, employee, or representative
all such documents or records at the option and expense
of such person. (Emphasis added.)
Section 104 (e) (!>' provides:
The authority of this subsection may be exercised
only for the purposes of determining the need for
response, or choosing or talcing any res^nse action
under this title , or otherwise enforcing the
orovisic — of this title. (Emphasis added.)
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8
Initial attempts to gather information about a given site
commonly will be through the use of information requests issued
under CERCLA Sl04(e). While an information request may be sent
in advance of a general notice letter, as a component of the
general notice letter, or after the general notice letter, as
needed, 11 an effort should be made to issue initial information
requests earlier rather than later in the PRP search process to
aid in the process of establishing liability and clarifying the
universe of PRPs. Initial information requests typically should
see* the following types of information:
-relationship of the PRP to the site;
-business records relating to the site, including,
but not limited to, manifests, invoices, and record
books;
-any data or reports regarding environmental monitoring
or environmental investigations at the site;
-descriptions and quantities of hazardous substances
transported to, or stored, treated or disposed at
the site;
-any arrangements made to transport waste material to
the site;
-names of any transporters used in connection with
th« site;
-where financial viability is or will be at issue, and
the Agency is unable to assess financial viability
effectively through review of publicly available
11 For further information on notice letters, their
timing, and content, see "Interim Guidance on Notice
Letters, Negotiations and Information Exchange," 53 red. Reg.
5298 (Feb. 23, 1988).
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data, 12 information relating to ability to pay for or
perform a cleanup; 13,
Where financial viability is or will be at issue,
information requests regarding insurance coverage should strike
a balance between the need to make an initial determination
about the extent of an insured's coverage and the need to avoid
requiring an insured to construe the coverage of its policies.
If a request is overly specific, and a party (the insured) fails
to identify insurance that may afford coverage regarding a
response action, the insurer may attempt to use that failure to
identify the policy in the information request to avoid payment
12 The ability to obtain financial information about a
PRP from a source other than the PRP itself is
limited by the Right to Financial Privacy Act, 12 U.S.C. 3401,
gl sag., which limits Government access to a customer's
financial records at a financial institution in accordance with
the provisions of the Act. In most cases, it will not be
necessary to seek information about a PRP's assets from a
financial institution. That information can be obtained from a
PRP as a condition of negotiation if the PRP raises ability to
pay as an issue. If circumstances arise where a Region believes
that it is necessary to obtain information from a financial
institution, it should first consult with Headquarters.
13 Under CERCLA Sl04(e)(2)(c), EPA now has explicit
authority to request information relating to the
ability of a person to pay for or perform a cleanup. Before it
was amended, CERCZA S104 authorized EPA simply to obtain
"information relating to [hazardous] substances." EPA typically
construed tni» language to include all information that EPA
considered, relevant to.- any aspect of enforcement. In n.s. v.
Charles Gmoram Trnetino Co.. 624 F. Supp. 1185 (D. Mass.), af f'd
on other grounds. 823 F.2d 685 (1st Cir. 1987), the court took
issue with EPA»s broad interpretation of "information relating
to [hazardous] substances" and denied EPA's request for
information relating to a defendant's ability to pay for or
perform a cleanup. The court held that information about assets
and insurance cc raje "in no way informs EPA about the
hazardous substances involved." 624 F. Supp. at 1188. This
decision is no longer supported in light of CERCLA Sl04(e)(2)(c)
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10
under the policy. Failure to identify the policy in a response
to an information request may tend to show that the insured did
not intend to address that type of liability with the policy in
issue. Such subjective intent is often critical in litigation
over t .ie extent of coverage of insurance policies. The ultimate
result might be that potentially fewer funds would be available
for a response action, and the potential for settlement
diminished.
Hence, requests for information about insurance policies
should be as neutral as possible. Rather than seeking
information about discrete periods of time during which it is
suspected that a given party may be active at a situ, the
information request should cover the period from the first known
instance of waste disposal to the present. Terms such as
"pollution exclusion," "sudden," "non-sudden," or "accidental"
should be avoided and the insured should not be asked to state
whether its insurance contains such exclusions or coverage.
Instead, the information request should simply ask the insured
to provide a list of all property and casualty insurance (e.g.
comprehensive general liability, environmental impairment and
automobile liability insurance) and to specify the insurer,
policy, effective dates, and per occurrence policy limits for
each policy. In tl^s way, the Agency obtains the information it
needs to make an initial determination about insurance coverage,
and the insured has not compromised any potential insurance
coverage should it ultimately be liable for any response costs.
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11
In the alternative, the insured may always be given the option
of providing copies of tne policies themselves. A similar.
general request aJbout directors* and officers' insurance may
also be made in situations where personal liability of a
corporation's directt rs or officers is or will be at issue.
Information requests shomd include a brief identification
and description of the site, a citation to the statutory
authority, and a general statement setting forth the purpose of
the request and its relation to the overall case. An
information request should also state the date by which the
recipient must respond or adequately justify his inability to
respond. This due data should reasonably reflect the type and
volume of information that the agency anticipates will be
responsive to the request. Thirty, days is usually adequate, rn
addition, the information request should state that the
respondent may have an opportunity for consultation with the
Agency, and that failure to respond may give rise to a p- iity.
An information request should also require the recipient to
indicate the types of files searched in response to the request,
and ask the recipient to submit an affidavit describing his
search efforts if tne search does not disclose any of the
information sought. 14
14 Previous guidance, "Policy on Enforcing Information
Requests in Hazardous Waste Cases", September 10,
1984, suggested that an affidavit be requested in a second,
"reminder" letter. However, by including an affidavit request
with a request for a description of the types of files searched
in the initial information request, one can more quickly
(continued...)
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OSVER DIRECTIVE t 9834. 4A
12
A model information request, largely developed by Region I,
is attached as Attachment 1.
B.
Section 122(e)(3)(B) gives EPA the power to issue
administrative subpoenas requiring the attendarce and testimony
of witnesses (referred to as a subpoena ad tea- -.if igandumi and
the production of documents (referred to as a subpoena duces
tegum) . Such subpoenas may be issued as is "necessary and
appropriate" for performing a non-binding preliminary allocation
of responsibility (NEAR) "or for otherwise implementing1* CERCLA
Section 122.
Since the language of 5122 is broad and permits the use of
administrative subpoenas "for otherwise implementing [Section
122 1," there is no requirement that EPA first decide to prepare
an NBAR before issuing an administrative subpoena or that the
information gathered by an administrative subpoena be used only
for an NBAR. 1S Instead, an administrative subpoena may be used
once the Agency has begun to implement the settlement process
under 5122 (e.g. through initiation of informal discussions or
14(...continued)
determine wnich information requests should be followed up with
an enforcement action.
15 Nonetheless, the factors that may be considered when
preparing an NBAR are a useful outline of the types
of information that may be reached, at a minimum, with an
administrative subpoena. These factors, are set forth in
Si22(e)(3) and include: "volume and toxicity of wastes, strength
of the evidence, ability to pay, litigative risXs, public
interest considerations, precedential value, and inequities and
aggravating factors."
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13
formal negotiations with some or all affected PRPs, or where the
Agency judges that available information points to favorable
prospects for settlement). Since the.use of administrative
rubpoenas may be judicially challenged, it is important to
.dentify and document the reasons relied upon in deciding to use
the authority in §l22(e)<3)
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14
person mist be served. Service upon a domestic corporation, or
upon a partnership or other unincorporated association, should
be made by personal service or certified mail to an officer,
partner, managing or general agent, or to any other person
authorized by law to receive service of process. The person
serving the subpoena, including the person who actually mails
the subpoena when that method of service is used, must complete
an affidavit of service at the time of service. (See Attachment
2 for a model subpoena and affidavit of service. )
The statute places no explicit limit on the distance that a
witness may be required to travel to appear in response to a
subpoena. Potential locations for such an appearance include an
EPA regional office, EPA Headquarters, a local U.S. Attorney's
office, a court reporter's office, or any other location
considered appropriate under the circumstances.
VI. GENERAL DUE PROCESS CONSIPERAJ^pfl'S JEN INVESTIGATIVE
PURSUANT TO AN ADMINISTRATIVE SUBPOENA
A. Agency Adjudications and Tnvestigaticna Distinguished
When an agency such as the EPA orders a person to appear at
an agency proceeding, the procedural rights of the person
ordered to appear vary depending upon whether the agency's
purpose i» to adjudicate or to investigate. Examples of EPA
adjudication include the issuance of compliance orders or the
ass-.sment of civil penalties under S3008(a) of RCRA. 'Before
the Agency nay issue a compliance order or assess civil
penalties under RCRA $3008 (a), the person against whom the
Agency is taxing action is accorded the procedural rights set
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15
forth in 40 CTR Part 22. 16 These rights are similar to those
of a defendant in a civil trial and include the right to notice,
to submit evidence, and to cross-examine.
In contrast, when an agency issues an administrative
subpoena pursuant to S122(e)(3)(B), its purpose is only to
investigate or gather information and "it is not necessary that
the full panoply of judicial procedures be used." Hannah v.
Larche. 363 U.S. 420, 442 (1960).
[W]hen...agencies are conducting nonadjudicative, fact-
finding investigations, rights such as apprisal,
confrontation, or cross-examination generally do not
obtain, id. at 446.
Despite this limitation, a witness may nonetheless invoke
his Fifth Amendment privilege as to particular questions
presenting a threat of self-incrimination. U.S. v. Mainiic. 489
F.2d 682, 685 (5th Cir. 1974).
B. Role of Witness* Counsel a/t Administrating SUb.'po.flnS
Proceedings
The practical effect of the fact that witnesses have limited
procedural rights during information-gathering under an
administrative subpoen* is that the role of a witness' counsel
is limited. Although $555 (b) of the Administrative Procedure
Act (APA) provides a person with the right to counsel at any
16 Part 22 procedures *o not apply to compliance orders
issued under CERCLA S104(e)(5). Due process is
assured under slo*(e)(5) by the statutory requirements that the
respondent have an opportunity to confer with the Agency prior
to issuance of the order (discussed below) and that orders be
enforced by commencing a civil action. Similarly, Part 22
procedures do not apply to the assessment of penalties under
Sl04(e) as that can only be accomplished by commencing a civil
action.
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16
agency proceeding at which he is compelled to appear,
"representation" under the APA "varies in meaning depending upon
the nature of the function being exercised." F.C.C. v.
Schreiber . 329 F.2d 517,526 (9th Cir. 1964).
[WJhile counsel may, a* a matter of right, object and
argue objections on the record, just as he may, as a
matter of right, cross-examine and call witnesses in a
trial-type adjudicatory proceeding, these rights do not
exist in the fact-finding, nonadjudicative investigation
unless specifically provided by statute or duly
promulgated rules. The right to object and argue
objections on the record is not to be implied, here,
froa use of the word "represented" [in the
Administrative Procedure Act. ]
Thus, although subpoena proceedings under CERCLA are recorded,
and the witness is under oath and may have an attorney present
for consultation, counsel for the witness is not allowed to
"speak to the record," to cross-examine, to aid in developing
testimony, or to otherwise "coach" the witness. Furthermore,
other parties potentially affected by the investigation do not
have a right to be present during the questioning.
VII. ENFQRCEMirprp OF INFORMATION pWOTTff^TS MITJ SUBPOENAS
A.
1.
When t2M deadline for responding to an information request
has passed, a reminder letter should be sent to the unresponsive
information request recipient, 1) informing the recipient that
S104(e) provides for a penalty of up to $25,000 per day for
noncompliance, and 2) stating the date after which a civil
judicial or administrative enforcement action may be initiated.
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17
The reminder letter should also provide an opportunity for
consultation. 17 This will fulfill the requirement of
S104(e)(5)(A) if enforcement by administrative order is
contemplated and should also fulfill any due process
requirements for record review. (See Sectica VII.A.4., "Scooe
of Judicial Review," below.) Whenever a recipient trices
advantage of an opportunity for consultation, the issuing
official should send a letter to the recipient summarizing any
contacts with the recipient, and stating EPA's resolution of any
objections. If there is no response or if the response to a
request is still unsatisfactory after the reminder letter
deadline has passed, EPA may compel compliance wiui ihe request
through either an administrative or judicial action.
2. Administrative Orders to Compel Compliance
Under CERCLA $104(e)(5)(A), EPA can issue an administrative
order directing compliance with an information request. Each
administrative order should include a finding by the Regional
Administrator that there exists a reasonable belief that there
may be a release or threat of release of a hazardous substance
and a description of the purpose for which the information
request va« issued. The order should state the date on which it
becomes effective and also advise, the respondent Uiat penalties
17 The statute leaves the decision whether to provide
notice and opportunity for consultation to the
discretion of t'> , A'ency. However, the Agency believes that it
is in the best interests-of all concerned to provide an
opportunity for consultation whenever possible, particularly
prior to the issuance of an administrative order.
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18
of up to $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with the order.
In addition, the order should note that an opportunity for
consultation was provided and should briefly summarize any
contacts with the respondent. 18
3 . Civil Actions •ho Compel
Alternatively, or in the event that an administrative order
does not lead to compliance, EPA, through DOJ, can commence a
civil action under S104(e)<5) (B) . 19 In that civil action, EPA
can see* injunctive relief and/or civil penalties not to exceed
$25,000 per day for each day of noncompliance.
A referral to DOJ for an inaaequate response or no response
18 Normally, th* consultation requirement will fae
fulfilled by offering the recipient an opportunity
to contact the EPA with questions or objections, in the
information request itself or in any subsequent reminder letter.
Given this prior opportunity for consultation and the narrow
scope of the order, it generally will not be productive *o delay
the order and offer another opportunity for consultat.i.c:
However, if it is likely that additional discussion will lead
directly to compliance, and the extra delay does not result in
an unreasonable threat to human health or the environment, the
Region may provide another opportunity for consultation prior to
issuance of the order.
19 Section I04(e)(5)(B) states:
The President may ask the Attorney General
commence a civil action to compel compliance
with a request QX order r-*ferrea to in
subparagraph (A).
EPA's ability to commence a civil action without first issuing
an administrative order to compel compliance under S104(e) was
upheld in U.S. v. Charles George Trucking Co.. No. 85-2463-WD
(1st Cir. March 31, 1988). See also, n.S. v. Nor-fchside Sanitary
Landfill. Ine.. No. IP 88-172-C, (S.D. Ind. April 12, 1988).
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19
at all should include all evidence needed to support the case.
This includes evidence or findings that:
(l) EPA.has a "reasonable basis to believe that there may
be a release or threat of a release of a hazardous substance,
pollutant or conraminant" at a given site or vessel;
(2) the information request was issued for the purpose of
determining the need for a response or choosing or taJcing any
response action under CERCLA Title I, or otherwise enforcing
CERCLA Title I, with respect to the site or vessel;
(3) the respondent was requested to provide information
relating to one or more of the three categories of information
identified in S104(e)(2)(A)-(C);
(4) respondent did not comply with the request in a timely
manner.
(5) where appropriate, respondent should pay a civil
penalty, recommended at $ . (See Section VII.A.5.,
"Penalties," below.)
In addition, the referral should include proof of service
and should address possible defenses, such as that a good faith
effort was made to comply, or that the request for information
or documents is arbitrary and capricious, unduly burdensome, an
abuse of discretion or otherwise not in accordance with law.
The decision to either issue an administrative order or
initiate a civil action must be made on a case-by-case basis.
Where there is r oo . to believe that an administrative order
will not bring immediate compliance, a civil action should be
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20
favored. Tor example, if the recipient of an information
request has made little or no effort to respond to the request,
or has a history of disregarding requests for information or
delaying responses to requests, issuing an administrative order
may serve little purpose. Wh'.le an administrative order
typically can be issued withii a shorter period of time than a
complaint can be filed, the overall duration of the enforcement
action may well be extended if the administrative order is
disregarded since enforcement of the order will be through the
referral and filing of a civil judicial action.
4. Seop« of Judicial Review
In an action to enforce an information request or an
administrative order for compliance with an information reouest,
the court's review is limited to considering whether the
information request is "arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law."
Sl04(e)(5)(B)(ii). 20 This clearly limited review should not
serve as an opportunity to review other aspects of the case,
20 Judicial review is not thusly limited when the
amount of the penalty is the issue before the court.
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21
such as remedy selection or liability. 21 (Cf . u.s. v. western
. Ing. . No. C83-252M (W.D. Wash. February 19, 1986).
In cases where the Agency has .provided an opportunity for
consultation regarding the administrative order, and has created
an administrative record reflecting the parameters and elements
noted on pages 6 and 19, above, Liie Government may argue that
judicial review of the administrative order should be limited to
an administrative record. This argument is based upon the
language in $l04(e) (5) (B) that provides for judicial review
under the arbitrary and capricious standard. The success of
obtaining record review hinges on providing and documenting
adequate procedural due process administratively. 22
5. Penalties
Under Sl04(e) (5) (B) (ii) of CERCLA, civil penalties may be
assessed against any person who unreasonably fails* to comply
21 Related to the scope of judicial review is the
degree to which a defendant may engage in ^ -:overy-
one e an enforcement action is initiated. Discovery gene, .ly is
restricted in enforcement proceedings involving administrative
subpoenas (see n. 27, infra) and similarly, should be restricted
in actions brought under $104(e^ of CERCLA. if discovery is
allowed at all in a given action, the Government's position is
that its scope should be limited to addressing the parameters
for administrative investigations noted on page 6.
22 It may also be possible to seek record review of
an information request without first issuing an
administrative order since CERCLA Sl04(e)(5)(B)(ii) provides for
review of both information requests and administrative orders
under an arbitrary and capricious standard. Before seeking
record review of an information request, the Agency would first
have to provide sufficient procedural due process, including on
opportunity for consultation, and an administrative record would
have to be created reflecting the parameters and elements noted
on pages 6 and 19, above.
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22
with the initial information request or subsequent compliance
order. The question of whether to seeJc penalties may arise in
two situations: 1) where injunctive relief is sought to compel
the respondent to answer the information request and penalties
are sought in addition to injunctive relief; a.id 2) where the
respondent has answered the information request, albeit not in a
timely manner, and penalties are the only relief sought. 23
In both situations, to support penalties, the evidence must
demonstrate: 1) that the information request is enforceable, 24
and 2) that the respondent's conduct was unreasonable. To
assess the reasonableness of a respondent's conduct, and thus
determine whether to seek penalties, Regional personnel should
consider factors such as the respondent's good faith or lack of
good faith efforts to comply with--the information request, and
23 In information request enforcement actions,
penalties can be assessed against a respondent even
if tie eventually complies with the information request. See
e.g. P.a. v. Liviola. 60S T. Supp. 96 (N.D. Ohio 1985), U.S. v.
QuifrlM Seoroa Trucking Co. . 823 F.2d 685 (1st Cir. 1987).
24 Tor an information request to be enforceable, it
must conform to the basic parameters noted above on
page 6. toy issue of ..the reasonableness of the information
request itself is subsumed by these parameters. Tms, once it
is determined that an information request is enforceable, the
focus in terms of liability for penalties is limited to the
respondent's conduct. The statute provides that a civil penalty
may be imposed "against any person who unreasonably fails to
comply with" an Agency request or administrative order. Failure
to respond adeq «e.*y to an information request is presumptively
unreasonable, and the recipient of the request bears the burden
of proving that noncompliance with that request is in fact reasonabi
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23
any willfulness or negligence associated with the respondent's
actions. 2S
B.
1 . Jurisdiction and Venue
If a respondent to an administrative subpoena refuses to
appear uu testify or provide documentary evidence, or refuses to
answer any or all of the questions put to him, the Agency may
commence enforcement proceedings in U.S. district court. 26
CERCLA S122(e) (3) (B) states:
In the event of contumacy or failure or refusal
of any person to obey any such subpoena, any district
court of the United states in which venue is proper
shall have jurisdiction to order any such person to
comply with such subpoena. Any failure to obey such
an order of the court is punishable by the court as
contempt thereof.
Venue for such an action "shall li-e in any district court in
which the release or damages occurred, or in which the defendant
resides, may be found, or has his principal office." CERCLA
SH3(b).
2£ The decision to seek penalties should also include
consideration of the Supreme Court's recent decision
in 1*1111 v. Unload States. 481 U.S. , 107 S.Ct. , 95 L.Ed.
2d 365 (1987), which provided for a 7th Amendment right to a
jury trial in the context of a Clean Water Act enforcement case,
where civil penalties were sought.by the Government.
26 All proceedings in the U.S. district coc->. must be
initiated by the Department of Justice on behalf of
EPA. The court lacks jurisdiction to review the propriety of an
administrative subpoena upon motion of a respondent. Belie
Fourehe PiMlinf Co. v. P.S. . 751 F.2d 332 (10th Cir. 1984). If
a respondent wishes to challenge a subpoena, he may refuse to
cooperate and force the Government to initiate an enforcement
action.
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24
2. Proee<8tirofl for Enforcing
Enforcement proceedings are begun by submitting a petition
to any appropriate federal district court seeking an order that
the respondent show cause why he should not be ordered to comply
with the subpoena. (See Attachment 3, model petition.) Although
Fed. R. Civ. P. bl(a)<3) states that the Federal Rules of civil
Procedure apply to administrative subpoena enforcement
proceedings "unless otherwise provided by statute or by rules of
the district court or by order of the court in the proceedings,"
courts have consistently held that subpoena enforcement
proceedings are summary, and that discovery is generally
inappropriate given the scope of the issues before the court. 27
To prevent a respondent from attempting to engage in
discovery prior to the show cause .hearing, the petition may
include a request that Rules 26-37 and 45 be suspended unless
specifically reinstituted by the court following the hearing.
The petition, accompanied by affidavits and legal memoranda,
must demonstrate that the subpoena was issued for a lawful
27 Tne court, in its discretion, may order discovery,
bat only where the defendant meets the "heavy burden
of shoving extreme circumstances that would justify further
inquiry..." n.a. v. RFB Petroleum, me.. 703 r.2d 528, 533
(Temp. Em*rg. Ct. App.') iquoting U.S. v. Jurcn. 687 F.2d 493, 494
(Temp. Emerg. Ct. App. 1982).] This burden is not a "meager
one...[the defendant] must come forward with facts suggesting
that the subpoena is intended soieiv to serve purposes outside
the purview of the jurisdiction of the issuing agency." N.L.R.B.
v. Interstate Dress Carriers. 610 F.2d 99, 112 (3d Cir. 1979)
(emphasis added litre ions omitted). See also n.s. v. McGovern.
87 F.R.D. 590 (M.D. Pa. 1980), Lvnn v. B-irterman. 536 F.2d 820,
825 (9th Cir.-) cert, denied gnfrf nom. Bidarman v. Hills. 429 U.S.
920 (1976).
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25
purpose and is relevant to an agency investigation. At the show
cause hearing, the burden is on the respondent to show that the
subpoena is unenforceable in some respect.
At the conclusion of the show cause hearing, the court may
order compliance, deny enforcement or modify the subpoena.
Subsequent failure of the respondent to comply with the court's
order may result in contempt proceedings against the respondent.
C. Referrals
Referrals to the Department of Justice of cases to enforce
information requests and administrative subpoenas will be
handled in accordance with the procedures set forth in the
January 14, 1988 memorandum from the Assistant Administrator for
Enforcement and Compliance Monitoring entitled, "Expansion of
Direct Referral of Cases to the Department of Justice." In
time-critical situations, the procedures outlined in the the
April 15, 1988 memorandum from the Acting Associate Enforcement
counsel for Waste entitled, "OECM-Waste Procedures for
Processing Oral and Other Expedited Referrals1* should be
followed.
A referral to enforce an information request will not differ
significantly from a referral to enforce most other sections of
CERCLA. However, due to the summary nature of *r action to
enforce an administrative subpoena, a referral to enforce an
administrative subpoena should contain certain additional
elements not commonly included in other referrals.
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26
A referral to enforce an administrative subpoena should
consist of a draft petition for an order to snow cause, a draft
memorandum of points and authorities in support of the petition,
and a draft order to accompany the petition. The memorandum of
points and authorities should briefly set out the facts of the
case and apply the legal standards for enforcement to chose
facts. In addition, the memorandum should address any arguments
or defenses that the respondent is likely to raise.
The referral should also contain all necessary exhibits in
support of the petition, including an affidavit of service, a
copy of the subpoena, an affidavit supporting the facts alleged
in the petition from a person with knowledge of those facts, and
any other relevant material which serves as the administrative
record documenting the subpoena process*
VIII.
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for empl^ es of
the U.S. Environmental Protection Agency. They do not
constitute rulemaking by the Agency and may not be relied upon
to create a right or a benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
take action at variance with this memorandum or its internal
implementing procedure? .
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MODEL Information request Attachment
CERTIFIED MAIL [OR DHL] [Note:- No certified or express
mail to P.O. Boxes]
[Date]
FPRP Name!
TPRP Address!
Re: Request for Information Pursuant to Section 104 of
CERCLA [and Section 3007 of RCRA,] for [Site Namel
in rsite location 1 hereinafter referred to as "the Site"
Dear Sir or Madam:
The United States Environmental Protection Agency (EPA) is
currently investigating the source, extent and nature of the
release or threatened release of hazardous substances,
pollutants or contaminants, or hazardous wastes on or about the
r site Namel in rsite Location 1 (the Site). This investigation
requires inquiry into the identification, nature, and quantity
of materials that have been or are generated, treated, stored,
or disposed of at, or transported to, the Site and the nature or
extent of a release or threatened release of a hazardous
substance or pollutant or contaminant at or from :-he Si*- a. EPA
also is seeking information relating to the ability of a person
to pay for or to perform a cleanup of the Site.
Pursuant to the authority of Sett ion 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. S 9604, as amended, [and Section 3007 of the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. S
6927,] you are hereby requested to respond to the Information
Request set forth in Attachment A, attached hereto.
Compliance with the Information Request set forth in
Attachment A is mandatory. Failure to respond fully and
truthfully to the Information Request within T insert reasonable
of davs ^Q respond, soell out m*Hl^<>r and pt»» rp^ber in
. e.g.. thirty (30)1 days of receipt of this letter,
or adequately to justify such failure to respond, can result in
enforcement action by EPA pursuant to section 104 (•) of CERCLA,
as amend**, [and/or Section 3008 of RCRA.] [Each of these
statutes/ This statute] permits EPA to see* the imposition of
penalties of up to twenty-five thousand dollars t $25, 000) for
each day of continued non-compliance. Please be further advised
that provision of false, fictitious, or fraudulent statements or
representations ^uy subject you to criminal penalties under 18
U.S.C. S 1001 or Section 3008 (d) of RCRA.
This Informaf .-- request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, 44 U.S.C.
3501, et seq.
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OSWER I 9834.10-la
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
/s « QF
2 6 :Q88 SOLI° WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Waiver of Headquarters Approval for Issuance of RD/RA
Special Notice Letters at the Time of ROD Signature
FROM: Bruce M. Diamond, Director
Office of Waste Programs Enforcement/? OS-500)
Henry L. Longest II, Director ^>.—v»
Office of Emergency and Remedial^Bteiponse (OS-200)
TO: Waste Management Division Directors, Regions I-X
Regional Counsels, Region I-X
The Interim Guidance on Notice Letters, Negotiations, and
Information Exchange (OSWER Directive Number, 9834.10, October
19, 1987) provides generally for the issuance of RD/RA special
notice letters when the draft FS and proposed plan are released
to the public for comment. The guidance further states that if
the RD/RA special notice is issued later in the process (i.e.,
when the ROD is signed) the Regional Administrator must obtain
prior written approval from EPA Headquarters. Effective
immediately, it is no longer necessary to obtain written approval
from the Directors of OERR and OWPE to issue special notice
letters at ROD signature.
As the policy states, the strongly preferred option is to
issue: special notice when the proposed plan is released for
public comment in order to begin the negotiations process early,
ensure prompt initiation of remedial design and remedial action
and initiate any necessary enforcement action if negotiations are
unsuccessful. Issuance of special notice at the ROD stage should
continue to be the exception rather than the rule.
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-2-
Management of- the negotiations time frames remains a high
priority and is essential to the successful completion of RL/RA
negotiations and as such, it warrants continued attention by
management. This waiver does not change the Regional
Administrator's authority to extend the special notice Moratorium
up to 30 days where justified. Beyond that, requests .or
Assistant Administrator extensions to the special notice
moratorium should continue to be submitted in a timel} fashic n.
Special notice information must be entered into CZRCLXS on a
regular basis. OWF2 will continue to monitor negotiations and
provide assistance, as appropriate.
We appreciate your cooperation. If you have any questions,
please contact Michelle Roddy at FTS 382-7790.
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** UNITED STATES ENVIRONMENTAL PROTECTION AGENCV
* /VASrllNGTON. 3.C. 20460
OCT 2 I October 21,1988
SOUO WASTE ANO EM£BGeMCv
OSWER DIRECTIVE 9831.8
MEMORANDUM
SUBJECT: Counting State-l^ad Enforcement NPL Sites Toward the
CERCLA Section 116(•) Remedial Action Start Mandate
/.^ J'-X&L
FROM: J. Winston Porter
Assistant Administrator
TO: Regional Administrators
Regions I - X
I. PURPOSE
The purpose of this memorandum is to outline the criteria
and procedures for counting State-lead enforcement National
Priorities List (NPL) sites toward the CERCLA Section 116(e)
remedial action (RA) start mandate.
The counting of State-lead enforcement NPL sites is but one
element of an evolving strategy for State participation in the
CERCLA enforcement program. There are many other important
aspects, including the need for consistent remedies and
coordination of enforcement activities at Federal-lead and state-
lead sites.
II. BACKGROUND
In our efforts to achieve the goal of 175 new RA starts by
October 1989 and an additional 200 by October 1991, it is
appropriate: to include State-lead enforcement NPL sites where
States) have indicated a willingness and ability to manage site
remediation in an appropriate manner and within reasonable
tiaefrmMS, as noted below.
In implementing this memorandum, the direction provided in
the December 28, 1987 memorandum "OSWER Strategy for Management
Oversight of the CERCLA Remedial Action Start Mandate" (OSWER
Directive 9355.0-24) also applies to sites classified as State-
"".cad enforcement. Of particular note i* the application of the
several key elements of Section 116(e) which were discussed in
that guidance. This includes whether a RA is "substantial *nd
continuous" and whether the particular RA start is "in addition
to those facilities on which some remedial action has comxenc?
prior to enactment of SARA."
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9831.8
The following criteria must be met before counting state-
lead enforcement sites toward the goals. Along with each
criterion, some clarification is provided to assist the Regional
offices in determining whether the criterion has been met.
III. CRITERIA
1. The site ia on the National Priorities List fNPL).
CERCIA specifies "Facilities on the National Priorities
List.1* This interpretation does not include proposed NPL sites.
2. The site is covered bv agreement between EPA and the State.
NPL sites to be designated as State-lead enforcement from
the date of this memorandum forward must be covered under a
cooperative agreement, Superfund Memorandum of Agreement (SMOA)
or other EPA-State enforcement agreement in order to be counted
toward the Section 116(e) mandate. (Note that the proposed
revisions to the NCP may require States to enter into a formal
agreement with EPA to become the lead agency for enforcement
action at an NPL site or to seek EPA concurrence on the remedy at
an NPL site.)
For cites designated as State-lead enforcement prior to this
memorandum, the Region has the discretion to decide whether an
agreement is necessary prior to issuing a finding on the
consistency of the remedy with CERCIA cleanup standards. If a
written agreement is not required for sites designated prior to
this memorandum, the Region must still demonstrate that it worked
closely with the stats to ensure that the criteria set forth in
this guidance have been complied with and that remedial action
has commenced.
3. The remedial action to be performed is consistent with
the cleanup standards of Section 121 of CERCIA.
This criterion requires the Region to review the available
documentation (such as the Remedial Investigation/Feasibility
Study (RI/FS), Record of Decision (ROD), State equivalent to the
ROD or a consent decree) and any sits work activity and determine
if they collectively meet Section 121 cleanup standards, as
provided below.
First, the cleanup action vast be a remedial action and not
simply a removal. (Under current guidance, a RA represents one
or more operable units of the remedy leading to final cleanup.
See, OSWER Directive 9355.0-24.) Second, in reviewing the
State's documentation that the cleanup is consistent with Section
121, the Region may encounter past Stats decisions on remedies
that are documented differently from what we may expect as
documentation in the future. If the Region finds that these
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9831.8
remedies and responses are consistent with Section 121, we will
"grandfather" the documentation of these sites as set forth in
the paragraphs below.
Until the National Contingency Plan (NCP^ is proposed, the
Regions should review available documents for consistency with
Section 121 of CERCLA. The key factors are whether the work is
consistent with Section 121 cleanup standards and whether it will
lead to the final remedy. Where the RI/FS, the ROD or other
State decision document (such as a State administrative order or
consent decree) are not self-explanatory, it may be necessary for
the State to provide written clarification of the remedy.
for rBm.ftd.ial actions baaed upon decisions made after the NCP
revisions are proposed. Regions must require a ROD for review
using CERCLA Section 121 and the proposed NCP as the basis for
evaluating the cleanup standards prescribed in the State
documentation.
Decisions on remedies made pre-SARA with the contract award
for the RA occurring post-SARA will be eligible for the Section
116(e) RA start mandate. If the RZ/PS, ROD or other state
decision document was signed pre-SARA but the RA did not commence
until post-SARA, the RA need not strictly adhere to the
requirements of Section 121 to be included in the RA start
mandate. -However, the cleanup must comply with the NCP cleanup
standards in effect at the time, and all other criteria in this
guidance must be met. If the RA commenced pre-SARA, the site
will not be counted toward the RA mandate.
4. The Regional Administrator nruat document the finding
that the State ROD for equivalenti nee1^« (TRBCIA cleanup
standards.
The Regional Administrator must prepare and sign a formal
written document finding that the State's remedy selection (e.g.,
ROD) is consistent with Section 121 cleanup standards. The
Regional Administrator may sign the ROD itself or issue a
separata latter. Such a finding must explicitly reserve EPA's
right to conduct the Section 121(c) five year review and further
reserve IPA's right to take enforcement actions under Sections
106 and 107 against the PRPs to assure that the remedy as well as
any necessary additional future work are undertaken. This factor
is important because PRPs may attempt, improperly, to argue that
the Regional Administrator's signature bars EPA enforcement and
also binds the Region, for all time, to only the remedy
explicitly noted in the decision document and that no additional
work can be required.
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9831.8
In making the finding, the Regional Administrator may
delineate additional requirements necessary to ensure consistency
with Section 121. In order for EPA to count the RA, the state
must accept such conditions. It the State does not accept such
conditions, the Regional Administrator may choose not to make
this finding; in which case the site would not be counted toward
the RA mandate and no argument could be made that EPA would be
bound by the State decision on site remediation. In such a case,
the EPA position must be *et out in a written communication with
the State.
For a pre-SARA ROD where the RA commences after the
enactment of SARA, the Regional Administrator must find that the
RA meets the NCP cleanup standards in place at the time the ROD
was signed in order for the site to be counted under CERCLA
Section 116 (e) . A formal document is needed for this finding and
the above reservations of EPA rights must also be made.
5. The State and Potentially R«aoon«j.bl« Parties
have entered into an enforceable agreement for conduct
ot the remedial action or the State has issued an
unilateral order that fche PRPa. arm
with.
This criterion reflects EPA's belief that State settlements
at NFL sites should be concluded by entering into an enforceable
agreement, consent order or consent decree, or some other
comparable enforceable •document requiring the PRPs to conduct the
RA in accordance with CERCLA cleanup standards. An enforceable
unilateral administrative order that is being complied with may
also be used to satisfy this criterion.
6 . The State has certified with e flOfflmnti or a qualified
State or Federal official has ftoe\tqeni'fceid * that
aiibetanti.a.1 and continuous phyeieal on— site remedial
action has commenced at the site.
Ac noted in Section II, abc~e, this criterion utilizes the
same interpretation of the key elements of Section 116 (e) as
outlined in OSUXR's Directive 9355.0-24. The Region would
confirm that the RA commenced as defined in the OSWZR directive
referenced above. (As noted in the SARA legislative history,
"[i]solated, preliminary removal or remedial action to set the
groundwork for final cleanup which may not be commenced
immediately do not satisfy the requirements of this provision".
H.R. Rep. 253, 99th Cong. , 1st Sess. 12-13 [1985] [pt. 5].)
IV. CONCLUSION
The inclusion of State-lead RA starts is an important ispect
of our strategy to meet the CERCLA Section 116 (e) mandate. I
appreciate the efforts you have made and continue to make
n
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9831.8
striving to meet this mandate. If you hav« any question*
regarding thi» policy, please contact Johanna Hunter of the
Office of Waste Programs Enforcement at FTS (202) 475-9809 or
mail cod« OS-510.
cc: Directors, Wast* Management Division,
Regions I, IV, V, VII, vill
Director, Emergency and Remedial Response Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III, VI
Director, Toxic and Waste Management Division,
Region IX
Director, Hazardous Waste Division,
Region X
CERCIA Enforcement Branch Chiefs, Regions I - X
CERCIA Enforcement Section Chiefs, Regions I - X
Regional Counsels, Regions I - X
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Attachment
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Address:
IN THE MATTER OF: I No.
I
SUBPOENA DUCES TFCUM AND
SUBPOENA AD TESTTTICANDUM
TO:
, RESPONDENT(S):
YOU ARE HEREBY COMMANDED, pursuant to Title 42, United States Code,
section 9622(e)(3)(B) [Comprehensive Environmental Response,
Compensation, and Liability Act section 122(«)(3)(B)] TO APPEAR IN
PERSON at the following place and tine.
TIME AND DATE:
PLACE:
YOU ARE COMMANDED FURTHER TO TESTIFY THEN AND THERE under oath and
GIVE TRUTHFUL ANSWERS to all lawful inquiries and questions then
and there put to you on behalf of the United States Environmental
Protection Agency, and TO REMAIN IN ATTENDANCE until expressly
excused by the attorney(s) conducting the proceeding for the EPA.
YOU ARE COMMANDED I'UKTHEK TO BRING WITH YOU at the time and place
stated above, and then and there produce for inspection and/or
copying* ttooee items identified and described on the ATTACHED
PAGE(S).
NONCOMPLIANCE WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at [City, State] this day of , 198_.
Attorney Contact: .
[Asst. Regional Counsel] Regional Administrator, EPA Region
[Address and Telephone]
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four response to this Information Request should be mailed to:
U.S. Environmental Protection Agency
[Name of Program Person]
[Section Name]
[Address]
Due to the legal ramifications of your failure to respond
properly, EPA strongly encourages you to give this matter your
immediate attention and to respond to this Information Request
within the time specified above. If you have any legal or
technical questions relating to this Information Request, you
may consult with the EPA prior to the time specified above.
Please direct legal questions to ruame of QRC Person! of the
Office of Regional Counsel at (XXX) [XXX-XXXX]. Technical
questions should be directed to rMame of Program Person!, at the
above address, or at (XXX) [XXX-XXXX].
ThanJc you for your cooperation in this matter.
Sincerely,
[Name]
Waste Management Division
Attachment
cc. rcase a-fctnmftY naTMft1 f Office of Regional Counsel
fcasc prP<7rm person namai, Waste Management Diviri~
[Name], Director, Office of Waste Programs Enforceme;.,:
[Name], Director, Office of Emergency and Remedial Response
TState proora" «n^a.ff parson pamo. aa appropriate 1
fSt.at.» Assistant Attorney General, aa appropriate!
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[NAME OF SITE] ATTACHMENT A
[Insert number, e.g., FIRST] INFORMATION REQUEST
Instructions
1. Please provide a separate narrative response to each and
every Question and subpa.t of a Question set forta in tnis
Information Request.
2. Precede each answer with the number of the Question to
which it corresponds.
3. If information or documents not known or not available to
you as of the date of submission of a response to this
Information Request should later become known or available to
you, you must supplement your response to EPA. Moreover, should
you find, at any time after the submission of your response that
any portion of the submitted information is false or
misrepresents the truth, you must notify EPA of this fact as
soon as possible and provide EPA with a corrected response.
4. For each document produced in response to this information
Request indicate on the document, or in some other reasonable
manner, the number of the Question to which it responds.
5. The information requested herein must be provided even
though the Respondent may contend that it includes possibly
confidential information or trade secrets. You may, if you
desire, assert a confidentiality claim covering part or all of
the information requested, pursuant to Sections l04(e)(7)(E) and
(F) of CERCLA, as amended by SARA, 42 D.S.C. SS 9604(e)(7)(E)
and (F), Section 3007(b) of RCRA, 42 U.S.C. 6927(b), and 40
C.F.R. 2.203(b), by attaching to such information at the time it
is submitted, a cover sheet, stamped or typed legend, or other
suitable form of notice employing language such as "trade
secret," or "proprietary" or "company confidential."
Information covered by such a claim will be disclosed by EPA
only to tlM extent, and only by means of the procedures set
forth in statutes and regulation set forth above, if no such
claim accompanies the • information when it is received by EPA, it
may be mad* available co the public by EPA without further
notice to you. You should read the above cited regulations
carefully before asserting a business confidentiality claim,
since certain categories of information are not properly the
subject of such a claim.
Definitions
The following definitions shall apply to the following words as
they appear in this Attachment A:
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11. The term "identify" means, with respect to a natural
person, to set forth the person's name, present or last known
business address and business telephone number, present or last
known home address and home telephone number, and present or
last known job title, position.or business.
12. The term "identify" means, with respect to a corporation
partnership, business trust or other association or business
entity (including a sole proprietorship) to set forth its full
name, address, legal form (e.g. corporation, partnership, etc.)
organization, if any, and a brief description of its business.
13. The term "identify" means, with respect to a document, to
provide its customary business description, its date, its number
if any (invoice or purchase order number), the identity of the
author, addresser, addressee and/or recipient, and the substance
or the subject matter.
14. The term "release" has the same definition as that
contained in Section 101(22) of CERCLA, 42 U.S.C. $ 9601(22),
and includes any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping,
or disposing into the environment, including the abandonment or
discharging of barrels, containers, and other closed receptacles
containing any hazardous substance or pollutant or contaminant.
15. The terms "document11 and "documents11 shall mean any
object that records, stores, or presents information, and
includes writings of any kind, formal or informal, whether or
not wholly or partially in handwriting, including by way of
illustration and not by way of limitation, any invoice,
manifest, bill of lading, receipt, endorsement, check, bank
draft, cancelled check, deposit slip, withdrawal slip, ler,
correspondence, record book, minutes, memorandum of telephone
and other conversations including meetings, agreements and the
like, diary, calendar, desk pad, scrapbook, notebook, bulletin,
circular, fora, pamphlet, statement, journal, postcard, letter,
telegram, telex, report, notice, message, analysis, comparison,
graph, chart, interoffice or intraoffice communications,
photostat or other copy of any documents, microfilm or other
film record, any photograph, sound recording on any type of
device, any punch card, disc or disc pack; any tape or other
type of memory generally associated with computers and data
processing (together with the programming instructions and other
written material necessary to use such punch card, disc, or disc
pack, tape or other type of memory and together with printouts
of such punch card, disc, or disc pack, tape or other type of
memory); and (a) every copy of each document which is not an
exact duplicate of a document which is produced, (b) every copy
which has any writing, figure or notation, annotation or the
like on it, (c) drafts, (d) attachments to or enclosures with
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1. The term "you" or "Respondent* shall mean the addressee of
this Request, the addressee's officers, managers, employees,
contractors, trustees, partners, successors, assigns, anrl
agents.
2. The term "person" shall have the same definition as in
Section 101(21) of CERCLA: an individual, firm, corporation,
association, partnership, consortium, joint venture, commercial
entity, United States Government, Stcte, municipality,
commission, political subdivision of i State, or any interstate
body.
3. The terms "the Site" or "the facility" shall mean and
include the property on or about the [Name of
owner(s)/operator(s)] property that is bounded by [roads,
streams, etc.] in [city or town and state], and is.also known as
[common name, if any, e.g., the PSC Resources Site].
4. The tern "hazardous substance" shall have the same
definition as that contained in Section 101(14) of CERCLA and
includes any mixtures of such hazardous substances with any
other substances, including petroleum products.
5. The term "pollutant or contaminant," shall have the same
definition as that contained in Section 101(33) of CERCLA, and
includes any mixtures of such pollutants and contaminants with
any other'substances. Petroleum products mixed with pollutants
and contaminants are also included in this definition.
6. The term "hazardous waste" shall have the same definition
as that contained in Section 1004(5) of RCRA.
7. The term "solid waste" shall have the same definition as
that contained in Section 1004(27) of RCRA.
8. The term "materials" shall mean all substances that have
been generated, treated, stored, or disposed of or otherwise
handled at or transported to the Site, including but not limited
to all hazardous substances, pollutants and contaminants,
hazardous wastes and solid wastes, as defined above and, r(list
specific flfra^ieala of concern at Sttai.l
9. The term "hazardous material* sha1! mean all hazardous
substances, pollutants or contaminants, and hazardous wastes, as
defined above.
10. The term "non-hazardous material" shall mean all material
as defined above, excluding hazardous substances, pollutants arl
contaminants, and hazardous waste.
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any document and (e) every document referred to in any other
document.
16. The terms "and" and "or" shall be construed either
disjunctively or conjunctively as necessary to bring within the
scope of this Information Request any information which might
otherwise be construed to be outside its scope.
17. The term "arrangement" means every separate contract or
other agreement between two or more persons.
18. The terms "transaction" or "transact" mean any sale,
transfer, giving, delivery, change in ownership, or change in
possession.
19. words in the masculine shall be construed in the
feminine, and vice versa, and words in the singular shall be
construed in the plural, and vice versa, where appropriate in
the context of a particular question or questions.
20. All terms not defined herein shall have their ordinary
meaning, unless such terms are defined in CZRCLA, RCRA, 40 CFR
Part 300 or 40 CFR Parts 260 - 280, in which case t-.h-J s*atutory
or regulatory definitions shall apply.
[FINANCIAL BACKGROUND DEFINITIONS]
21. The term "property interest" means any interest in
property including but not limited to, any ownership interest,
including an easement, any interest in the rental of property,
any interest in a corporation that owns or rents or owned or
rented property, and any interest as either the trustee or
beneficiary of a trust that owns or rents, or owned or rented
property.
22. The term "asset" shall include the following: real
estate, buildings or other improvements to real estate,
equipment, vehicles, furniture, inventory, supplies, customer
lists, accounts receivable, interest in insurance policies,
interests? in partnerships, corporations and unincorporated
companies',, securities, patents, stocks, bonds, and other
tangible as veil as intangible property.
QUESTIONS
[QUESTIONS FOR ALL PRPS]
*. Identify the person(s) answering these Questions on behalf
of Respondent.
t. For each and every Question contained herein, identify all
persons consulted in the preparation of the answer.
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t. For each and every Question contained herein, identify all
documents consulted, examined, or referred to in the preparation
of the answer or that contain information responsive to the
Question and provide true and accurate copies of all such
documents .
*. Li.st th». EPA RCRA identification Numbers of the
Respondent, i/ any, and identify the corresponding units,
facilities or vessels assigned these numbers.
t. Describe the acts or omissions of any persons, other than
your employees, agents or those persons with whom you had a
contractual relationship, that may have caused the release or
threat of release of hazardous substances at the Site.
In addition:
a. Describe all precautions that you took against
foreseeable acts or omissions of any such third parties
[including, but not limited to insert namaa tf known. e.g. . of
prior owners, ate. 1 and the consequences that could foreseeably
result from such acts or omissions.
b. Describe the care you exercised with respect to the
hazardous substances found at the Site.
#. Identify all persons, including Respondent's employees,
who have loiowiedge, information or documents about the
generation, use, purchase, treatment, storage, disposal or other
handling of materials at or transportation of materials to the
Site.
*. Describe all arrangements that Respondent may have or may
have had with each of the following persons: rnamaa of persons
to ba iiwolvad vitih the Site, e.g. . PRPal .
#. Tor each and every current owner, operator, lessor or
of any portion of the Site:
a. Identify such person and the nature of their operation
at the Sit*.
b. Describe the portion of the Site owned, operated, leased
by each such person and state che dates during which each
portion was owned, o^rated or leased.
c. Provide copies of all documents evidencing or relating
to such ownership, operation or lease, including but not limited
to purchase and sale agreements, deeds, leases, etc.
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8
*. Describe the physical characteristics of the site
including but not limited to the following:
a. Surface structures (s.g., buildings, tanks, etc.).
b. Ground water wells, including drilling logs.
c. Past and present storm water drainage system, sanitary
sewer system, includi ig septic tanJc(s) and subsurface disposal
field(s).
d. Any and all additions, demolitions or changes of any
kind to physical structures on, under or about the Site, or to
the property itself (e.g., excavation work) and state the dates
on which such changes occurred.
t. For each and every prior owner, operator, lessor or lessee
of any portion of the Site known to you:
a. Identify such person and the nature of their operation
at the Site.
b. Describe the portion of the Site owned, operated, leased
by each such person and state the dates during which each
portion was owned, operated or leased.
c. Provide copies of all documents evidencing or relating
to such ownership, operation or lease, including but not limited
to purchase and sale agreements, deeds, leases, etc.
d. Provide all evidence that hazardous materials were
released or threatened to be released at the Site during the
period that they owned the Site.
#. Provide all existing technical or analytical information
about the Site,. including but not limited to data and documents
related to soil, water (ground and surface), geology,
geohydrology, or air quality on and about the Site, rand list.
sp^eifif* Anfrnman-ts, vou want! .
*. Do you know or have reason to know of any on-going or
planned investigations of the soil, water (ground or surface),
geology, hydrogeology or air quality on or about the site? if
so:
a. Describe the nature and scope of these investigations;
b. Identify the persons who are undertaking or will
undertake these v/. stigations;
c. Describe the purpose of the investigations;
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d. State the dates of such investigations;
«>. Describe as precisely as possible the locations at the
Site where such investigations are taking or will taJce place.
#. Identify all persons, including you, who may have given,
sold, transferred, or delivered any material or item, including
materials or items of c jncern. e.g. . TCE or lafr gflcKS ] to
pRPal. in addition:
a. State the dates on which each such person may have
given, sold, transferred, or delivered such material;
b. Describe the materials or items that may have been
given, sold, transferred, or delivered, including type of
material, quantity, chemical content, physical state, quantity
by volume and weight, and other characteristics.
c. Describe the intended purpose of each sale, transfer, or
delivery of materials.
d. Describe the source of or process that produced the
materials that may have been sold, transferred, or delivered.
e. Describe, all efforts taken by such persons to determine
what would actually be done .with the materials that may have
been sold, transferred or delivered after such materials had
been sold, transferred or delivered.
[OWNER/OPERATOR QUESTIONS]
*. Did you acquire any portion of the Site(s) after the
disposal or placement of the hazardous substances on, in, or at
the Site? Describe all of the facts on which you base the answer
to this question.
t. At the time you acquired the parcels of the site(c), did
you know or have reason to know that any hazardous substance was
disposed of on, in, or at the facility? Describe all
investigations of the Sits you undertook prior to acquiring the
Site and all of the facts on which you base the answer to this
question.
*. Did you acquire the facility by inheritance or bequest?
Describe all facts on which you base the a:iswer to this
question.
#. Describe all leaks, spills or releases or threats of
releases of any kind into the environment of any hazardous
materials that have occurred or may occur at or from the Site,
including but not limited to:
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10
a. Wfisaa such releases occurred or may occur.
b. How the releases occurred or may occur.
c. What hazardous materials were released or may be
released.
d. What amount of each such hazardous material was so
released.
e. Where such releases occurred or may occur.
f. Any and all activities undertaken in response to each
such release or threatened release.
g. Any and all investigations of the circumstances, nature,
extent or location of each such release or threatened release
including, the results of any soil, water (ground and surface),
or air testing that was undertaken.
h. All persons with information relating to subparts a.
through g. of this Question.
*. If any release or threatened release identified in
response to Question [*.], above, occurred into any subsurface
disposal.system or floor drain inside or under any buildings
located on the Site, further identify:
a. Where precisely the disposal system or floor drains are
and were located.
b. When the disposal system or floor drains were installed.
c. Whether the disposal system or floor drains were
connected to pipes, and if so, the purpose of such pipes.
d. Where such pipes are or were located.
•. NtMn such pipes vere installed.
f. HOW and when such pipes were replaced, repaired, or
otherwise changed.
* Identify all parsons, including you, who may have
manufactured, given, sold, transferred, delivered, or otherwise
handled, [describe what was found at the site, e.g., barrels
marXed "Dupont" or TCE, etc.]. In addition:
a. Describe in complete detail all arrangements pursuant to
which such persons may have so handled such items or materials.
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11
b. State the dates on whicn such persons may nave handled
each sucti item or material;
c. State the amounts of such items or materials that may
have been so handled on each such date;
d. Identify the persons to whom such items or materials may
have been given, sold, transferred, or delivered;
e. Describe the nature, including the chemical content,
characteristics, physical state (e.g., solid, liquid) and
quantity (volume and weight) of all [describe what was found at
the Site, e.g., "lab packs*] and describe all tests, analyses,
and results of such tests and analyses concerning such items or
materials.
f. State whether any of the materials identified in subpart
e. exhibit any of the characteristics of a hazardous waste
identified in 40 CFR $261 Subpart C.
g. State whether any of the materials identified in subpart
e. are listed in 40. CFR S281 Subpart O.
h. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCSA hazardous
wastes.]
i. Describe the nature of the operations that were the
source of the [list what was found at the Site, e.g., lab
packs].
j. Provide copies of all documents (including but not
limited to invoices, receipts, manifests, shipping papers,
customer lists and contracts) which may reflect, show or
evidence the giving, sale, transfer or delivery, or other
arrangements under which the giving, sale, transfer, or delivery
of any materials to the Site took place.
Jc. Describe the type, condition, number, and all markings
on the containers in which the materials were contained when
they were> handled.
[QUESTIONS FOR POTENTIAL TRANSPORl'&iLaj
t. Identify all persons, including you, who may have
transported materials to the Site. Such persons will
hereinafter be referred to as "Transporters."
*. For each '^-.h Transporter, state whether it accepted
materials including municipal solid waste from a municipality or
arranged with a municipality by contract or otherwise to accept
materials from any source. If so, describe the nature, quantity
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12
and source of all materials accepted and transported to the
Site.
f. for each such Transporter, further identify:
a. In general terms, the nature and quantity of all
non-hazardous materials transported to the Site.
b. The nature of the hazardous materials transported to the
Site including the chemical content, characteristics, and
physical state (e.g., solid, liquid).
c. Whether any of the hazardous materials identified in
subpart b exhibit any of the characteristics of a hazardous
waste identified in 40 CFR S261 subpart C.
d. Whether any of the hazardous materials identified in
subpart b are listed in 40 CFR 5261 Subpart D.
e. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCRA hazardous
wastes.]
f. The persons from whom the Transporter accepted hazardous
materials including, but not limited to, [insert potential
generators]
g. Every date on which the Transporter transported the
hazardous materials to the site.
h. The owners of the hazardous materials that were accepted
for transportation by the Transporter.
i. The quantity (weight and volume) of hazardous materials
brought by the Transporter to the Site.
j. All tests, analyses, analytical results and manifests
concerning each hazardous material accepted for transportation
to the Sit*.
k. Hie precise locations at the Site to which each
hazardous' material was. transported.
1. Who selected the location to which the Transporter would
take each hazardous material.
m. Who selected the Site as the location to which the
Transporter would take each hazardous material.
n. The amount paid to each Transporter for accepting the
hazardous materials for transportation, the method of payment,
and the identity of the persons who paid each Transporter.
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13
o. wnere the persons identified in g., above, intended to
have such hazardous materials transported and all documents of
other information (oral or writtan) evidencing their intent.
p. All locations through which such hazardous materials
were trans-shipped, or were stored or held, prior to their final
treatment or disposal.
q. What activities transpired with regard to the hazardous
materials after they were transported to the Site (e.g.
treatment, storage or disposal).
r. The final disposition of each of the hazardous materials
brought to the Site.
s. The measures taken by the persons who gave the hazardous
materials to the Transporters to determine what the Transporters
would actually do with the hazardous materials they accepted.
t. The type, number and condition of containers in which
the hazardous materials were contained when they were accepted
by the Transporters and when they were left at the Site and any
other labels, numbers or other markings on the containers.
[QUESTIONS FOR POTENTIAL GENERATORS]
*. Identify all persons, including you, who may have:
a. disposed of or treated materials at the Site;
b. arranged for the disposal or treatment of materials at
the Site; or
c. arranged for the transportation of materials to the site
(either directly or through transhipment points) for disposal or
treatment. Such persons will hereinafter be referred to as
"generators.•
#. Forrc«cli and every instance in which a generator performed
any of tHa actions specified in parts a. - c. of the previous
questions
a. Identify the generator;
b. Identify the persons with whom the generator made such
arrangements including, but not limited to [insert list of
suspected transporters].
c. Identify all persons who may have directly or indirectly
transported or otherwise brought any materials, [including
municipal solid waste,] to the Site.
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14
d. State every date on which each Generator made such
arrangements.
e. Describe the nature, including the chemical content,
characteristics, physical state (e.g., solid, liquid) and
quantity (volume and weight) of all hazardous tutorials involved
in each such arrangement.
f. State whether any of the hazardous mattrials identified
in subpart e. above exhibit any of the characteristics of a
hazardous waste identified in 40 CFR $261 Subpart C.
g. State whether any of the hazardous materials identified
in subpart e. are listed in 40 CFR $261 Subpart 0.
h. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCRA hazardous
wastes.]
i. In general terms, describe the nature and quantity of .
the non-hazardous materials involved in each such arrangement.
j. [Describe the nature and quantity of any mu.iicipa'1 solid
waste involved in any such arrangement.}
k. Identify the owner of the -hazardous materials involved
in each such arrangement.
1. Describe all tests, analyses, analytical results or
manifests concerning each hazardous material involved in such
transactions.
at. Describe as precisely as possible any and all of the
locations at which each hazardous material involved in such
transactions actually was disposed or treated.
n. Identify the persons who selected the location to which
the hazardous materials were to be disposed or treated.
o. Identify who selected the site as the location at which
hazardous materials were to be disposed or tre?rc4
p. State the amount paid in connection with each such
arrangement, the method of payment, and the identity of the
persons involved in each arrangement.
q. Describe where the persons identified in subparts i. and
m. of tnis Question intended to have the hazardous materials
involved in each arrangement treated or disposed and all
documents or otner information (written or oral) evidencing
their intent.
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IS
r. Describe all intermediate sites to which the hazardous
materials involved in each arrangement were f.rans-shipped, or at
which they were stored or held, any time prior to final
treatment or disposal.
s. Describe what was done to the hazardous materials once
they were brought to the Site.
t. Describe the final disposition of each cf the hazardous
material involved in each arrangement.
u. Describe the measures taken by the generator to
determine how and where treatment or disposal of the hazardous
materials involved in each arrangement would actually take
place.
v. Describe type, condition and number of containers in
which the hazardous materials were contained when they were
disposed, treated, or transported for disposal or treatment and
describe any labels, numbers or other markings on the
containers.
[FINANCIAL BACKGROUND QUESTIONS FOR ALL PRPS WHERE FINANCIAL
VIABILITY IS OR WILL BE AT ISSUE AND THE AGENCY IS UNABLE TO
ASSESS FINANCIAL VIABILITY EFFECTIVELY THROUGH REVIEW OF
PUBLICLY AVAILABLE DATA]
#. Provide a list of all property and casualty insurance
policies (e.g. Comprehensive General Liability, Environmental
Impairment Liability and Automobile Liability policies) [and
Directors and Officers policies] for the period from [d?-9
disposal site first became disposal site] through the p ent.
Specify the insurer, policy, effective dates, and state r=sr
occurrence policy limits for each policy. Copies of policies
may be provided in lieu of a narrative response.
#. Provide copies of all financial documents, including
income tax return* sent by you to the federal Internal Revenue
Service and [the state IRS] in the last five years.
*. Provide copies of financial statements, reports, or
projections prepared by, for or on behalf of the Respondent for
the past five years, whether audited or unaudited, including,
but not limited to, all those filed with .the Securities and
Exchange commission, State agencies, and all financial
institutions such as banks.
[FINANCIAL BACKGROUND QUESTIONS FOR ALL CORPORATE PRPS]
*. Identify the parent corporation and all subsidiaries of
Respondent.
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16
t. Identify all persons who may be responsible for the
liabilities of Respondent arising froa or relating to the
release or threatened release of hazardous substances at the
Site, including but not limited to successors and individuals.
ft. Provide a copy of the most current Articles of
Incorporation and By-laws of Respondent.
#. Identify the officers, managers and majority shareholders
of Respondent and the nature of their management duties and
amount of shares held, respectively.
t. [For additional PRP questions, see ORC case attorney.]
[FINANCIAL BACKGROUND QUESTIONS FOR PARTNERSHIP PRPS]
ft. Identify all partners comprising [Name of Partnership] and
the nature of their partnership interests.
ft. [For additional Partnership PRP questions, see ORC case
attorney.]
[FINANCIAL BACKGROUND QUESTIONS FOR TRUST PRPS]
ft. Identify all trustees and all beneficiaries of the [Name
of Trust1.
ft. [For additional Trust PRP questions see ORC case
attorney.1
[CONCLUDING QUESTIONS FOR ALL RPS]
ft. If you have reason to believe that there may be persons
able to provide a more detailed or complete response to any
Question contained herein or who may be able to provide
additional responsive documents, identify such persons and the
additional information or documents that they may have.
t. For each and every Question contained herein, if
information or documents responsive to this information Request
are not in your possession, custody or control, then identify
the person* froa whom such information or documents may be
obtained.
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UNITED STATf S ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 3 !SS5
OFFICE OF
SOLID WASTE AND EMERGENCY MS'ONSE
OSWER DIRECTIVE
NO. 9836. 0-1A
SUBJECT: Chapter 6 of±he Community Relation* Handbook
/• /2cC
FROM: J. WlnSldn porter
Assistant Administrator
TO: Regional Administrators
Regions I-X
When the revised version of CPTOiVr1-'tv Relations in
Superf und t A Handbook want to print this summer, Chapter 6 was
not yet in final form. This Chapter, "Community Relations during
Enforcement Activities and Development of the Administrative
Record", is attached in interim final form. Please insert it
into the Handbook in lieu of the prior version (August, 1985) .
The Chapter deserves vide distribution to the technical and
enforcement branches, Office of Regional Counsel, and Office of
Public/External. Affairs, as well as to States. Chapter 6
stresses the importance of the team approach to managing
community relations at enforcement-lead sites, and discusses the
concepts of confidentiality in negotiations, public participation
requirements under SARA, and community relations coordinator
responsibilities regarding the administrative record.
Attachment
cc: Bruce Diamond, OWPE
Henry Longest, OERR
Elaine Stanley, OWPE
Lloyd Guerci, OWPE
Russel Wyer, OERR
Lisa Friedman, OGC
Glenn Unterberger, OECM
Nancy Firestone, DOJ
Regional Counsels, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Community -Relations Coordinators
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OSWER DIRECTIVE 9836.0-1A
CHAPTER 6
COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES
AND DEVELOPMENT OF THE ADMINISTRATIVE RECORD
6.1 BACKGROUND AND INTRODUCTION
6.2 APPLICABILITY
6.3 OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
6.4 COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND
ADMINISTRATIVE RECORDS
6.4.A Planning Community Interviews and
Developing Community Relations Plans
1. Community Interviews
2. Community Relations Plans (CRPs)
3. Potentially Responsible Party (PRP) Involvement
6.4.B Enforcement Activities and Community Relations at
Remedial Sites
1. Introduction
2. Notice to PRP*
3. Negotiations
4. Community Relations Following an RI/FS Order
5. Public Notice and Comment on Consent Decrees for
RD/RA
6. Community Relations During PRP Remediation
7. Technical Discussions
6.4.C Community Relations During Removal. Actions
6.4.D Community Relations During Specific Enforcement
Actions and Settlements
1. Consent Decrees, fit **"i»i« and Cost Recovery
2. Injunctive Litigation
3• Cost Recovery
4. Interaction with RCRA and other applicable Federal
and state laws
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OSWER DIRECTIVE 9836.0-1A
6.4.E The Administrative Record as Part of Community
Relations
1. Overview
2. Purpose of the Administrative Record
3. Community Relations Coordinator
Responsibilities for the Administrative Record
4. Additional Community Relations Coordinator
Responsibilities
5, Relationship Between the Administrative Record
and Information Repositories
6.5 Appendix: Environmental Fact Sheet, "The Enforcement
Process: How It Works"
ii
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OSWER DIRECTIVE 9836.0-1A
COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES AND
DEVELOPMENT OP THE ADMINISTRATIVE RECORD*
6.1 BACKGROUND AND INTRODUCTION
The Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) as amended, provide* the U.S.
Environmental Protection Agency (EPA) with t le authorit-.y to
respond directly or to compel potentially responsible parties
(PRPs) to respond to releases or threatened releases of hazardous
substances, pollutants or contaminants. CERCLA created two
complementary programs aimed at achieving this goal.
Under the first program a trust fund, Known as the
Superfund, may be available for site remediation when no viable
PRPs are found or when PRPs fail to taJce necessary response
actions. PRPs are defined as parties identified as having owned
or operated hazardous substance sites, or who transported or
arranged for disposal or treatment of hazardous substances,
pollutants or contaminants at such sites. The second program
provides EPA with the authority to negotiate settlements, to
issue orders to PRPs directing them to take necessary response
actions, or to sue PRPs to repay the costs of such actions when
the trust fund has been used for these purposes. The actions EPA
takes to reach settlement or to compel responsible parties to pay
for or undertake the remediation of sites are referred to as the
Superfund enforcement process.
This chapter includes an.overview of the CERCLA enforcement
program, and.a discussion of enforcement activities, community
relations, and the administrative record. It provides specific
discussions on community interview planning and development of
community relations plans (CRPs) for enforcement-lead sites;
enforcement activities requiring public participation; community
relations during specific enforcement actions and settlements;
and the relationship between the administrative record for
response selection and community relations. The chapter is
intended to discuss only how enforcement activities should be
considered during overall community relations program planning
and implementation, in developing this chapter, the Agency
refrained from repeating information contained elsewhere in the
Handbook.*
*This memorandum replaces current OSWER Directives 9836.0 and
9836.0-la, and is the new Chapter 6 of the gomaunity gelations in
Suparfundi A Handbook (hereinafter referred to as the Handbook).
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OSWER DIRECTIVE 9836.0-1A
6.2 APPLICABILITY
This policy applies to all Fund-financed, Federal
enforcement, CERCLA-funded Stats enforcement, and PRP-l«ad
removal and remedial actions, as defined in th« National
Contingency Plan (NCP). The information contained in this
chapter is consistent with and serves to implement the NCP. It
creates no rights and/or obligations of any party.
6.3 OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
A primary goal of CERCLA is to compel PRPs to remediate
sites that are releasing or threatening to release hazardous
substances into the environment. The enforcement process may
involve the following major efforts.
First, EPA attempts to identify PRPs as early as possible.
Where practicable, EPA generally notifies these parties of their
potential liability for response work when the site is scheduled
for some action; EPA will then encourage PRPs to do the work.
If the PRPs are responsive and EPA believes the PRPs are
willing and capable of doing the work, EPA will attempt to
negotiate an enforcement agreement with the PRP(s). The
enforcement agreement may be an agreement entered in court (e.g.,
a judicial consent decree) or it may be an agreement signed by
EPA and the PRPs outside of court (an administrative order on
consent). Both of these agreements are enforceable in a court of
law, and are subject to EPA oversight of the work performed by
PRPs.
If a settlement is not reached, EPA can use its authority to,
issue a unilateral administrative order, which directs PRPs to
perform removal or remedial actions at a site. If the PRPs do
not respond to an administrative order, EPA has the option of
filing a lav suit to compel performance.
Finally, if PRPs do not perform the response action and EPA
undertake*- the work, EPA may file suit against PRPs to recover
money spent by EPA from the Super fund. This is known as cost
recovery, and is a major priority under the CERCLA program.
The Appendix to this chapter, a fact sheet on the
enforcement process, explains in simple terms the tools and
authorities provided by CERCLA* and the methods EPA may use to
negotiate settlements with PRPs.
EPA must strive to help communities understand Superfund
program goals and activities, including enforcement actions. In
this effort, the lead agency needs to consider the concerns of
the local community. By identifying community concerns, the
Agency can attempt to develop alternatives to response actions or
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OSWER DIRECTIVE 9836.0-1A
a variation to a remedial action plan that may better meet th«
ne«ds of the local residents.
6.4 COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND
ADMINISTRATIVE RECORDS
In fostering community relations during enforcement actions,
Community Relations Coordinators (CRCs) rhculd follow the same
essential steps as for Fund-financed actions. The planning steps
that are critical to community relations are conducting community
interviews and developing community relations plans (CRPs). Once
the CRP has been developed, the CRC and other members of the site
team should insure that implementation follows this CRP. The
administrative record file can be used to insure that the public
knows what is happening at the site, as well as how to get
involved in determining what happens at the site. This chapter
emphasizes the enforcement aspects of these activities and
recognizes the possibility of PRP interest in participating in
these and other activities.
6.4.A Planning Community Interview* and Payaloping Community
Relations Plans fCRPs)
6.4.A—1 Community Interview*
In addition to general preparation for community interviews
(see Chapter 3 of the Handbook), 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 community interviews (e.g., sensitivity to
pending litigation or the political climate of the community).
By discussing the site with regional technical and legal staff in
advance of the community interviews, community relations staff
can be apprised of any situations that might impact on these
interviews. With or without viable PRPs, the Remedial Project
Manager (RPM) should participate in the community discussions.
The regional cevunity relations staff, with the RPM or
enforcement staff, conducts discussions with different groups
before developing the CRP. It is important to note that some
interviews Bay already have been conducted in the community as
part of the listing process for the National Priorities List
(NPL). These discussions, however, do not replace community
discussions held during development of a CRP. The information
sought during the CRP development covers spec1Tic areas that are
not necessarily discussed - or asked - during the listing
process. Also, CRCs are not, nor should they be, investigators
of PRP actions at the site. During community discussions, if
information is volunteered, the CRC should advise the resident
that enforcement officers will follow up on this information.
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OSWER DIRECTIVE 9836.0-1A
To incorporate the full rang* of views, lead agency staff
may consider interviewing PRPs in the community. Every site
varies and so also do PRPs, their contribution to the site, and
their standing in the community. In some cases, only the current
owner or operator is contacted. The enforcement team for the
site will determine who to interview. This team is comprised of
a CRC, the on-scene coordinator/ regional counsel, the RPM, the
Enforcement Project Manager (EPM), as well as equivalents at the
State level when the State has the lead.
6.4.A—2 CpmjHU.pi.tv Relations Plans
Using information obtained during the community interviews,
the lead agency develops a community relations plan (CRP) that
reflects consideration of the concerns and communication methods
preferred by the community. The CRP format is fully described in
Chapter 3 and Appendix B of the Handbook. In addition, the CRP
includes two appendices; the first presents EPA's contact list of
key community leaders and interested parties. Note that the list
of community contacts will not be in the Appendix if it contains
private citizens* addresses and phone numbers. On the other
hand, public agencies, elected officials, and local groups-'
addresses can be included in the administrative record and
information repositories. The second appendix outlines suggested
locations of meetings, the administrative record and information
repositories. These are all public information.
The CRP is a critical planning tool for lead agency staff
and for the public, as it will likely reach and impact many
-people. CRPs prepared for sites with viable PRPs should receive
input from all members of the enforcement team who are directly
affected by the scheduled activities in the CRP. for example,
attorneys should approve the accuracy of any legal information;
the RPM or EPM should approve the accuracy of any technical
information; and the CRC should approve the accuracy of the
community relations techniques used in the CRP. The CRC is
ultimately responsible for insuring that the community relations
requirements of CERCLA/SARA are implemented. Therefore final
approval of the CRP should be by the CRC, with concurrence on
specific sections by members of the team.
Coordination activities among the CRC, on-scene coordinator,
regional counsel, the RPM, and the EPM, depend on the
site-specific situation. The Key initially is to plan activities
and establish procedures for reviewing information. Adequate
planning should prevent the release of information that might be
detrimental to the settlek-rit and/or litigation process.
Internal discussions with all team members during project
planning may be a useful mechanism for guarding against such
releases. Thia need for coordination is perhaps the moat cr
message nut forth in this guidance. Although EPA-must share
information about a site'with the people directly affected by the
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OSWER DIRECTIVE 9836.0-1A
sits, this information exchange should be technical and not
legalistic, and should be coordinated so as not to jeopardize
negotiations with PRPs.
Community relations activities outlined in a CRP for an
enforcement site should be consistent with the settlement process
and the likely schedule of enforcement actions. Techniques
peculia-. to enforcement sites (such as the technical discussions
outlined in Section 6.4.B-7) may be identified in the CRP as
community relations activities. [Within the various sections and
appendices of a CRP, the CRC staff may wish to document EPA's
approach to coordinating and sharing information with PRPs.
However, any special conditions on Agency interaction with the
PRPs should be spelled out in the administrative order or consent
decree, not in the CRP. The public must be told early if PRPs
are willing to participate in implementing the CRP. The CRC
staff can do this by preparing a fact sheet or stating this at a
public meeting.] Discussions about the PRPs prior to signing a
consent agreement, however, can cause delays in the negotiations.
It is preferrable to delay discussing details of PRP involvement
with the site until some agreement is signed or action taken. If
the PRPs are to be a part of the community relations- program,
early comments can cause tension and mistrust between Agency
staff and the PRP.
Assuming a site has not been referred for litigation, the
CRP only needs to inform the public of the possibility of
litigation. CRC staff may choose to describe the litigation
process, and discuss the potential effects of litigation on the
scope of community relations activities. If the site is referred
later for litigation, the CRP is to be modified to provide that
statements about the litigation, other than public information
that can be ascertained from court files, must be cleared with
the Department of Justice before issuance. The regional counsel
team member will be the focal point for that clearance, as well
as for consulting with DOJ on statements concerning site status,
such as investigations, risk assessments and response work. The
plan will be amended to reflect any potential effects this could
have on community relations activities. When referral for
litigation is the initial enforcement action, the original
community relations plan should specify the activities that are
to be conducted during litigation, to the extent they can be
determined at that time. Section 6.4.D-2 of this policy
discusses the litigation process.
6.4.A—3 Potentially Responsible Party fPRPl Involvement
EPA is the lead agency for developing and implementing
community relations activities at an .EPA "PRP-lead" site. A PRP
may assist in the implementation of community relations
activities at the discretion of the Regional office. The
Regional office, however, will oversee PRP community relations
implementation. Specifically, PRPs may be involved in community
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OSWER DIRECTIVE 9836.0-1A
relations activities at sites where they are conducting either
the remedial investigation/feasibility study (RI/FS), or the
remedial design/remedial action (RD/RA), or both. If a PRP will
be involved in community relations activities, the CRP should
reflect that involvement. In these cases, the PRPs may wish to
participate in public meetings, or in the preparation of fact
sheets. EPA, however, will not "negotiate" the contents of press
releases with PRPs.
When complete and final, the CRP should be provided to all
interested parties, and placed in the administrative record file
and information repository for the particular site. If the CRP
is revised, the final revised copy should be made available to
the public, and placed in the administrative record file and the
information repository, as well.
6.4.B Enforcement Activities and Community Relations at
Remedial sitaa
The following subsections present an overview of the notice
process leading to the initiation of RI/FS or RD/RA negotiations,
community relations following an RI/FS order, public comment on
RD/RA consent decrees, community relations during PRP
remediation, and technical discussions.
6.4.B-1 Introduction
Community relations activities should be planned as early in
the process as possible. Generally, this occurs before the RI/FS
special notice, which is discussed below. Meetings with small
groups of citizens, local officials and other interested parties
are extremely helpful for sharing general information and
resolving questions. These meetings also may serve to provide
information on EPA's general enforcement process, perhaps through
distribution of the fact sheet attached to this guidance. A
discussion of how EPA encourages settlements may be appropriate
at this time.
Litigation generally does not occur until after the remedy
is selected (after the moratorium period that begins when the
special notice for RD/RA ends, as discussed below). EPA staff,
however. may need to explain early in the process that legal
constraints may apply during negotiations or litigation with
respect to community relations activities.
6.4.B-2 Notice to PRPs
Notice letters are used to inform PRPs of their potential
liability and provide an opportunity for them to enter into
negotiations, which are intended to result in PRPs conducting or
financing response activities. The negotiation process may
include "informal" and "formal" negotiations.
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OSWER DIRECTIVE 9836. 0-1A
EPA has established a discretionary three-step notification
process to facilitate and encourage settlements at remedial
sites. First , well before the RI/FS starts, EPA usually sends a
general notice to PRPs. Second, a special notice for the RI/FS
may be sent in appropriate circumstances. Third, a special
notice for the RD/RA may be sent, where appropriate.
The general notice advises PRPs of possible liability. The
special notices initiate formal negotiations and invoke a
moratorium on EPA conducting the RI/FS or response action, while
encouraging PRP participation in response activities at a site.
For remedial sites, RI/FS special notices should be issued at
least 90 days before EPA plans to obligate Fund money for the
RI/FS. For an RD/RA, the preferred approach is to issue special
notices at the time the FS and proposed work plan are released
for public comment, although notice may be issued after the
Record of Decision (ROD) is signed. Once the special notice is
sent, a 60-day moratorium on EPA's conduct of certain response
activities is triggered. If a "good faith" offer is not received
within 60 days, EPA nay proceed with its own RI/FS or removal, or
take enforcement action against the PRP. If a good faith offer
is received, EPA's goal is to conclude RI/FS negotiations with an
administrative order on consent within 90 days of the RI/FS
special notice. RD/RA negotiations are targeted for conclusion
with an RD/RA consent decree within 120 days of the RD/RA special
notice. These are statutory moratorium periods. The time frame
for the RD/RA special notice moratorium nay be extended for 30
days by the Regional Administrator and beyond that by the
Assistant Administrator, OSWER. Special educational efforts
should be conducted prior to negotiation/ moratorium to warn the
public that little if any information will be available to the
public during negotiations (see below) .
Detailed guidance on issuance of notice letters is discussed
fully in the "Interim Guidance on Notice Letters, Negotiations,
and Information Exchange" (October 19, 1987), 53 FR 5298 (OSWER
Directive 19834.1).
6.4.EK3 ge^ot 1st ions
Negotiations are generally conducted in confidential
sessions between the PRPs and the Federal government. Neither
the public, nor the technical advisor (if one has been hired by a
community) may participate in negotiations between EPA, DOJ and
the PRPs unless everyone agrees to allow such participation.
othervi** the ability of the parties to assert confidentiality
at some later date may be affected.
The confidentiality of statements made during the course of
negotiations is a veil-established principle of bur legal system.
Its purpose is to promote a thorough and frank discussion of the
issues between the parties in an effort to resolve differences.
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OSWER DIRECTIVE 9836.0-1A
Confidentiality not only limits what may be revealed publicly,
but also ensures that offers and counter-offers made in the
course of negotiations may not and will not be used by one party
against the other in any ensuing litigation.
Potentially responsible parties may be unwilling to
negotiate without the guarantee of confidentiality. They may
fear public disclosure regarding 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 restricts the type and amount of
information that can be made public.
CRC staff should consult with and obtain the approval of
other members of the technical enforcement and regional counsel
team before releasing any information regarding negotiations. If
the site has been referred or is in litigation, DOJ approval
should also be obtained. In lieu of direct participation by the
public in negotiation sessions, the CRC staff may wish to send
out the fact sheet on the Superfund enforcement process attached
to this guidance, along with the moratorium schedules for that
specific site.
6.4.B—4 Community Relations Following an RI/FS Order
As discussed above, RI/FS settlements usually are resolved
as administrative orders on consent. For remedial sites, an
RI/FS worfcplan is a trigger for implementation of community
relations activities. When the worfcplan is complete, a
"kick-off meeting with the public may be conducted in order to
present the final workplan and explain the next steps. If held,
CRC staff should make it clear that EPA approved the worJcplan;
announce how the FRF will be performing the RI/FS; explain EPA's
oversight role; discuss the enforcement process and
confidentiality requirements; and explain where EPA's record
files will be/or are located. As discussed in section 6.4.E, the
administrative record file will be available at a central
regional location, and at or near the site. Since it contains
information which the lead Agency uses in selecting a final
remedy, the administrative record file should be used as a tool
to facilitate public involvement.
Once the RI/FS has been completed, the agency will issue the
proposed remedial action plan,, and publish a notice announcing a
public comment period. At a minimum, the notice must be
published in a major local newspaper of general circulation. A
formal comment period of not less than 21 calendar days must be
provided for the public to submit oral and written comments.
Note that proposed revisions to the National Contingency Plan
(NCP) suggest extending this to not less than 30 calendar days.
An -opportunity for a public meeting is also required to be
offered during the comment period, as well as a transcript of the
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OSWER DIRECTIVE 9836.0-1A
meeting on the proposed plan. The transcript must be made
available to the public in the administrative record, and may be
distributed in the information repositories and on request. See
Chapter 4 of the Handbook for a complete outline of these
specific public participation requirements.
Once the public comment period on the proposed plan has
closed, a responsiveness summary is prepared which serves two
purposes. First, it provides lead agency decision-makers with
information about community preferences regarding both the
remedial alternatives and general concerns about the site.
Second, it demonstrates to members of the public how their
comments were taken into account as an integral part of the
decision-making process. A Record of Decision (ROD) is then
issued by EPA as the final remedial action plan for a site. Both
the ROD and the responsiveness summary will be placed in the
administrative record file and other information repositories.
In addition, the responsiveness summary may be distributed to all
those who commented and to the entire site mailing list. See
Chapter 4 of the Handbook for further information on requirements
for public notice and availability of the ROD and responsiveness
summary.
6.4. B— 5 Public Notice anfl ^Qjnent on Consent Decrees for RD/RA
If a negotiated settlement for remedial action under CERCLA
section 106 is reached, it will be embodied in a proposed consent
decree (to be entered by a court). CERCLA section 122(d)(l)
requires the use of consent decrees as the vehicle of agreement
between the Federal Government and PRPs on remedial actions taken
under section 106 of CERCLA. CERCLA section 122 contains
specific public participation requirements. The Department of
Justice lodges (provides a copy of) the consent decree with the
court, publishes a notice of the proposed consent decree in the
Federal Register, and offers an opportunity for non-signatories
to the agreement to comment on the proposed consent decree before
its entry by the court as a final judgment. The public comment
period sust not be less than 30 calendar days in length and may
be extended if warranted. The proposed consent decree may be
withdrawn or modified if comments demonstrate it to be
inappropriate, improper or inadequate.
In order to ensure that public comment opportunities are
extended to interested parties, EPA staff routinely prepare a
press release to be issued after the consent decree has been
lodged as a proposed judgment with the court. DOJ should notify
the regional counsel for the particular site and provide a copy
of the Federal Register notice of the decree. Regional counsel
will assure that the RPM and CRC are informed of this event. CRC
staff can then mail copies of the press release or copies of the
Federal Reaieter notice to persons on the site mailing list. The
press release should indicate that copies of the consent decree
document may be obtained, including its location and that of any
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OSWER DIRECTIVE 9836.0-1A
other relevant documents. The procedures for public comment on
the consent decree, as well as a contact name for obtaining
further information, should also be announced. The public notice
and press release for the consent decree may be combined, if
appropriate.
The ROD and responsiveness summary have usually been made
public by this time. However, inasmuch as comments previously
were requested on the proposed plan, comments are requested only
on the consent decree. Communications with the public should
focus on the remedial provisions- of the settlement agreement.
Details of the negotiations, such as the behavior, attitudes, or
legal positions of PRPs, any compromises incorporated in the
settlement agreement, and evidence or attorney work-product
material developed during negotiations, must remain confidential.
If a negotiated settlement for RO/RA results in actions
fundamentally different from those selected in the ROD, the ROD
will have to be amended. An amendment to a ROD also requires a
public comment period, which should coincide if possible, and be
held jointly with, the comment period for the consent decree.
A public meeting may be held during the public comment
period, at the site team's discretion. Regional staff must offer
the opportunity for a public meeting when there are significant
community issues or concerns, or for other reasons which are
determined by and based upon the judgment of EPA regional staff.
If held during the public comment period, these meetings need to
be documented, and significant oral comments received during the
meeting must be addressed in the responsiveness memorandum on the
consent decree.
Once the public comment period on the proposed consent
decree has closed, DOJ staff (in cooperation with EPA staff) must
consider each significant comment and write a response. Assuming.
that EPA and DOJ continue to believe the decree should be
entered, DOJ will then file a Motion to Enter with the court, the
responsiveness memorandum, the comments received, and the consent
decree itself. The responsiveness memorandum and motion to enter
the consent decree axe released to the public at the same time.
The Regional team will use information repositories,
administrative record files, and/ or other means to maXe these
documents available to the public.
6.4. B— 6 Ppinrntinitv Relations During: PRP Remediation
EPA retain* responsibility for community relations during a
PRP-managed remedial action pursuant to a consent decree or any
enforcement order. The scope and nature of community relations
activities will be the same as for Fund-lead response actions.
When PRPs participate in community relations activities at the
site, EPA and PRP roles need to be determined and explicitly
defined. Where a PRP has not been involved in the initial stages
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OSWER DIRECTIVE 9836.0-1A
of implementing the community relations plan, but shows
sufficient interest, commitment and capability to warrant some
level of participation, EPA should re-evaluate its role in
conducting community relations activities. In that case, a new
CRP may be developed at the discretion of the regional team. PRP
roles in conducting community relations may also be addressed in
the consent decree or other enforcement orders.
6.4. B-7 Technical Discussions
Technical meetings are considered informational, and provide
orientation to the enforcement process. One of the objectives in
holding technical meetings is to describe, instruct, and explain
how the remedy may or will (depending on whether a ROD has been
signed) address the conditions of the site. Workshops exploring
the approach to the site and project status, can occur at any
point up to and beyond remedy selection. If held during RI/FS or
RD/RA negotiations, they should be separated from the legal
discussions. The RPM may host a technical discussion without PRP
concurrence; however, willingness by the PRPs to participate may
facilitate a more open and honest dialogue with the community.
Technical information must be documented and available for
the public in the administrative record file. Technical or
factual information which comes up during negotiations should
also be included in the administrative record file. Issues of
liability, however, are appropriately discussed only during
negotiations between EPA and PRPs, and should not be included in
the administrative record file.
Technical assistance grants are authorized under section
117 (e) of CERCLA, which allows EPA to make grants available to
communities affected by a release or threatened release at an NPL
site. Community groups may 'use these grants to obtain assistance
in interpreting technical information on the nature of the hazard
and recommended alternatives for investigation and cleanup.
6.4.C Cgfan^nj-ty Relations During Removal Actions
SPA will encourage public participation during removal
actions to the extent possible. However, there will be times
when this participation may need to be constrained. The NCP, the
Handbook, and Removal Procedures establish the requirements for
removal actions, including administrative record requirements.
The enforcement program encourages PRPs to conduct or pay
for removal actions. At any time, the Agency may arrive at an
agreement with the PRPs to conduct a removal, which would usually
be embodied in an administrative order on consent. EPA also may
issue a unilateral administrative order to compel a PRP to
undertake a removal or other action. In addition, under limited
circumstances, the Agency may refer the action to DOJ, seeking a
court order to secure the removal.
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OSWER DIRECTIVE. 9836.0-1A
By their nature, the situations that require emergency
removals do not allow for extensive public involvement.
Adjustments to the community relations process aust be made to
accommodate necessary time constraints. It is proposed in the
draft NCP that a public comment period of at least 30 days be
required for removals with a planning period of at least 6 months
before the initiation of on-site activity. For removals with a
planning period of less than 6 months before the initiation of
on-site activity, a public comment period may be held where
appropriate. The public comment period, if held, begins when the
record file is made available for public inspection.
A unilateral administrative order or administrative order on
consent is a public document and should be made available to the
affected community at a minimum, through the administrative
record file. In addition, community relations staff should
discuss the terms of the order with and describe the removal
action to citizens, local officials, and the media. If the PRP
subsequently fails to respond to the order, any public statements
or information releases regarding the status of actions at the
site or prospective EPA actions should first be cleared with
appropriate Regional technical and legal enforcement personnel.
Community relations activities during removals conducted by
PRPs should be the same as for Fund-financed removals. PRPs may
participate in community relations, subject to the same
considerations described previously in this guidance under
Section 6.4.A-3.
6.4.D Community Relations During Specific Enforcement Actions
and Settlements
6.4.D-l Consent Decrees. De Minimis and Cost Recovery
Settlements
Under section 122(d)(l) of CERCLA, settlements for remedial
action are to be in the fora of consent decrees filed in Federal
court. Section 122(d}(2T(B) requires DOJ to provide an
opportunity for public comment on proposed consent decrees. This
concept is discussed in section 6.4.B-5.
Section 122(i) of CERCLA requires the lead Agency to publish
a notice of proposed settlement, for both administrative orders
on consent under section 122(g)(4) (de minimis settlements), and
under section 122(h) (cost recovery settlements/arbitration).
The notice published in the Federal Register must identify the
facility concerned and the parties to the proposed s*v-tlement.
A public comment period of not less than 30 days is required
for these agreements. Regional staff should provide notice
(e.g., a press release, notice to persons on the site mailing
list or an ad in the newspaper of local circulation) to
supplement the Federal Register notice. The press release should
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OSWER DIRECTIVE 9836.0-1A
provide a contact for further information.
The lead agency with jurisdiction must consider any comments
filed, and determine if the proposed settlement requires
modification where comments demonstrate that the proposed
agreement is inappropriate, improper or inadequate, or can become
effective without change. The fii.al settlement and the response
to comments must be released at t> a same time and be made
available to the public. This can be accomplished by placing
both documents in the administrative record file. The response
to comments document (responsiveness summary) should also be sent
directly to those who commented. PRPs who are party to the
settlement will receive notice from the Agency that the agreement
will go into effect unchanged or that modifications are required.
A statement that the responsiveness summary may be obtained from
the administrative record file or upon request should be added to
this notice.
6.4.D-2 In^unctive Litigation
At any point in the enforcement process, a case may be
referred to DOJ for litigation, and community relations
activities may change in scope. Referral is likely to occur most
frequently for RD/RA after the moratorium has concluded. If
litigation is initiated early in the enforcement process, the CRP
for the site may need to be modified substantially. If
litigation is initiated late in the process (e.g., after the
conclusion of the RD/RA special notice moratorium), the plan will
require only the addition of the litigative process.
When a case has been referred to DOJ, community relations
activities at the site should be re-evaluated by the site team,
and changes necessary to accommodate confidentiality should be
agreed upon by the site team, including DOJ. While strong
consideration should be given to implementing the plan as
developed and previously approved, the litigation process may
require changes in public disclosure. For example, the court
may impose a gag order or place restrictions on information
releases during negotiations or any meetings with the public to
discuss potential site remedy. Under these circumstances, the
DOJ attorney vill advise the site team on how to proceed.
6.4.D-3 Coat Recovery
If a Fund-financed cleanup is conducted, EPA may initiate
litigation to recover the costs of response. Since cost recovery
generally follows removal actions or initiation of remedial
action, community interest in the site usually will have
lessened, unless other operable units remain to be addressed.
A spokesperson chosen by the site team, in coordination with
DOJ, should take the lead in responding to inquiries regarding
current site conditions. All inquiries regarding litigation
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OSWER DIRECTIVE 9836.0-1A
should be forwarded to the EPA cost-recovery team, which will
prepare a response subject to the concurrence of DOJ.
6.4.D-4 Interaction with RCRA And other Fe.fle.ral and State Lavs
On May 5, 1987, the Office of Solid Wast* and Emergency
Response issued guidance for public involvement in RCRA
section 3008(h) actions (QSWER Directive 19901.3). This guidance
establishes the process for public involvement in actions taken
under section 3008(h) of RCRA.
Section 3008(h) of RCRA, the interim status corrective
action authority, allows EPA to take enforcement action to
require cleanup at a RCRA interim status facility when the Agency
has information that there has been a release of hazardous waste
or hazardous constituents. Two orders will frequently be used to
implement the cleanup program. The first order requires the
facility owner or operator to conduct a Corrective Measure
study/RCRA Facility Investigation (RFI/CMS), similar to the
RI/FS. Once the remedy has been selected, a second order
requires design, construction, and implementation of that remedy.
The RCRA guidance outlines both minimum public involvement
requirements and expanded public involvement suggestions. In
many ways the RCRA guidance uses procedures and ideas drawn from
the Superfund community relations program. Thus, coordination
between Superfund and RCRA personnel at sites where actions under
both CERCLA and RCRA are anticipated is appropriate. Superfund
CRCs may want to become familiar with this guidance and with the
RCRA Public Involvement Coordinators to ensure that the Agency
presents a coordinated approach.
Familiarity with other Federal or state laws such as the
Clean Air Act, Clean Water Act, etc. will generally make the role
of the CRC easier, for frequently many media are represented at a
hazardous waste site. A general knowledge of Federal or state
requirements may help the CRC in conversing with the public.
6»4.X The Administrative Record As Part of Community Relations
6.4.1-1 purview
Section 113(k)(l) of CERCLA requires the establishment of an
administrative record upon which the selection of a response
action is based. It also requires that a copy of the
administrative record be located at or near the site. Section
113(X)(2) of CZRCIA requires that the Agency promulgate
regulations outlining procedures for interested persons to
participate in developing the administrative record. The Agency
is addressing these statutory requirements through revisions to
the NCP and through the development of a guidance document.
Throughout the decision-making process, from remedial
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OSWER DIRECTIVE 9836.0-1A
investigation to selection of remedy, the administrative record
file will be available for public inspection at a central
regional location and at or near the site. The information in
the file is crucial to the public in that it contains the
information upon which the lead Agency bases its decisions toward
selecting a final reredy. Community relations staff should use
the administrative rrcord file as a tool for facilitating public
involvement.
Publicly-available documents concerning response selection
must be made available to all interested parties at the same
time. EPA staff should avoid situations where local residents
are provided opportunities to review and comment on site
information and other members of the public are not provided the
same opportunity, similarly, if EPA requests PRPs to review a
plan, EPA should enable other members of the public to review
that plan as well. When a kick-off meeting is scheduled to
explain the final workplan and obtain opinions, the public,
including residents and PRPs, should be invited.
The administrative record file and CRP for a remedial action
should be made available to the public no later than the time the
remedial investigation phase begins, which is usually when the
RI/FS workplan is approved. The timing for establishing the
administrative record file for a removal action will depend on
the nature of the removal. As proposed in the draft NCP, for
removals with a planning period of at least six months before
on-site activities will be initiated, the record file must be
made available to the public when the engineering evaluation/cost
analysis (EZ/CA), or its equivalent, is available for public
comment. For removals with a planning period of less than six
months, the record file must be available to the public no later
than 60 days after the initiation of on-site cleanup activity.
6.4* E—2 Purpose of the Administrative Record.
The administrative record has a two-fold purpose. First,
the record provides an opportunity for the public to be involved
in the process of selecting a response action. During the
selection of a response action, information is reviewed and made
available; in the publicly accessible administrative record file.
Second, if the Agency is challenged concerning the adequacy of a
response action, judicial review of a response action selection
will be limited to the administrative record. By limiting
judicial review to the record, a court's review is based upon the
same information that was before t»-e Agency at the time of its
decision. The public should be advised that their comments must
be submitted in a timely manner in order to be considered.
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OSWER DIRECTIVE 9836.0-1A
6.4.E-3 Commnitv Relations Coordinator P^gpOnaibilitl«a for the
Administrative Record)
The OSC/RPM and regional attorney, with the support of the
administrative record coordinator, are responsible for deciding
which documents are to be included in the administrative record,
and ensuring its adequate compilation and maintenance. The
Regional Administrator or his designee is responsible for the
certification of the record for litigation. CRCs will have some
general duties in developing the record file, but every region
has defined different roles. In general, however, the CRC duties
will center on the relationship of the administrative record file
to the information repositories, public notices and public
comments.
First, CRCs and administrative record staff must coordinate
the location of the administrative record file and information
repositories. The statute requires that the administrative
record be available at or near the facility at issue, and that
information be available for public inspection and copying. If
the information repository does not contain a copying facility,
the Region or State may want to make arrangements for copying the
record file. EPA, however, is not required to copy the
information for interested persons.
Second, the notice of availability for the administrative
record must be published in a major local newspaper of general
circulation. A copy of the public notice must also be placed in
the administrative record file and may be made available to the
public through the community relations mailing list. (See the
Overview section above for a discussion of when the
administrative record file must be made available to the public.)
This notice may be combined with other notices of availability
depending on the timing of activity at a site, e.g., a notice of
availabilty of the information repository. Where appropriate, a
notice of availability of the record file or of commencement of
the public comment period may be published in the Federal
Register. The public is not notified each time a document is
added to the record file. These notices should be coordinated
between the CRC and administrative record staff in order to use
resource* most efficiently. For a more complete discussion of
the notice of availability, see the Guidance on Administrative
Records for Selection of CZRCLA Response Actions (OSWER Directive
19833.3A).
Third, the completed CRP must be placed in the
administrative record file, community Relations Coordinators
must advise the Administrative Record Coordinator that the CRP is
final and provide him/her with a copy.
Fourth, information contained in records of communication
that were generated by the community relations staff and
considered or relied on in selecting a response should be
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OSWER DIRECTIVE 9836. 0-1A
included in the record file. in addition, Superfund CRCs should
take appropriate steps to ensure that any community relation*
document* that are required to be placed in the administrative
record file are provided to the Regional official responsible for
the record file-.
Fifth, the text of all comments, criticism* and new
information submitted by the public, including PRPs, during the
public comment period must be included in the record file. A
retpwnse to all significant comments (i.e., the responsiveness
summary) must also be placed in the administrative record file.
The responses may be combined by subject or other category in the
record file.
The record file should reflect the Agency's consideration of
all significant public comments. The Agency has no duty to
respond to comments it receives during a formal comment period
until the close of that formal public comment period, if the
Agency chooses to respond to a comment made prior to a formal
public comment period, the response must be included in the
record file. The Agency may suggest that comments submitted
prior to a formal public comment period be resubmitted during the
comment period if the commenter desires a response. Or the
Agency may notify a commenter that the Agency will respond to the
comment in a responsiveness summary prepared at a later date.
Comments which are received after the formal comment period
closes and before the decision document is signed should be
included in the record file but labeled "late comment." Since a
responsiveness summary may already have been prepared at this
point, the Agency must respond to late comments only if they
contain significant new information not contained elsewhere in
the administrative record which could not have been submitted
during the public comment period, and which substantially support
the need to significantly alter the response action.
Comments received after the decision document is signed
should be placed in a post-decision document file. They may be
added to the record file if: the documents concern issues
relevant to the selection of the response action that the
decision document does not address or reserves to be decided at a
later data* or where there is a significant change in a response
selection which is addressed either by an explanation of
significant differences, or in an amended decision document. The
Guidance on Administrative Records cited above gives additional
information in this regard.
6.4. E— 4 Additional PglPP^TT^^^ Relations Coordinator
Reaponaibilittea
Because of regional differences CRCs may have additional
general responsibilities, including:
17
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OSWER DIRECTIVE 9836. 0-1A
Assessing th« impact of the administrative record file
on local information repositories by consulting with
officials at the repositories. This must be done in
coordination with the. Administrative Record Coordinator.
CRCs should advise the public where the administrative
record file is located.
Providing the Administrative Record Coordinator with
information as to how to notify the public of the
availability of the record file. This notification nay
be in addition to the newspaper notice.
Making available the transcript of the local meeting on
the proposed plan, as required under section 117 (a) of
CERCLA.
Providing assistance to the Administrative Record
Coordinator to ensure that final comments made by EPA on
important documents generated by the State or a Federal
facility are documented in writing and submitted to the
State or Federal facility staff for inclusion in the
administrative record file. States and Federal facility
staff will compile and maintain the administrative record
files for those sites.
All staff involved in Superfund activities must become familiar
with the administrative record requirements.
6.4. E— 5 Relationship Between the Adm.injg^ra.'ti.ve Record and
Information Repositories
Section- 113 (k) (1) of CERCLA requires that "the administrative
record shall be available to the public at or near the facility
at issue." Duplicates of the administrative record may be placed
at any other location. The original files concerning response
action selection should be located at the EPA Regional office. A
copy of these files must be located at or near the site. The
draft NCP proposes that an exception be made for emergency
removal actions where on-site activities cease within 30 days of
initiation.
Section 117 (d) of CERCLA requires that "each item developed,
received, published, or made available to the public under
section 117 shall be available for public inspection and copying
at or near the facility at issue. « These items are generally
included in the information repository.
The administrative record file at or near the site at issue
should be located at one of the information repositories that
already may exist for community relations purposes. The
information repository, maintained by the Community Relations
Coordinator, may contain additional information of interest to
the public, that is not necessarily part of the administrative
18
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OSWER DIRECTIVE 9836.0-1A
record file (e.g., press releases and newspaper articles).
Documents in the administrative record file should be separated
from the other materials in the information repository.
EPA typically uses local libraries, town halls, and public
schools as locations for establishing repositories and
administrative record files because they are publicly accessible.
In some instances, the volume of information available for
community relations and administrative record purposes may be
larger than the capacity of these locations. Where the space of
the information repository is inadequate for supporting the
administrative record file, an alternate location for the
administrative record file should be established. Administrative
Record Coordinators should estimate the volume of information
expected to be included in the repository and meet with
appropriate local officials to discuss space requirements. In
some situations, separate locations may have to be established.
Administrative Record Coordinators and CRCs must inform one
another of any additional information placed in these separate
locations to ensure uniformity. CRCs should carefully review
their responsibilities for the administrative record (Section
6.4.E-3).
Each administrative record file oust be indexed. This index
identifies all the documents which comprise the record file, and
lists those documents which do not have to be present in the
record file because of their voluminous nature (raw data for
example), but which are considered part of the record. Their
location must be provided. This index is part of the record file
and must be available at each record file location.
Finally, interested parties should be able to easily find
the document(s) they need. Documents in the administrative
record file should be well organized. The CRC and administrative
record staff should coordinate with the state in .closing
information repositories and record files at the end of operation
and maintenance, and following a five-year review.
19
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EPA
United States
Environmental Protection
Agency
Office of Solid Wute
and Emergency Response
Washington, D.C. 20460
Office of Waste Programs Enforcement
Summed 988
Environmental
Fact Sheet
The Superfund Enforcement
Process: How It Works
INTRODUCTION
In 1980, Congress passed the Comprehensive Environ-
mental Response, Compensation and Liability Act
(CERCLA), commonly called Superfund. This law pro-
vides the U.S. Environmental Protection Agency (EPA)
with the authority and necessary tools to respond directly or
to compel potentially responsible parties (PRPs) to respond
to releases or threatened releases of hazardous substances,
pollutants or contaminants. CERCLA created two parallel
and complementary programs aimed at achieving this goal
The first program involves the creation of a trust fund
financed through a special tax on the chemical and petro-
leum industries. This trust fund, known as the Superfund,
may be available for site remediation when no viable PRPs
are found or when PRPs fail to take necessary response
actions. PRPs are defined as parties Mt«Hfl^ as having
owned or operated hazardous substance sites, or who have
transported or iiiauged for disposal or treatment of hazard-
rtijy aifot^fyff^pnn^ir^fmfy^ny[f«n^in«i»t y TOCfUffff TTlg
second program provides EPA with the authority to negoti-
ate settlements, to issue orders to PRPs directing them to
take necessary response actions, or to sue PRPs to repay the
costs of such actions when the Trust Fund has been used for
these purposes. The actions EPA takes to reach settlement
or to compel responsible parties to pay for or undertake the
remediation of sites are referred to as the Superfund enforce-
ment process. CERCLA was reauthorized and amended on
October 17, 1986. by the Superfund Amendments and
Reauthorization Act (SARA). SARA provides EPA with
new authorities and tools that strengthen the enforcement
program.
LIST OF ACRONYMS
CERCLA: Comprehensive Environmental Response,
Compensation and Liability Act of 1980
IAG: Interagency Agreement
NEAR: Non-binding Allocation of Responsbiiity
NPL • National Priorities List
PRP: Potentially Responsible Party
RCRA: Resource Conservation and Recovery Act
as Amended
RO/RA Remedial Design/Remedial Action
RI/FS: Remedial tnvesUgatorvFeastol'ity Study
ROD: Record of Decision
SARA: Superfund Amendments and
Reauthorization Ad of 1986
This fact sheet describes the enforcement authorities and the
process that is followed under the Superfund program. It de-
scribes the options available to EPA for remediating hazard-
ous waste sites; the tools and mechanisms that EPA may use
in negotiating settlements with PRPs. and describes the
decision-making process at enforcement sites.
OVERVIEW OF THE ENFORCEMENT
PROGRAM
A major goal of the Superfund program is to encourage PRPs
to remediate hazardous waste sites. The enforcement proc-
ess normally used by EPA to enlist PRP involvement may
include five major efforts.
1
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SUPERFUND REMEDIAL/ENFORCEMENT PROCESS
REMOVAL ACTIONS
OCCURPWOR TO 0* DUWNG THE RQiBEDUL
To understand the enforcement process, it is necessary to under-
stand the Superfund remedial process. Under the *»"»*»<«•' pro-
gram, EPA takes long-term actions to stop or substantially
reduce releases or threats of releases of hazardous substances
that are serious but not immediately life-threatening. Removal
actions, which are short-term, immediate actions intended to
stabilize a hazardous incident or remove contaminants from a
site that pose a threat to human health or welfare or the environ-
ment, may be taken at any point in the remedial process.
The Superfund process begins with a preliminary assessment/
site inspection (PA/SI). This usually is conducted by the State,
to determine whether the site poaes a significant, enough poten-
tial hazard to warrant further study and investigation.
The site is then ranked using the Hazard Ranking System (HRS),
a numerical ranking system used to identify the site's potential
hazard to the environment and public health. Sites assigned an
HRS score of 28 Jar above are added to the National Priorities
List(NPL).
Next, a i*m**ii»i investigation (RI) is conducted to assess lite
extern and nature of the contamination and the potennaJ risks. A
feasibility study (FS) is then prepared to examine and evaluate
various remedial alternatives.
Following a public comment period on EP A's preferred altema-
tive and the draft FS report. EPA chooses a specific remedial plan
and outlines its selection in the Record of Decision (ROD).
Once the rrmndial design (RD) (which includes engineering
plans and specifications) is comoteted. the actual site work, or
"••"••^•i action (RA) can begin. After RD/RA activities have
been completed, the site is monitored to ensure the effectiveness
of the response. Certain measures require ongoing operation or
periodic maintenance.
First, EPA attempts to identify PRPs as early in the Super-
fund process as possible. Once identified, EPA will notify
these parties of their potential liability for response work
when the site is scheduled for some action. Second, in the
course of identifying response work to be done, EPA wiE
encourage PRPs to do the work at a site.
Third, if EPA believes the PRP is willing and capable of
doing the work, EPA wffl attempt to negotiate an enforce-
ment agreement with the PRP(si The enforcement agree-
ment may be an agreement entered in coon (such as a
judicial consent decree) or it may be an administrative
order (where EPA and the PRP(s) sign an agreement
outside of court). Both of these agreements are enforce-
able in a court of law. Under both agreements EPA
oversees the PRP.
Fourth, if a settlement is not reached. EPA can use its
authority to issue a unilateral administrative order or
directly file suit against the PRP(s). Under either course
of action. PRPs are directed to perform removal or reme-
dial actions at a site. If the PRPs do not respond to an ad-
ministrative order. EPA has the option of filing a law suit
to compel peifomance.
Fifth. ifPRPs do not perform the response action and EPA
undertakes the work. EPA win file suit against PRPs.
when practicable, to recover money spent by EPA and
deposit it in the Superfund Trust Fund. This is called cost
recovery, and it is a major priority under the Superfund
THE ENFORCEMENT PROCESS FOR
REMEDIAL ACTIONS
PRP Search and Notice
EPA is committed to strengthening efforts to reach settle-
ments with PRPs, EPA believes that settlements are most
likely to occur when EPA interacts frequently *>ih PRPs.
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ENFORCEMENT AUTHORITIES
The original Supertax! program was reauthorized iod expanded
on October 17, 1986, when President Reagan signed irao law the
Superfund Ameadments and BMntfrn^Tatinn Act of 1986
(SARA). These amendments increased the Superfund Trust Fund
to $8.5 billion and clari*ifd aad expanded enforcement
authorities:
• Access and InformatfcM Gathering - SARA are
EPA's ability to obtain access to investigate sites and to
obtain information from parties with knowledge of the site.
• Settlement Authorities - CERCLA authorizes EPA to
compel a PRP to undertake necessary actions to control the
threat of imminent and substantial endangennent to human
health or the environment. To accomplish this, EPA may
either issue an administrative order or bring a civil action
against the PRP in court SARA outlines specific procedures
for negotiating settlements with PRPs to conduct voluntary
response actions at hazardous waste sites.
• Cost Recovery - Once a Fund-financed response has been
undertaken, EPA can recover costs from the responsible
parties. PastandpiesentCaciliryownenandoperaton,aswell
as hazardous substance generators and transporters, can all be
liable under Superfund for response costs and for damage to
natural resources. EPA may recover Federal response costs
from any or all of the responsible parties involved in a
remedial action. The monies recovered go back into the Fund
for use in future response actions.
• Criminal Authorities - SARA increases criminal penalties
for failure to provide notice of a reknr, and makes whrniiring
ffli«e information a criminal offense.
• CfttMaSoiis-SARAaiuhorizesacitizentosueanyperson,
the United States, or an individual State for any violation of
standards and requirements of the law, under certain
conditions.
Federal Facilities
SARA also adds a section dealing with releases of hazardous sub-
stances at Federal facilities. This provision clarifies that Super-
fund applies a Federal agencies and mat they must comply with
its requirements. SARA clearly defines the process Federal
agencies must follow in undertaking remedial responses. At
NPL sites, EPA makes the final sfle^doa of the remedy if the
Federal agency and EPA disagree. A Federal agency must
rmKKliatc a Federal facility through an interagency agreement
(IAG). except in emergency situations. LAGs are enforceable
agreements between Federal agencies that are subject to the
citizen suit provisions in SARA and to section 109 penalties, if
the responding agency does not comply with the terms of the
agreement.
SARA also provides a schedule for response actions at Federal
facilities, including a schedule for preliminary assessments,
listing on the National Priorities t '«* remedial investigations/
feasibility studies, awl remedial actions. State and local officials
also must be given the opportunity to participate in the planning
and selection of any remedy, including the review of all data.
Slates are given a formal opportunity to review remedies to
ensure that they incorporate State standards. Public participa-
tion in addressing releases at Federal facilities is enhanced by
SARA, which establishes a Federal Agency Hazardous Waste
Compliance Docket. This docket functions as a repository of in-
formation for the public and is available for public inspection.
Every six months after establishment of the docket, EPA will
publish in the EalcaULfiguia a list of me Federal facilities that
have been included in the docket during the proceeding six-
month period.
This interaction is important because it provides the oppor-
tunity to share information about the site and may reduce
delays in conducting
The enforcement process begins with the search for PRPs,
concurrent with NPL listing.
Once identified, PRPs are typically issued a general notice
letter. The general notice informs PRPs of their potential
liability. The general notice also may include a request for
and a release of information on PRPs and the substances at
the site. The overall purposes of the general notice are to
provide PRPs and the public with advance notice of possible
future negotiations with EPA, to open the lines of commu-
nication between EPA and PRPs. and to advise PRPs of
iil liability.
m addition to the general notices, EPA may issue a "special
notice," which invokes a temporary moratorium on certain
EPA remedial and enforcement activities. An RJ/FS special
notice initiates a 9Q
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Negotiation for the RI/FS
Mixed Funding
The PRP may condua tfae RI/FS if EPA determines the PRP
is qualified to conduct the RI/FS and if the PRP agrees to
reimburse EPA for the cost of oversight The terms of this
agreement to conduct the RI/FS are outlined in either an
Administrative Order on Consent or a Consent Decree, both
of which are enforceable in court If negotiations do not
result in an order or a decree, EPA may use Trust Fund
monies to perform the RI/FS and seek reimbursement for its
costs.
Negotiations for the RD/RA
Where a special notice is used, the moratorium for RD/RA
may be extended to a total of 120 days. The terms of the
agreement to condua the RD/RA are outlined in a Consent
Decree, which all parties sign and is entered in court If ne-
gotiations do not result in a settlement, EPA may conduct the
remedial activity using Trust Fund monies, and sue for reim-
bursement of its costs with trie assistance of the Department
of Justice (DO J). Or EPA may issue a unilateral administra-
tive order or dirccUy file sxiit to force the PRPs to condua the
remedial activity.
Administrative Record
The information used by EPA to select a remedy at a site
must be made available to the public. This information, in-
cluding public comments, is compiled and maintained in the
administrative record files. The administrative record
serves two main purposes. First, it ensures an opportunity
for public involvement in the selection of a remedy at a site.
Second, it provides a basis for judicial review of the
selection.
TOOLS FOR ENFORCEMENT
In addition to outlining the procedures for the enforcement
process, CERCLA provides tools that are designed to help
EPA achieve settiemenu. The CERCLA settlement authori-
ties may be used by EPA to foster negotiations with PRPs
instead of taking them to conn. EPA believes that PRPs
should be involved early in the Superfond process at a site.
It is in the best interest of PRPs to negotiate with EPA and to
conduct the RI/FS. as this can keep the process smooth and
costs can be controlled. EPA actively promotes settlements
with PRPs using tools in SARA and is continuing to work
towards improvements in the settlement process itself.
These new SARA tools include, but are not limited to:
CERCLA authorizes the use of "mixed funding." In mixed
funding, sealing PRPs and EPA share the costs of the re-
sponse action and EPA pursues viable non-settlers for the
costs EPA incurred. Through guidance, EPA discusses the
use of three types of mixed funding arrangements. These are
"preauthbrization." where the PRPs condua the remedial
action and EPA agrees to reimburse the PRPs for a portion
of their response costs "cash-outs," where PRPs pay for a
portion of the remedir' costs and EPA conducts the work;
and "mixed work," v nere EPA and PRPs both agree to
condua and finance d* 'Crete portions of a remedial action.
EPA prefers a "preauthorized" mixed-funding agreement
where PRPs condua the work.
EPA encourages the use of ""*pd funding to promote
settlement and site remediation, but will continue to seek
100 percent of response costs from PRPs where possible.
Use of mixed funding does not change EPA's approach to de-
termining liability. PRPs may be held jointly and severally
liable and EPA will seek to recover EPA's mixed funding
share from non-sealing PRPs whenever possible.
JJg ££injmjs Settlements
De mjnnnis settlements are «maiiy agreements separate
from the larger settlement for the chosen remedy. Under &
minimi* settlements, relatively small contributors of waste
to a site, or certain "innocent" landowners, may resolve their
liability. Innocent landowners are parties who bought prop-
erty without knowing that it was used for hazardous waste
hmflfag, Or EPA may enter into jfc minim is settlement
agreements with a party where the settlement includes only
a minor portion of the response costs and when the amount
of waste represents a relatively minor amount and is not
highly toxic, compared to other hazardous substances at the
facility, pe minimi* trtttemitnia also mav be used where the
PRP is a site owner who did not condua or permit waste
management or contribute to die release of hazardous sub-
stances, r&mjnjmjisettlements are typically used in con-
junction with covenant not to sue agreements. These agree-
ments generally will be in die form of administrative orders
on consent and are availabk for public comment
Covenants Not To Sue
A covenant not to sue may be used to limit die present and
future liability of PRPs, thus encouraging them to reach a
settlement early. However, agreements generally include
"reopeners" that would allow EPA to hold parties liable fo|
-------
conditions unknown at tbe time of settlement or for new in-
formation indicating that tbe "'ipgdial action is not protec-
tive of human health and the environment In some ca$e$.
such as d& minimi^ jtfft>*nff*o, releases may be granted
without reopeners. Covenants not to sue are likely to be
used only in instances where the negotiating PRP is respon-
sible for only a very small portion of a site, and. therefore,
EPA is assured that any future problems with the site are not
likely to be the result of that PRP*s contribution
Non-binding Allocations of Responsibility (NBAR)
NBAR is a process for EPA to propose a way forPRPs to
allocate costs among themselves. EPA may decide to
prepare an NBAR when the Agency determines this alloca-
tion is likely to promote settlement AnNBARdoesnotbind
the government or PRPs and cannot be admitted as evidence
or reviewed in any judicial proceeding, including citizen
suits. Since each PRP may be held liable for the entire cost
of response, regardless of the size of its contribution to a site.
knowing EPA' s proposed allocation scheme may encourage
the PRPs to settle out of court rather than run the risk of being
held fully responsible.
STATE PARTICIPATION
The Superfund program allows for and encourages State
participation in enforcement activities. First, EPA is re-
quired to notify the State of negotiations with PRPs and
provide the opportunity for the State to participate. States
may be a party to any settlement in which they participate.
In addition, EPA is authorized to provide funds to States to
allow State participation in enforcement activities and to
finance certain State-lead enforcement actions.
PUBLIC PARTIdPATION/COMMUNTTY
RELATIONS
EPA policy and the Superfund law establish a strong pro-
gram of public participation in the decision-making process
at both Fund-lead and enforcement sites. The procedures
and policy for public participation at enforcement sites are
basically the same as for non-enforcement sites. This fact
sheet is limited to those special differences in community
relations when the Agency is negotiating with or pursuing
litigation against PRPs. The contact listed below has nu-
merous fact sheets on the Superfund program, including a
fact sheet on Public Involvement.
Community relations at enforcement-lead sites may differ
from community relations activities at Fund-lead sites
because negotiations between EPA. DOJ and PRPs gener-
ally focus on the issue of liability. The negotiation process.
thus, requires that some information be kept confidential
and is not usually open to the public.
When these discussions deal with new technical'informa-
tion that changes or modifies remedial decisions, this infor-
mation wiU be dccumented and placed in the administrative
record files. This process provides the public with critical
information and enables the Agency to move quickly to-
wards settlement. Information on enforcement strategy,
details of the negotiations, such as the behavior, attitudes, or
legal positions of responsible parties; and evidence or attor-
ney work product material developed during negotiations.
must remain confidential
FOR MORE INFORMATION:
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Attachment
AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGEIJCY
I hereby certify that being a person over 18 years of age, I served
a copy of the attached subpoena:
(checJc one) ( ) in person
( ) by registered mail
( ) by leaving the copy at the principal place of
business, which is,
( ) by other method:
on the person named on the subpoena on
[date]
signature of
server
name of server
title
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Attachment
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
IN THE MATTER OF: ) MISC. NO.
)
UN..TED STATES of AMERICA, Petitioner )
)
v. )
Respondent )
)
; )
PETITION FOR ENFORCEMENT OF AN ADMINISTRATIVE SUBPOENA
ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY
The united States of America, through the Attorney General,
and at the request of the Regional Administrator, United states
Environmental Protection Agency (EPA) Region , hereby petitions
the Court for an Order to Show cause why the Respondent should not
be ordered to comply forthwith with the administrative subpoena
previously served upon him.
In support of this Petition, the Petitioner alleges as
follows:
1. TH« Court has jurisdiction over this matter pursuant to
28 U.S.C. J51331 and 1345, and 42 U.S.C. S9622(e)(3)(B) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
2. , the Regional Administrator of Region
of the EPA , [cityj, [state] has requested that the Attorney
General commence this action.
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3
[8. By latter dated , Petitioner denied
Respondent's request and reaffirmed the subpoena date
Petitioner's letter is attached as Exhibit D.]
9. On . the return date specified in the subpoena,
[Respondent failed to appear to testify; failed to answer certain
questions put to him; failed to provide the information requested
by subpoena.] [Note: Where a Respondent has failed to answer
specific questions, or has not provided certain documents, those
questions or documents should be specified.]
WHEREFORE, the Petitioner respectfully prays that:
l. This Court enter an Order to Show cause directed to the
Respondent, ordering the Respondent:
(a) to appear expeditiously and Show cause why the
subpoena should not be enforced against him, and
(b) to file expeditiously a written response to the
allegations in the Petition by a date certain.
2. This Court enter an Order at the conclusion of these
proceedings enforcing the EPA subpoena and requiring the Respondent
to comply ftaiy with the tarns of the EPA subpoena.
3. tti» Court render such other and further relief as is
just and proper.
Dated: Respectfully submitted,
Attorney for
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2
3. The Respondent, , is [short description,
e.g. "former owner of a waste transporting and disposal business."
Be sure to identify as an owner or corporation.J
4. Section 122(e)(3)(B) of CERCLA, as amended, 42 U.S.C.
9622(e)(3)(B), grants the President the authority to issue
administrative subpoenas to gather information necessary to
implement §122 (Settlements). Such information includes,
inter alia, the nature and extent of contamination at the site,
possible remedies and the identities of potentially responsible
parties.
5. The President delegated the authority to issue
administrative subpoenas under CERCLA to the Administrator of the
EPA on January 23, 1987 by Executive Order 12380 (52 Fed. Reg.
2923, January 29, 1987). This authority was, in turn, delegated
from the Administrator to the Regional Administrators by Delegation
14-6, "Inspections, Sampling, Information Gathering, SuJ—oenas and
Entry for Response," signed September 13, 1987. (Attache^;
6. In conjunction with the investigation at [site], and
pursuant to $122(e) (3) (B) of CERCLA, as amended, 42 O.S.C.
9622(e)(3)(B), Petitioner issued an administrative subpoena on
[date], directing the Respondent to [provide certain information.]
The subpoena is attached and incorporated herein as Exhibit A. An
affidavit of service is attached as Exhibit B.
[7. By letter dated , Respondent requested
Petitioner to extend the return date of the subpoena. Respondent's
letter is attached as Exhibit C.]
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OSWER # 9835.6
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NOV IT 1988
MEMORANDUM
SUBJECT: Guidance on Premium Payments in CERCLA Settlements
—H-.CL i.--t ^ •>*£-• \~
FROM: Thomas L. Adams, Jr. \
Assistant Administrator for Enforcement
and Compliance Monitoring
J. Winston porter
Assistant Administrator for Solid Waste
and Emergency Response
TO: Regional Administrators
Regional Counsels
Regional Waste Management Division Directors
I. BACKGROUND AMD PURPOSE
Attempts to reach settlements under the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. $59601 et sea.. as amended by the
Superfund Amendments and Reauthorization Act (SARA) of 1986,
Pub. L. No. 99-499, pose difficult problems for both the
regulated community and the Agency. Potentially responsible
-parties (PRPs) are often reluctant to settle hazardous waste
enforcement cases because future cleanup costs are unknown;
they seek broad covenants not to sue in an effort to provide
a final determination of the extent of their liability.
EPA, on the other hand, is reluctant to assume the risk that
further site remediation win be required following
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2
completion of the work contemplated in the settlement
agreement or \_hat the cost estimate is inaccurate.
One way to address these obstacles to settlement is for
EPA to require, in appropriate situations, a "premium
paymem" from PRPs in exchange for the Agency assuming
future remediation and financial risks. The term "premium
payment" refers to a risk apportionment device, similar to
an insurance premium, under which the risk taken by the
government for providing PRPs with a release from liability
not usually available (e.g., a covenant not to sue without
the usual "reopeners" or a covenant not to sue for certain
types of cost overruns) is offset by a payment in excess of
the cost projected to complete the remedy. The premium
should be sufficient to compensate EPA for taking the risks
associated with the following types of contingent future
costs: (l) cost overruns when the selected remedy costs
more to complete than estimated; and (2) additional costs
when more remedial work is required because the selected
remedy is not adequately protective of human health and the
env i r onstent.1
Th« purpose of this memorandum is to provide guidance
on th« use of premium payments in CERCLA settlements. It
1 As discussed in Section IV, infra. "Timing of
Premium Payment Setwlements," premium payment settlements
will not usually occur until after the remedy has been
selected. Thus, the permanence of the remedy chosen will
not be affected by the existence of a premium payment and
such settlements are not considered to be inconsistent with
Section 122(C)<1) Of CERCLA.
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3
describes the key features of a premium payment settlement,
considerations regarding timing of the settlement, and the
factors to be considered in deciding if a premium should be
accepted. Settlements with de minimis parties, as
authorized by Section 122(g)(l)(A) of CERCLA, win usually
include a premium payment if the de minimis parties seek a
complete release from future liability. Use of premium
payments in such settlements is discussed in the Agency's
"Interim Guidance on Settlements with De Mir^imis Waste
Contributors under Section 122(g) of SARA," 52 Fed. Reg.
24333 (June 30, 1987).
II. THE PREMIUM PAYMENT CONCEPT
A. Premiums Designed to Address Future Li^ftii;it;y
Section 122(f)(l) of CERCLA authorizes EPA in certain
circumstances to provide .to PRPs covenants not to sue for
liability, including future liability, resulting from a
release or a threatened release of a hazardous substance
addressed by a remedial action.2 Typically, settlements3 in
which PRPs reimburse EPA for past costs and future oversight
costs and undertake performance of the remedy include
covenants not to sue for past costs and for present
2 This authority is discretionary, but in two
circumstances, specified in section I22(f)(2), EPA must
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4
liabilities (e.g., construction of the remedy). They may
also include covenants not to sue for future liability,4
usually with certain exceptions (i.e., reopeners). Under
Section 122(f)(3), covenants not to sue for future liability
may not take effect until EPA certifies that the remedial
action is complete.
As to future liability, Section I22(f)(6) provides that
in most situations, a covenant not to sue for future
liability must include a "reopener" that allows EPA to
pursue the settling PRPs concerning conditions that were
unknown at the time EPA certified that the remedial action
was complete. Agency policy also requires that settlements
include a reopener to the covenant for future liability
where new information reveals that the remedy is not
protective of human health and the environment.5
4 In Section 122(fHl) of CERCLA, Congress authorizes
EPA to issue covenants not to sue for both present liability
and future liability. In the context of covenants not to
sue involving remedial action, "EPA interprets present
liability as a responsible party's obligation to pay those
response costs already incurred by the United states related
to a site and to complete those remedial activities set
forth in the Record of Decision for that site. Future
liability refers to a responsible party's obligation to
perform any additional response activities at the site which
are necessary to protect public health and the environment."
See EPAfs "Interim Guidance on Covenants Not to Sue Under
Section I22(f) of SARA," 52 Fed. Reg. 28038, 28040 (July 27,
1987).
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5
Under Section 122(f)(6), the Agency may exclude the
"unknown conditions" reopener from the covenant not to sue
for future liability if EPA determines that "extraordinary
circumstances" exist.6 For purposes of this memorandum, the
"unknown conditions" and the "new information" reopeners
will be treated together. In determining whether
extraordinary circumstances exist, each case should be
evaluated using the various factors specified in Section
6 However, under Section 122(f)(6)(B), even if
extraordinary circumstances exist, the unknown conditions
reopener may not be waived if the settlement does not
otherwise provide reasonable assurance that public health
and the environment will be protected from any future
releases.
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6
122(f)(6)(B).7 The premium payment itself should be
considered in the analysis as -well.
If extraordinary circumstances exist, the Agency may
waive the reopeners to the covenant not to sue for future
liability in a premium payment settlement. Given the broad
scope of the factors to be evaluated, the inclusion of a
premium payment in a settlement cannot be the sole, or even
the predominant, determinant of extraordinary circumstances.
The presence of a premium should be one of several factors
which, when taken together, lead the Agency to conclude that
7 Section 122(f)(6) refers to both the factors
specified in Section I22(f)(4) and additional factors that
reiterate the guidance set forth in the Interim CERCLA
Settlement Policy. The additional factors relate to the
volume and character of the substances at the site; to risks
associated with the strength of the government's case on
liability, ability to pay, precedential value, and
inequities and aggravating considerations; and also to
public interest considerations. The factors specified in
Section 122(fM4) relate primarily to the nature of the
remedy. They include:
a. The effectiveness and reliability of the remedy, in
light of the other alternative remedies considered for the
facility concerned.
b. The nature of the risks remaining at the facility.
c. The extent to which performance standards are
included in the order or decree.
d. Th« extent to which the response action provides a
complete remedy for the facility, including a reduction in
the hazardous nature of the substances at the facility.
e. The extent to which the technology used in the
response action is demonstrated to be effective.
f. Whether the Superfund or other sources of funding
would be available for any additional remedial actions that
might eventually be necessary at the facility.
g. Whether the remedial action will be carried out, in
whole or in significant part, by the responsible parties
themselves.
What constitutes extraordinary circumstances must be
based on the facts of each case.
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7
the circumstances and terms of the settlement warrant the
granting of a covenant not to sue without reopeners.8
B. Premium? Designed to Address Cost Overruns
In a settlement in which the PRPs agree to reimburse
the government for cleanup costs associated with present
liability, the issue of how to calculate as yet uncertain
costs associated with the anticipated remedy must be
addressed. Generally, the government desires that PRPs
finance all response costs, and thus PRPs must await the
completion of the remedial action before the extent of their
present liability is established. However, if the PRPs
would prefer to firmly establish the "price tag" for present
liability before cleanup is completed, one option is to
require PRPs to provide funds believed to be sufficient to
cover projected cleanup costs, plus a premium to protect
against cost overruns. Although the government as a matter
of course seeks to avoid assuming risks associated with the
uncertainties of cost projections, the payment of.
appropriate cost overrun premiums should ensure that,
viewing the cost recovery program as a whole, the government
'is protected against those uncertainties. Settlements which
include a premium for present liability, including cost
8 in certain situations, EPA may reach settlements
where extraordinary circumstances exist without requiring _a
premium payment. For example, EPA may exclude the unknown
conditions reopener without a premium payment in a
settlement with a PRP who has invoked the protection of
Chapter 7 bankruptcy laws.
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8
overruns premiums, may be appropriate, but the traditional
reopeners would be applied to future liability in such
settlements.
Ill . AMOUNT OF THE PREMIUM PAYMENT
As noted above, premium payments may serve two purposes
— to provide funds to protect public health and the
environment in the event that additional response work win
be needed at the site or to protect against the risk that
site remediation cost overruns may occur. In evaluating the
offer, EPA must determine whether the amount of the premium
is adequate given the risks assumed. The factors specified
in Sections I22(f)(4) and 122(f)(6) of CERCLA, used to
•determine if extraordinary circumstances exist, should also
be considered in determining the amount of the premium
payment. The factors specified in Section I22(f)(4) that
relate to the effectiveness, reliability, and permanence of
the remedy are particularly important in determining the
likelihood that additional response work may be necessary
and the associated possible costs.
A. Future ^ 1 ah j 1 j t Y
Despite best efforts by the Agency or PRPs to design
and implement a satisfactory remedy, future problems may
arise at the site due to remedy failure or mistaken
assumptions about the effectiveness of the remedy, in
addition, the discovery of new information about site
conditions or new scientific determinations regarding what
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9
levels of contaminants present a risk to humans or to the
environment may make additional work necessary. One way
such new information may become available is through the
Section 121(c) five year review EPA is required to conduct
for all remedial actions at sites where hazardous substances
remain.
In determining the amount of a "future liability"
premium, two general factors should be considered: the
likelihood that future remediation will be required and the
cost of such remediation. The resulting premium could be a
percentage of the total estimated cost of the remedy.
1. The likelihood that further remediation will be
required; The need for further work may depend on the
effectiveness -and reliability of the remedy. Factors such
as whether the remedy selected has been demonstrated to be
effective under similar conditions at other sites, whether
the remedy selected involves treatment or incineration as
opposed to containment, whether the settlement agreement
includes specified performance standards, or the extent to
which the remedy provides a comprehensive solution to site
contamination, all bear on the level of the premium.
The risk that further work will be required also
depends on the extent -to which all relevant environmental
conditions have been discovered and evaluated. For example,
additional information about relevant conditions developed
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10
during the remedial design phase may enhance the Agency's
confidence in the selected remedy.
In addition, the time necessary to complete the remedy
may affect the risk of further co itamination occurring. For
example, if a long period of temporary storage will precede
disposal or treatment, the premium should be calculated so
as to protect against releases during storage.
2. The cost of further remediation; Any premium
payment must be based in part on an estimate of the cost of
conducting additional remedial work should the chosen remedy
fail to abate the hazards posed by the site. EPA's estimate
should be based on a site-specific estimate of the most
probable costs of the additional response action. Where the
estimated cost of replacing, repairing, or otherwise
supplementing the remedy is very high, the government should
either retain the right to pursue the settling PRPs for
additional work or costs, or require a premium payment
commensurate with the cost and the risk that future
remediation will be necessary.
B. Co'st Overrun Premiums
The Agency also recognizes the possibility that a
selected remedial action will cost more than originally
estimated because, for example, (1) the cost estimate was
inaccurate or (2) estimates concerning the aimr.iit or type of
material to be treated or the length of time for treatment
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11
were inaccurate.9 EPA can guard against these cost overruns
by reserving the right to see.k reimbursement for any
overruns or by requiring an up-front payment of a "cost
overruns" premium. The amount of the premium should be
based on the reliability of the Agency's cost estimate,
taking into account such factors as the length of time
needed to complete the remedy and any historical data on
instances where actual costs of site remediation exceeded
projected costs. The premium could be a percentage of the
estimated cost of the remedy based on the risk of such cost
overruns.
C. Settlement Amount
In determining the total settlement amount, the premium
payment must be added to the total response costs. This
base amount to which the .premium is added should include
past costs, indirect costs, prejudgment interest, the
estimated cost of the remedy (unless performed by PRPs),
oversight costs, operation and maintenance costs,-and
technical assistance grants. The total settlement amount
vould be the base amount plus the premium. Generally, the
settlement agreement should specify which portion of the
premium payment is allocated to present liability and which
portion to future liability.
9 If estimates concerning the amount or type of
material to be treated were inaccurate because of unknown
conditions or new information, the resulting additional
costs would be considered part of the responsible party's
future liability.
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12
IV. TIMING OF PREMIUM PAYMENT SETTLEMENTS
The Agency usually should not consider a premium
payment settlement unless it has adequate information about
the identity, waste contributions, and viability of PRPs for
the sire concerned, and about the costs of remediating site
contamination. The Agency develops information about PRPs
through PRP searches, the remedial investigation and
feasibility study (RI/FS), and information-gathering
activities under Sections 104(e) and 122(e) of CERCLA and
Section 3007 of the Resource Conservation and Recovery Act.
A Nonbinding Preliminary Allocation of Responsibility
(NEAR), authorized by Section I22(e)(3) of CERCLA, if
prepared, may also provide significant information for
evaluating a premium payment settlement.^°
Premium payment settlements should not be.pursued until
the Agency is able to determine the likely remedial action
and estimate, with a reasonable degree of confidence, the
total cost of cleaning up the site, including oversight and
operation and maintenance. The Agency usually will arrive
at this level of confidence only after the RI/FS and a
10 see. EPA's "Interim Guidelines for Preparing
Nonbinding Preliminary Allocations of Responsibility
(NEAR)," 52 Fed. Reg. 19919 (May 28, 1987). Section
122(e)(3) of CERCLA authorizes EPA, at its discretion, to
prepare an NEAR which allocates 100 percent of response
costs among PRPs in order to promote and expedite settlements,
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13
Record of Decision (ROD) have been completed.11 A premium
payment settlement could be considered earlier if the Agency
is relatively confident of its .ability to estimate future
response costs, and the premium payment amount reflects the
increased level of uncertainty.12
V, USE OF THE PREMIUM
Normally, premium payments will be made to the
Hazardous Substances Superfund. The Agency is exploring the
circumstances under which it may be appropriate for
settling PRPs to establish site-specific trust fund or
escrow accounts. Further guidance on this issue will be
provided by separate memorandum.
If the costs of the remedy exceed the recovery from
settling PRPs (including the premium), EPA will generally
seek to recover remaining costs from other PRPs. The Agency
may also approve comprehensive settlements in which certain
PRPs pay a premium to other PRPs who, in exchange; agree to
accept the responsibility of those premium-paying PRPs
regarding site liability, including any possible future
liability.
11 Timing considerations for settlements with flfi
minimis PRPs are discussed in greater detail in EPA's
"Interim Guidance on Settlements with ne Minimis Waste
Contributors Under section 122(g) of SARA," 52 Fed. Reg.
24333 (June 30, 1987).
12 Early premium payment settlements may also be
appropriate in exceptional cases, such as where bankruptcy
exists.
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14
Normally, both the base amount and the premium will
reduce the government's claim for costs associated with
Performance of the remedy. However, in settlements
involving a premium for future liability, EPA may segregate
the portion of the premium paid for future liability. In
certain cases, EPA may determine that it is appropriate to
require PRPs to set aside the premium in a site-specific
account established by the PRPs for use if the remedy fails.
If such an account is established, future liability premiums
would not reduce the amount owed by subsequent settlors or
non-settlors for present liability (i.e., the present
remedy). Rather, premiums for future liability will only
reduce subsequent settlors' or non-settlors' future
liability when and if additional cleanup is required to
protect public health or the environment. Until then, the
government will not have accepted the premium payment.13
Premium payments may be particularly useful in mixed
funding or mixed work situations. For example, EPA may
require a premium payment from PRPs to protect against cost
overruns and remedy failure for EPA's portion of the work in
a mixed funding or mixed work site.14
13 The settlement agreement also should specify how
the premium payment is to be distributed if it is not used
for remedial-activities.
14 Where a flfi minimis -settlement precedes a mixed
fundin-a agreement, any premium payment obtained from d£
minimis parties would reduce the share to be contributed by
the Fund as part of the subsequent settlement.
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15
VI. PURPOSES AND USE OF THIS MEMORANDUM
This memorandum and any internal procedures adopted for
its implementation, are intended solely as guidance for
employees of the U. S. Environmental Protection Agency.
They do not constitute rulemaking or final action by the
Agency and may not be relied upon to create a right or a
benefit, substantive or procedural, enforceable at law or in
equity, by any person. The Agency may take action at
variance with this memorandum or its internal implementing
procedures.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OSWER Directive Nunber 9835.4-2A
NOV 18 1968
MEMORANDUM
SUBJECT: Initiation of PRP-financed Remedial Design in Advance
of Consent Decree Entry
FROM: J. Winston TortJr
Assistant Administrator for
Solid Waste and Emergency Response
Thomas L. Adams, Jr. _
Assistant Administrator for
Enforcement and Compliance Monitoring
TO: Regional Administrators
This memorandum addresses a process for expediting the
initiation of response work by potentially responsible parties
(PRPs) at sites where agreements with PRPs have been reached and
where PRPs will agree to begin remedial design work promptly, but
where a consent decree has not yet been entered by the court.
For PRP-financed remedial design/ remedial action (RD/RA)
activities, the initiation of response work, including the
remedial design, has historically been dependent on the entry of
a consent decree. This usually means a delay of at least several
months between the time agreement is reached and when the consent
decree is entered and work actually begins. Delays in initiating
remedial designs and consequently remedial actions, are
inconsistent with EPA's effort to expeditiously remediate sites
and meet the statutory goal for remedial action starts. It is
in the interest of both the government and PRPs to begin work as
quickly as possible.
EPA's strategy is to encourage PRPs to agree to settlements
wherein engineering design work can proceed upon the lodging of a
consent decree by EPA, or where litigation is already pending,
upon execution of a stipulation. Where PRPs have agreed to early
initiation of a remedial design and a complaint has not been
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OSWER Directive Number 9835.4-2A
- 2 -
filed prior to the lodging of a consent decree, the proposed
consent decree should provide for conduct of the remedial design
upon lodging. The consent decree should specify the obligations
regarding design that start upon lodging. In addition, the
consent decree should clarify that, following entry of the
consent decree, these obligations concerning remedial design are
subject to enforcement (including stipulated penalties) pursu- nt
to the consent decree retroactive to lodging. Where a complaint
has been filed, alternatively, a stipulation for conduct of the
remedial design may be filed after the ROD is signed, if
negotiations are sufficiently well along that EPA is confident
that the PRPs will agree to commit to conduct the remedy. Such a
stipulation should include schedules and be enforceable by the
court.1 The stipulation should specify that the obligations
thereunder shall be obligatory until expressly superceded by any
subsequently entered consent decree. Another way which is less
preferred, but may be used to accomplish this same goal where
PRPs have agreed to early initiation of a reaedial design, is for
EPA to issue an administrative order solely for the remedial
design, leaving the remaining portions of the reaedial action for
a consent decree under Section 122 of CERCLA. In determining
whether to issue an order for a remedial design, Regions should
consider the preference for a complete remedial design/remedial
action settlement and whether it is likely that the PRPs will not
agree to conduct the remedial action.
EPA recognizes that there are limited risks in requiring the
remedial design to begin prior to the entry of a consent decree.
First, it is conceivable that the settlement will not be agreed
upon by the parties or ultimately approved by the court, which
would require additional expenditures by the PRPs to modify the
remedial design. In keeping with the public's right to review
consent decrees, the Federal Register notice prepared by DOJ
1 Under either approach, reaedial design work would not
have to be delayed pending completion of CERCLA Section 122(d)
procedure* for public coaaent of proposed consent decrees.
Consistent with established Agency policy/ a reaedial design is
considered to be a removal action, and thus outside the scope of
Section 122(d)(l), which covers proposed agreements concerning
reaedial action under Section 106. Thus, while the Agency may
voluntarily agree to subject the terms of the reaedial design
portion of a proposed Section 106 remedial action consent decree
to the procedures of Section 122 (d), there is no legal requirement
to do so.
2 A Section 106 unilateral administrative order is not
subject to Section 12*2 (d) requirements, so that remedial design
work could begin immediately.
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OSWER Directive Number 9835.4-2A
ATTACHMENT
REMEDIAL DESIGN STIPULATION AND AGREED ORDER
UNITED STATES DISTRICT COURT
DISTRICT OF ' '"_
UNITED STATES OF AMERICA,
CIVIL ACTION
PLAINTIFF NO.
v.
DEFENDANTS,
STIPULATION AND AGREED ORDER
Plaintiff, the United states of America, ("United States")
has filed an action under Sections 106 and 107 of the
Comprehensive Environmental Response, Compensation, and Liability
Act, as amended, 42 U.S.C. Section 9606, 9607 et seq., (CERCLA)
against ("Settling Parties").
In order to expedite the commencement of the remedial action
at the _^_____ site, which is the subject of this action,
the United States and the Settling Parties, stipulate as follows:
[The following provisions of the stipulation are provided as
examples^ The provisions should be developed on a site-specific
basis and reviewed for completeness by the Region. OSWER
Directive Mo. 9350.0-4A "Superfund Remedial Design and Remedial
Action Guidance" may be consulted for guidance on steps and
deliverable*, state and/or Regional Remedial Project Manager
review requirements should be included as appropriate. Language
in the stipulation should closely track that used in the workplan
attached to the Consent Decree' so as to eliminate any possibility
of inconsistency].
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OSWES. Directive Number 9835.4-2A
- 3 -
should specify that certain actions are triggered by, and start
upon, lodging a consent decree or filing a stipulation. Since
the public will have already had the opportunity to comment on
the remedy, where the remedial design is consistent with the
remedy, no additional comment is required. Comments should,
therefore, be directed toward the settlement itself and the risk
of remedial design modification is minimal. Second, Regions
should ensure that the PRP's remedial design, upon approval by
EPA, is acceptable for implementation by EPA in the event that
the PRPs do not agree to implement the remedial action.
Notwithstanding these risks, the requirement for early initiation
of remedial design work is important in the context of all RD/RA
negotiations. Language requiring these actions should go to the
PRPs as part of, or along with, the draft consent decree at the
time special notice is issued. A model stipulation is attached.
The effect of this strategy will be to reduce the time
involved prior to initiation of on-site response work in those
cases where PRPs are committed to undertaking the remedial action
and willing to begin early design. This will further the
statutory and programmatic goal to facilitate remedial action
starts. For more information please contact Brad Wright in OWPE
at FTS 382-4837 or Janice Linett in OECM-Waste at FTS 475-8173.
Attachment
cc: Directors, Waste Management Division,
Regions I, IV, V, VII, VIII
Directors, Hazardous Waste Management Division,
Regions III, VI
Director, Emergency and Remedial Response Division,
Region II
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Regional Counsels, Regions I-X
Superfund Enforcement Branch Chiefs
RCRA/dRCIA ORC Branch Chiefs
David Buente, DOJ
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OSWER Directive Number 9835.4-2A
Stipulated by:
ROGER MARZULLA [*RP II]
Acting Assistant Attorney [Address]
General
Land and Natural Resources
Division [PRP 12]
U.S. Department of Justice [Address]
Washington, D.C. 20530
THOMAS L. ADAMS, JR.
Assistant Administrator
for Enforcement and
Compliance Monitoring
U.S. Environmental Protection
Agency
Washington, D.C. 20460
[REGIONAL ADMINISTRATOR]
[Regional Address]
[ORC ATTORNEY]
It is so ordered this __....... day of mmm_^__ 19.
United States District Judge
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OSWZR Directive Number 9835,4-2A
A. 1) Within thirty (30) days of th« filing of this
stipulation the Settling Parties shall retain qualified
personnel to prepare detailed plans and specifications
for implementation of each elemenet of the selected
remedy described in the EPA Record of Decision ("ROD")
for ________________ site dated .
2) Within thirty (30) days of the filing of this
stipulation the Settling Parties shall submit to the
United States for its review and approval a detailed
schedule for the completion of the Remedial Design
including specific milestones for submissions of plans
and specifications, set forth in the Workplan, dated
_ which is attached. [The stipulation should
include a specific schedule for the preliminary 30, 60,
90, and the final 100 percent design completion
milestones as well as any intermediate submissions that
the Region deems necessary.]
3) The Settling Parties shall provide monthly reports to
the United States in accordance with the schedule
developed pursuant to paragraph A.2. above, together
with all background data, analyses and other supporting
information for review and written approval by EPA. In
the event that the United States disapproves of any
plan or portion thereof, it shall specify in writing
the reasons why it believes such plan or portion
thereof does not conform to the ROD or applicable law
or regulation including the National Oil and Hazardous
Substances Pollution Contingency Plan ("NCP"), 40
C.F.R. Part 300.
B. All plans and specifications shall be consistent with
applicable requirements contained in the ROD and in accordance
with CERCLA and the NCP.
[It is important to re-emphasize here that the above provisions
should be used as a point of departure for framing those which
will actually be included in the stipulation. Such a stipulation
is valid only for Remedial Design work and will be entered into
by the United States in eon-Junction with the lodging or
anticipated lodging of a Consent Decree for RD/RA. Actual
stipulations made should be consistent with this definition. ]
C. The Parties to this stipulation acknowledge that this
stipulation has been entered into in anticipation of settlement
and may be affected by a consent decree expected to be entered
subsequent to this filing. The Parties agree to comply with the
terms of this stipulation unless the terms of any subsequently
entered consent decree expressly supersede the terms of this
stipulation.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
DEC I 4 1988 OSWER DIR. *984i.o
O«ICE at
SOLID WASTE AND EMERGENCY «ES»ONS
MEMORANDUM
SUBJECT: Interim Strategy for Enforcement of Title III and
CERCLA 1103 Notification Requirements
FROM: Bruce M. Diamond, Director
Office of Waste Programs Enforcement
TO: Director, Waste Management Division
Regions IV, V, and VIII
Director, Emergency & Remedial Response Division
Region II
Director, Environmental Services Division
Regions I and VI
Director, Hazardous Waste Management Division
Region III
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Congressional & Intergovernmental Liaison
Region VII
PURPOSE
The purpose of .this memorandum is to provide interim
guidance concerning enforcement of 11302, 303, 304, 311, 312, and
322 of tb» Emergency Planning and Community Right-To-Know Act
(Title II! ef the Superfund Amendments and Reauthorization Act -
SARA) end the 1103 notification requirements of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) .
The interim strategy will discuss the following subjects:
o Enforcement provisions under Title III (11325 and 326), and
CERCIA 1109;
o General priorities for EPA enforcement;
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OSWER DIR. 19841.0
o Enforcement of CERCLA 1103 and Title III |304;
Relationship between CERCLA |103 and Title III §304;
The substance of §304 reports;
Identifying I103/J304 violations;
Priorities;
Enforcement response;
o Enforcement of I1302, 303, 311, and 312;
Identifying violators;
Enforcement response;
o Enforcement of 1322;
o coordination; and
o Delegations.
Central to the enforcement of Title III is the development
of working relationships with the Regional Preparedness
Coordinator, the §313 enforcement contact, the Office of Regional
Counsel, enforcement personnel from other media offices, and most
importantly, with the State Emergency Response Commissions
(SERCs) for each State in the Region. This guidance provides a
framework for implementing the enforcement program in the
Regions.
STATUTORY STRUCTURE AND ENFORCEMENT PROVISIONS
Title III establishes requirements for emergency planning at
the State and local level, and provides residents and local
governments with information concerning potential chemical
hazards present in their communities. The Act is divided into
three subtitles. Subtitle A, Emergency Planning and
Notification, establishes a framework for local emergency
planning. Subtitle B, Reporting Requirements, promotes community
awareness of hazardous chemicals present in the locality.
Subtitle C, General Provisions, relates to enforcement, trade
secret protection, and public availability of information.
The enforcement sections of Subtitle C (1325 and 1326)
authorize ZPA, State and local governments, and citizens to take
legal action against owners or operators of facilities who fail
to comply with Title III. EPA has administrative and civil
judicial authority to enforce Title III. The United States may
also seek imprisonment and fines for violations of the §304
emergency notification requirements and violations of the |322
trade secret provisions. States, local governments and citizens
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OSWER DIR. 19841.0
can take civil judicial actions to enforce against violators of
various sections of the Act.
For each requirement in Title III, the enforcement
authorities vary. In son* instances, Federal authority is
primarily administrative, in other instances it is judicial. For
some, but not all, requirements there is express authority for
State and local suits. For some, but not all, requirements there
are citizen suits. Also, 1109 of SARA amended CERCLA by
providing civil administrative penalties for violations of
specified provisions of CERCLA, including violations of fl03
(relating to failure to report releases of CERCLA hazardous
substances). Section 109 authorizes Class I and Class II
administrative and judicial penalties for violations of 1103.
Title III enforcement authorities are summarized in Table I
(next page). Appendix A provides further details on facility
reporting requirements and CERCLA |103/Title III enforcement
authorities.
GENERAL PRIORITIES FOR EPA ENFORCEMENT
The Office of Solid Waste and Emergency Response (OSWER) and
the Office of Pesticides and Toxic Substances (OPTS) share
responsibility for developing the strategy for Title III
enforcement, within OSWER, the Office of Waste Programs
Enforcement (OWPE) is responsible for developing the enforcement
strategy for 11302 and 303 (Emergency Planning), 1304 (Emergency
Notification), 1311 (Material Safety Data Sheet (MSDS)
Submissions), and 1312 (Emergency and Hazardous Inventory
Submissions). OPTS issued a compliance monitoring strategy for
1313 on July 15, 1988. Section 313 enforcement will not be
discussed in detail in this interim strategy.
With the notable exception of 1313, Congress intended that
implementation of Title ZII be mainly a State and local function.
The Title III enforcement strategy acknowledges that EPA, States,
local governments and citizens share responsibility for enforcing
Title III. Two approaches are planned for enforcing 11302-312.
First, EPA will initiate enforcement actions against owners and
operator* who fail to provide emergency notice after a release as
required under 1304. In developing these cases, EPA will
coordinate with the SERCs and Local Emergency Planning Committees
(LEPCs) to ascertain the facilities' compliance with other
sections of the Act. Second, Regional enforcement personnel will
develop enforcement contacts in all the SERCs to coordinate
activities for enforcement of violations of the planning
provisions (||302-303) and the community right-to-know reporting
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Tabi« i. TTTLZ in
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OSWER DIR. 19841.0
APPENDIX A. Summary of Requirements and Enforcement Author it ies
A. section* 302 and 303. Section 302 (c) requires the owner or
operator of a facility at which an extremely hazardous substance
(EHS) im present in an amount exceeding its threshold planning
quantity (TPQ) to notify the State Emergency Response Commission
(SERC) by May 17, 1987, that the facility is subject to Title
III. Section 303 (d) requires owner/operators of facilities
regulated under 1302 to notify the Local Emergency Planning
Committee (LEPC) of a facility representative to participate in
the planning process. This notification should have occurred no
more than 30 days after the LEPC was established (or no later
than September 17, 1987). Section 303(d)(3) requires the
facility to supply promptly information upon request by the LEPC.
Section 325 (a) authorizes the Administrator to order owners
or operators of facilities to comply with |{302 and 303. The
local U.S. district court has jurisdiction to enforce the order
and impose a penalty. Under 1326, State and local governments
can bring civil action against an owner or operator for
violations of 1302 (c); SERCs and LEPCs can bring a civil action
for violations of |303(d). For State and local suits under 1326,
the U.S. district court for the jurisdiction in which the alleged
violation occurred has authority to impose civil penalties
provided by the statute.
Penalty; Violations of 11302 and 303 subject the violator
to civil penalties of not more than $25,000 for «ach day the
violation or failure to comply with the order continues.
B. Section 304. Section 34)4 requires owners or operators of a
facility at which there has been a release of an EHS or CERCLA
hazardous substance in an amount greater than or equal to its
report able quantity (RQ) , to immediately notify the SERCs and
LEPCs of all States and districts likely to be affected. Tor
releases of EKSs or CERCLA hazardous substances without a
designated reportable quantity, a release of one pound or more
triggers the notification requirement. For releases of CERCLA
hazardous substances, notification must also be given to the
National Response Center (NRC) .
iioa. The Act requires the person in charge of a
vessel or facility to notify the NRC immediately when there is a
release of a CERCLA hazardous substance in an amount greater than
or equal to its RQ. For hazardous substances without a
designated RQ, a release of one pound or more triggers the notice
requirement .
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OSWER DIR. 19841.0
The CZRCLA 1109 and Title III {325 enforcement provimions
for emergency notification are vary similar. Both establish
administrative penalties and the authority to bring actions
judicially to assess penalties for non-notification. Both CERCLA
and Title III also provide criminal fines for knowingly failing
to provide notice or providing false or misleading information.
Section 326(a) of Title III authorizes any citizen to file a
civil action in the U.S. district court for failure to submit a
follow up report on a release required to be reported to State
and local officials under |304(c). state and local governments
may bring civil action under the citizen suit provisions for 1304
violations.1
Penalties; Under Title III §325 and CERCLA 1109, Class I
administrative penalty of not more than $25,000 per violation and
Class II administrative penalty of not more than $25,000 per
violation per day may be assessed. Penalties also may be
assessed judicially. In the case of subsequent violations,
penalties of up to $75,000 for each day a violation continues may
be assessed. Any person who knowingly fails to provide notice in
accordance with CERCLA fl03 or Title III 1304 shall, upon
conviction, be fined not more than $25,000 or imprisoned for not
more than two years, or both. For second or subsequent
convictions, the violator shall be subject to a fine of not more
than $50,000 or imprisoned for not more than five years, or both.
C. Sections 311..312 and 313. Section 311 requires the owner
or operator of any facility that is required to prepare or have
available a Material Safety Data Sheet (MSDS) for a hazardous
chemical under the Occupational Safety and Health Administration
(OSHA) Hazard Communication Standard and has a certain amount of
the chemicals onsite, to submit the MSDS (or a list of the MSDSs)
to the SERC, LEPC, and local fire department before the later of .
October 17, 1987, or three months after the owner or operator is
required to prepare or have available a MSDS under OSHA. As a
result of the OSHA expansion, facilities in the nonmanufacturing
sector are required to submit MSDSs or a list by September 24,
1988.
1 Title III 1329 defines person as "any individual,
trust, firm, joint stock company, corporation, (including a
government corporation), partnership, association, State,
municipality, commission, political subdivision of a state, or
interstate body.11 Section 326 authorizes any BtzifiD to bring a
civil action against owners and operators for their failure to
submit reports specified under 1326(a)(1).
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OSWER DIR. 19841.0
Under 1312(a), the owner or operator of any facility that is
required to prepare or have available a KSDS for hazardous
chemicals above a certain threshold level must also submit an
emergency inventory fora containing "Tier I" information
(aggregate information on the amounts and location of hazardous
chemicals at the facility). The forms are due by March 1, 1988
and must be submitted annually thereafter. Section 312(e)(l)
requires the owner or operator to provide "Tier II" information
(chemical specific) to the SERC, LEPC, and/or the fire department
with jurisdiction over the facility upon request.
Under 1313, owners or operators of certain facilities that
manufactured, processed, or otherwise used a statutorily defined
toxic chemical in certain amounts in the previous year must
submit a toxic chemical release form to EPA and the State for
each such chemical beginning July 1, 1988 and then annually
thereafter.
For each of these three sections, the Administrator can
assess civil penalties through issuance of administrative orders
or bring actions to enforce compliance and assess penalties in
the U.S. district court. State and local governments can bring
civil actions for violations of 11311 and 312 and they can bring
an action against violators of |313 through the citizen suit
provisions. Citizens have the authority to bring action against
an owner or operator for violations of all three sections. In
civil suits, the district court has the authority to enforce the
requirement and to impose any civil penalty provided for
violation of the particular requirement.
Penalties: Violation of 1311 subjects the violator to a
civil penalty of not more'than $10,000 for each such violation.
Section 312 and 313 violations subject the violator to civil
penalties of not more than $25,000 for each such violation. Each
day a violation continues constitutes a separate violation.
D. Section 322 and 323. Section 322 covers the submittal and
verification of trade secret information. For violations of this
section, the Administrator may assess a civil penalty by
administrative order or bring action to assess and collect
penalties in the U.S. district court. Criminal penalties can be
levied for persons who knowingly and willfully disclose trade
secret information.
Section 323 requires owners or operators of facilities
subject to 11311, 312, and 313 to provide information to health
professionals when requested, -subject to certain restrictions.
The Administrator can assess an administrative penalty or file
an action to assess and collect a penalty in U.S. district court.
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OSWER DIR. 19841.0
Health professionals may also bring an action against a facility
owner or operator in the U.S. district court.
p«naltl«s: Any parson who fails to furnish information
required undar |322(a)(2) or requested by the Administrator und«r
1322(d) shall b« liable for a penalty of not more than $10,000
per violation per day. For frivolous claims, the trade secret
claimant is liable for a civil penalty of $25,000 per claim. Any
person who knowingly and willfully discloses trade secret
information shall, upon conviction, be subject to a fin* of not
more than $20,000 or to imprisonment not to exceed one year, or
both. Any person who violates 1323(b) shall be subject to a
civil penalty not to exceed $10,000 per violation per day.
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OSWER DIR. 19841.0
During preparation for TSCA ||5, 6, and 8 inspections, OPTS
Regional enforcement personnel will screen the applicability of
1313 to targeted facilities. If the facility is subject to |313,
subsequent inspections will monitor compliance. OPTS enforcement
personnel will check for compliance with the remainder of the
Title III reporting requirements during these inspections and
will refer possible violations to OSWER for enforcement action.
OSWZR enforcement personnel should cross check the alleged
violation with the appropriate SERC to verify the violation and
then take appropriate enforcement action.
Title III enforcement personnel also should coordinate with
counterparts in the Regional office that handle criminal
enforcement soon after the discovery of a |103/|304 notice
violation. Significant violations should be reviewed for
possible criminal violations by the Special or Resident Agent-in-
Charge.
DELEGATIONS
Title III delegation 22-3 delegated the authority to take
administrative penalty actions to the Assistant Administrator for
OSWER (for 11302, 303, 304, 311, 312, 322, and 323) the Assistant
Administrator for OPTS (||313, 322, and 323), and to the Regional
Administrators (for all sections) on September 13, 1987. OSWER
Redelegation 22-3 (dated May 27, 1988) states that the Regional
Administrators or their delegates* must consult with the Director
OWPE or his designee before exercising their authority to take
administrative penalty actions unless such consultation is waived
by memorandum.
CERCLA delegation 14-31 delegated the authority to the
Regional Administrators under 1109 to make determinations of
violations, to assess penalties, to issue notices, orders or
complaints, to compile the administrative record upon which the
violation was found or the penalty was imposed, and to negotiate
and sign consent orders memorializing settlements under 1109
between the Agency and respondents. OSWER Redelegation 14-31
states that the Regional Administrators, or their delegatees,
aust notify the Director OWPE or his designee when exercising any
of these authorities.
USE OF THIS MEMORANDUM
This memorandum and internal office procedures adopted
pursuant to this memorandum are intended solely for the guidance
of employees of the Environmental Protection Agency. They do not
constitute rulemafcing by the Agency and may not be relied upon to
13
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OSWER DIR. 19841.0
craata a right or a banafit, «ub«tantiva or procedural
anforcaabla at law or in equity, by any parson. Tha
or if •
14
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OSWTR DIR. 19841.0
where the owner or operator•• recalcitrance justifies a civil
judicial enforcement action.
Violations of 11311 and 312 can be addressed through
administrative procedures or judicial referrals. Regional
enforcement personnel should consult with OWPE and OECM-Wa»te
before deciding to refer cases to the Department of Justice.
Again, enforcement personnel should discuss any potential
enforcement action with the SERC and LEPC involved.
ENFORCEMENT OF SECTION 322
Title III 1322 establishes the procedures for claims that
information submitted under 11303, 311, 312, and 313 is trade
secret. Claims vill be processed and reviewed by OSWER and OPTS
for completeness, sufficiency, and to make final determinations
of validity. If errors and/or omissions are found during initial
processing and review, OWPE will send the trade secret claimant a
Notice of NoncoapLlance. The Notice vill advise the claimant of
the errors or omissions that were found and require the claimant
to either amend or withdraw the claim within 30 days.
Penalties of up to $10,000/day can be assessed for failure
to comply with the Notice. If the claimant fails to comply with
the Notice, OWPE will forward the case to OECM for enforcement.
A penalty of $25,000/claim can be assessed for frivolous
claims under 1325(d). Section 325(d) authorizes the
Administrator to assess this penalty if he determines that the
trade secret claim is frivolous and the claim meets either of the
following criteria: the claim is not sufficient (i.e, the
claimant presents insufficient assertions to support a finding
that a specific chemical is a trade secret), jar that the-claim is
not a trade secret. Enforcement of frivolous claims will be done
through EPA headquarters.
COORDINATION
Violations of other statutes resulting from a release may
also be violations of the Title IZX/CERCLA notification
requirements. Title III/CERC1A 1103 enforcement personnel are
urged to coordinate with other offices (Air, Water, RCRA, TSCA,
etc.) to identify eases where violations of Title III/CZRCLA
notification could be consolidated with other enforcement
actions. Release-related violations under other statutes will
help identify facilities that have failed to comply with Title
III reporting requirements.
12
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OSWER DIR. 19841.0
Release Inventory submissions arc likely to include reports for
one or more of these EHSs. Therefore, this information would
link the facility to the li302-312 reporting requirements.
Past accidental spill data in the Emergency Release
Notification System (ERNS) may lead to the identification of
1302-303 violators. Spills of EHSs above their reportable
quantities may indicate that a facility should have notified the
State under 1302 of Title III.
As for identifying violators of 11311 and 312, cross
checking information in CUS with 11311-312 reports submitted to
States should be productive. Although CUS contains a lot of
Confidential Business Information (CBI) data, lists of facilities
and the chemicals they manufacture or import can be generated
without using the CBI data. Because the OSKA definition of
hazardous chemical is so expansive (any chemical that presents a
physical or health hazard), most if not all chemicals reported in
CUS would be reportable under H311 and 3122.
Past accidental release information also will be useful in.
identifying 11311-312 violators. Releases of hazardous chemicals
in excess of 10,000 pounds would indicate that the facility owner
or operator should have submitted MSDSs or a list of KSDSs and a
1312 inventory fora.
The enforcement person may also want to establish contacts
in the regional OSHA office to share information on potential
f|311 and 312 violators. These relationships also should be
helpful when you need interpretations of the OSKA KSDS
requirement under their Hazard Communication standard.
Finally, in the release incidents investigated thus far
SERCs and LEPCs have identified violators of If302-312 a* a
result of the release. SERCs and LEPCs will continue to be major*
sources of information for 11302-312 enforcement.
Enforcement Response
Enforcement response for violations of 11302 and 303 should
be discussed with the SERC and LZPC. If the respondent
cooperate* and supplies the requested information, sn enforcement
action may not be warranted. There may be instances however,
2 For a eoaplete definition of what constitutes a
hazardous chemical see the Department of Labor Hazard
Communication Final Rule, 29 CFR Parts 1910, 1915, 1917, 1918,
1926, and 1928. See also the Federal Register. Vol. 52, No. 163,
August 24, 1987.
11
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OSWER DIR. #9841.0
Regions should be in regular contact with SERCs to identify cases
that they are int«rest«d in having EPA pursue. EPA enforcement
personnel should establish a contact in each of th« SERCs in
their Region and coordinate with these contacts on the general
approach of the SERC to enforcement, as well as their successes,
concerns and needs for Federal enforcement assistance. At the
very least, the Regional enforcement personnel need to keep
abreast of State enforcement activities and consult with SERCs
when initiating an enforcement action.
Identifying Violators
The ideal way to figure out who has violated 1302 vould be
to compare reports submitted to the States with a master list of
everyone who has those chemicals above threshold levels.
Obviously no such list exists. However, there are some sources
of information that can be used to help identify facilities
required to report under 1302.
OWPE is currently undertaking two projects to help the
Regions, States and LEPCs identify producers and users of 1302
chemicals. The first project will provide a list, by State, of
the facilities that are producing 1302 chemicals, which chemicals
they produce, and production volumes for those chemicals. The
list was developed using the Chemical Update System (CUS) and
contains information submitted between 1984-86.
The second project is intended to provide LEPCs with a
targeting tool to identify facilities that are potentially using
§302 chemicals. Using the National Air Toxics Inventory Clearing
House (NATICH) database, OWPE is developing Standard Industrial
Classification (SIC) code/chemical crosswalks. The first
crosswalk will list all the 4-digit SIC codes with the 1302
chemicals that are typically used in them. The second crosswalk
will list all the 1302 chemicals with all the SIC codes in which
they are found. These crosswalks are intended to be generic
targeting tools that can be used in conjunction with data
available through the State Commerce Departments. The Commerce
Departments should be able to provide LEPCs with information on
facilities that are active in their counties/localities, the SIC
codes the facilities operate under and the number of employees or
other business information. Together, the Commerce data and the
chemical crosswalks should provide an indication of some of the
facilities that are potentially required to report under Title
XII.
The list of facilities that reported under 1313 can also be
used to identify facilities that are required to comply with
1302. There is a substantial overlap between the 1302 EHS list
end the 1313 toxic chemical list (See Appendix C). Some Toxic
10
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OSWER DIR. 19841.0
being developed by OECM. In the interim, Regions should follow
the administrative procedures codified at 40 CFR Part 22.
Under CERCLA {109 and Title III 1325, Class I penalties for
5103/1304 violations are assessed per violation; Class II
penalties for 1103/1304 violations art assessed p«r violation per
day. Penalties for violations of Title III §1311, 312, 313,
322(d) and 323(b) also can be assessed each day a violation
continues.
For all unreported releases, possible criminal proceedings
must be considered. Regional enforcement personnel should
coordinate with Regional Counsel and the Special or Resident
Agent in Charge (SAC or RAC) soon after discovery of the
violation to decide whether criminal proceedings are in order.
Except for criminal violations, Regional enforcement personnel
should invoice the least resource consuming enforcement option
that will adequately address the situation. Typically,
administrative procedures should be effective.
During case development, the appropriate SERC should be
contacted to determine the alleged violator's compliance with
other sections of the statute and to find out if proceedings are
already underway at the State level (under a provision of state
law) .
ENFORCEMENT OF 11302, 303, 311, AND 312
Title III 1302(c) requires the owner or operator of a
facility at which an EKS is present in an amount exceeding a
threshold planning quantity (TPQ) to notify the SERC that the
facility is subject to Title III. Section 303(d) requires
owner/operators of facilities regulated under 1302 to notify the
LEPC of a facility representative who will participate in the
planning process. EPA is authorized under Title III 1325(a) to
issue compliance orders for violations of 11302 and'303 and may
seek judicial enforcement of the order and penalties for failure
to comply with it.
Sections 311 and 312 require owners and operators of
facilities that have EHSs or hazardous chemicals in excess of
certain thresholds to submit MSDSs and chemical inventories to
the SERC, LEPC end local fire department. Under |325(c), EPA has
civil judicial and administrative penalty authority for
violations of 11311 and 312.
Because the compliance information is maintained at the
State and local level, enforcement personnel will need to
coordinate with a SERC enforcement contact to prepare each case.
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OSWER DIR. 19841.0
facility under CERCLA |104(e) with the sole purpose of enforcing
Title III.
Priorities
In developing enforcement ections for violations of
1103/1304, Regional enforcement personnel should try to target a
cross section of the regulated community. Reporting of EPA
enforcement actions in relevant publications, should help
increase awareness of Title III and provide a deterrence.
The Regions should consider the following circumstance* in
assessing the priority to be given an enforcement action against
a given violator:
o The volume and substance released;
o The nature, if any, of environmental or health threats
resulting from the release;
o The efforts made by the facility to comply with the
notification requirements;
o Aggravating or mitigating circumstances, such as the
facility's compliance with other Title III
requirements ;
o The significance of the violation to the SERC and LEPC;
and
o The effect on the overall enforcement program.
Enforcement personnel should communicate with the
appropriate SERC during the development of any notification
related enforcement action to check the violating facility's
compliance with ell other section* of Title III. If the SERC
provides evidence that the facility in question has violated
other sections of Title III, those violations should be included
in the enforcement action. •
ement Response
Under CERCLA 1109 end Title III 1325 (b), EPA can assess
administratively either Class I or Class II civil penalties. EPA
can also refer civil judicial or criminal actions to address
violations. Administrative penalties can be assessed after the
person accused of the violation has been notified and given the
opportunity for a hearing. Procedures for assessing
administrative penalties under CERCLA 1109 and Titla III 1 325 are
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OSWER DIR. 19841.0
were published in the federal Register on February 25, 1988. The
current list of EHSs and the list of deleted chemicals can be
seen in Appendix B.
Identifying il03/i304 Violators
Each Region should develop a simple information gathering
system to identify potential violations. This information
gathering effort should not be resource intensive. In many
instances, State or local agencies will be able to provide the
necessary information. EPA's information gathering efforts for
identifying I103/J304 violations should include reviewing:
o Information from SERCs and LEPCs;
o NRC reports IJor third party notifications;
o News reports, including wire and clipping services; and
o Cases being developed by other media offices for
violations that could include violations of the Title
III and CERCLA 1103 emergency notification provisions.-
Additionally, Regions should use information requests under
CERCLA 1104(e)(2)(B) to determine whether or not there has been a
violation of I1031. CERCLA |104(e)(2)(B) authorizes EPA, or any
designated representative of a State under a contract or
cooperative agreement, to require any person who has, or may
have, information relevant to a release of a CERCLA hazardous
substance, pollutant or contaminant -to furnish information to EPA
so that the Agency can determine the need for a response, choose
or take a response action and enforce the provisions of CERCLA.
CERCLA |104(e) also provides authority for EPA to access and
inspect facilities if there has been a release, a threat of a
release, or if there is a reasonable basis to believe there may
have been a release of a CERCLA hazardous substance, pollutant or
contaminant. Section 104(e) authorizes inspections to determine
the need for a response, to choose or take a response action and
to enforce the provisions of CERCLA. Information gathered during
the CERCLA Inspection, if gathered for the CERCLA purposes
mentioned above, can be used as evidence in prosecuting Title III
violation*. However, the Agency does not intend to enter a
1 Final guidance on use and enforcement of CERCLA 1104
information requests and administrative subpoenas was issued by
the Office of Enforcement and Compliance Monitoring (OECM) on
August 25, 1988. The information sought should be tailored to
CERCLA 1103.
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OSWER DIR. 19841.0
Title III |304(b) specifically indicate* to whom and what
types of information should be provided. Notice is to be given
immediately after a release by the owner or operator of a
facility to the community emergency coordinator for any affected
LEPCs and to the SERCs for all States likely to be affected by
the release. Verbal notice to the LEPC and SERC must include the
following information (to the extent it does not delay the
response):
o Chemical name or identity of any substance involved in
the release;
o Indication of whether the substance is on the |302(a)
list;
o Estimate of the quantity released;
o Time and duration of the release;
o Medium or media into which the release occurred;
o Any known or anticipated acute or chronic health risks
associated with the emergency;
o Proper precautions to take as a result of the release,
including evacuation; and
o Name and telephone number of the person to contact for
further information.
Title III |304(c) requires the owner or operator of a
facility that had a release which required immediate notice under
1304(a) to provide a written followup emergency notice setting
forth and updating the information required under subsection (b)
as coon as practicable after the release. This written report
should update the verbal notice and include edditional
information with respect to:
o Actions taken to respond to and contain the release;
o Any known or anticipated acute or chronic health risks
associated with the release; end
o Where appropriate, advice regarding medical attention
necessary for exposed individuals.
The original Title III 1302 EHS list can be found in 40 CFR
Part 355, Appendices A and B. These appendices were recently
amended (40 substances were deleted). The delisted chemicals
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OSWER DIR. 49841.0
requirements (H311-312) . EPA regional personnel will also
monitor |313 submissions for chemicals required to be reported
under 1302.
ENFORCEMENT OF CERCLA {103 AND TITLE III |304
Because the notice provisions of CERCLA and Title III
overlap, EPA will combine enforcement of CERCLA 1103 and Title
III 1304 where possible.
Relationship Between CERCLA J103 and Titla III 8304
CERCLA 1103 and Title III 1304 serve similar purposes.
CERCLA |103 requires the person in charge of a vessel or facility
to notify the National Response Center (NRC) immediately after a
release of a CERCLA hazardous substance in an amount greater than
or equal to its reportable quantity (RQ). In addition, Title III
requires the owner or operator of a facility to notify the SERC
and the LEPC for all releases that require CERCLA notification
and for releases of extremely hazardous substances (EHSs) in
amounts greater than or equal to their reportable quantities.
Title III thereby expands upon the reporting system established
under CERCLA and coordinates emergency response between Federal,
State and local governments.
Currently, 134 of the 366 Title III EHSs are also CERCLA
hazardous substances.with established reportable quantities. EPA
plans to propose a rule designating the remainder of the EHSs as
CERCLA hazardous substances in the future.
Designation of EHSs as CERCLA hazardous substances will
expand EPA's ability to use its authority under CERCLA 1104 to
access facilities, gather information, and respond consistent
with the National Contingency Plan (NCP), to releases. CERCLA
1106(a) gives EPA the authority to require any action necessary,
including the .issuance of enforcement orders, to abate any
imminent and substantial endangerment resulting from the actual
or threatened release of a CERCLA hazardous substance. Section
107 of CERCLA establishes the liability of responsible parties
for the cost of a response action taken under 1104.
Submit a nee of CERCLA J103 and Title III 1304 Reports
CZRCLA I103(a) requires the person in charge of a vessel or
facility to notify the NRC immediately when there is a release of
a designated hazardous substance in an amount greater than or
equal to its reportable quantity. For CERCLA hazardous
substances without a designated RQ, a release of one pound or
more triggers the notice requirement. The CERCLA hazardous
substances are listed in Table 302.4, 40 CFR Part 302.
-------
A. Tlw U»t tf Utterly IUZir*M Subtttnct* «nd their ThrteAold Pliming OuvitltlM
CAS ff
(Alphabetical OrOer)
Chemical new
note*
tOMrtabl*
•uentlty •
75-04-5
1752-30-J
79-04-1
107-13-1
•U-41-4
114-0*
309-00'
107-U'
107-1V
20859-73'
54-42
7I-J3-
5754-97.
300-42
42-53
U-05-1
7713-70-2
1397-94-0
04-U 4
1303 21 2
1327-53 3
77*4-42-1
2*42-71-9
Oe-50-0
90-17
90-1*
100-14
90-05
3415-21
100-U
15271-41-
$34-07.
40*4-•$•
102*4-14.
7437-07
353-42
772*-OS'
ISO*-10'
2223-93
7771-U'
0001-13
54-25
51-O
15*3-4*
704-19-
57-74
470-00'
T7M-IO.
24934-91.
9W-IV
107-07.
427-IV
47-4*
5*2-11
107-50
Ac*ton* Cyanonv«r\n
AC*ten* Thieve*icartes id*
Acr«l*ln
AerylflMtrU*
Aerytyl CM or i a*
Aiarin
AUyt Alcohol
A*t ton
AjRiton Oxelate
Airline
Aniline, 2.4,4-Trt«»thvl•
AMTU
Arsenic »entMio»
TriehlorieU
Ar»in*
AZincftM'tthyl
Atinonoe-Mthyl
Mnxat Chl«ri«*
Mruerwilne, 3-(TrHlueromthyO-
Mnxen*. 1-(ChleroMthyl)-4'Hltro-
teneartonic Acid
MnzotrieftloriM
Mnsyt Oilorid*
tansyl Cytni**
•tcyci*C2.2.1)No«t*v
IU(Oiler«Mthyl) Kttera
•Itwcarwtt
With Hethyl Ithcf (1:1)
Ckl«r1«i
CartaBft *lie1. IMltyl-. 0-(((2.4-Oiwtty(-t, 3-OI«il«l«n-2-Tl)
Xtulfl*
•••••!
10
1
1
5.000
100
1
1
1
1
100
1
100
1
1
1
100
1
5,000
1
1
1
100
5000
5000
5000
<
5,00
10
100
iM«uo>*ofm««ojomn««
1,000
1,000 710,000
500
1.000 710,000
10,000
100
1,000
100 710,000
500 710,000
1,000
500
500
500 710,000
500
100 no, ooo
500
1,000
1,000
500
500
1,000 710,000
500 710,000
100 710,000
100 710,000
500
100
100 710.300
10 710, OOC
500
500
500 710.000
TO 710,000
500 710,000
100
500
500
900 710,000
10 710.000
500 710,000
900
900
1.000
100 710,000
900
100 710,000
1.000 710.000
900 710,000
900 710,000
100 719.000
900 710,000
100 710,000
,n
10
100
1
1
1
10
1
1
1
1
1
,000
1
1
1
1
10 710,000
10,1
1.1
100 710,000
100 710.000
900
1,000
10,000
100
100
100 710.000
500 /10,000
-------
A.
CAt •
21923 23 9
10025-73-7
62207-74-5
10210-4I-1
44-46 I
54-72-4
5I34-29-3
535
4170
123
504
504
2434
675
44
1M
17702
•045
919'
10311'
192lt
Ill-
149-
42
141-
W-7
30
73-9
M-3
7»-5
24
14
II
91
41
2
9
9
a
9
3
I
9
7
44-4
74-4
73-7
44-2
M-
•4-
45
2234-07-5
20UO-75-5
115*24*4
40-51-5
2524-03-0
77-7»-1
75-7i-5
57-14-7
•*•••••
M-tS-7
1420*07-1
Tt-34-2
132-14-9
2W-04-4
5U-73-I
541-13*7
314-42-7
2771*04*3
73-20-1
2104-44-5
50*14-4
J7»*7f-J
14Z2-32 •
10140-«7-1
543-12-2
i
42-0
21-1
15-3
151-54-4
542 90 5
Tht fit of ExtrtMly Ntr.irdnu* SuMt*nr*t *nd
{AlpMto*tiCil
CfcroaiC Oilorid*
Cotalt, «2,2'
Ii»(4-Hk»ro
CoMIt Careenyl
Coiehiein*
*lannint Ou*r>tuin
ortabtt
ltitr«tyl
Crttol, e-
Criaidin*
iodt«
Cyirvtric
CyeloMii«io«
0***tor-|-«*tftyl
Oiltifor
Oichtorvw
Otttftyt
Offl••,« '.0.0' >•
ft t,K 1
• ,h 1
10
t 1
d 1.000
• 1
• 100
•, (E>- 100
id* 1.000
d* * 1
* 1
rid* I 1
« 1
n* *,l 1
) * 1
* 1
hy( • 1
* 1
• 1
Its**- d i
lpft«nytl OctcMttiyl* ^00
' 1
l«rild» • 1
100
•>*jcM*rid» t,h '
•j
• 1
.1
In *>l 1,000
,i e.t 1
H • .
,»•»•&•>« • i
irtrvKV •"
1 CMoMd«, 2-Chl*re- • J
ftfcfctoro-, Atttat* • !
t 1
1 A*MAf>hwl %AaifM '»-^
lw™O*Wvnyi /HHIinv •
irohyerin S'f'h 1
to *» I
* 5,000
, d 1
' t 1
(petrei)
500
1 710,000
100 710.000
10 710,000
10 710,000
100 710.000
500 710,000
1,000 710,000
100 710,000
1,000
1,000
500 710,000
1,000 710,000
1,000
100
100 710,000
10,000
500 710.000
500
500
100 710,000
100
10,000
1,000
1,000
100
500
500
100 710,000
100 710,000
1,000
10 710,000
500
500 710,000
500
500
100
500
1,000
10 710.000
500 710,000
10 710,000
100 710,000
500 710,000
500
10 710,000
100
500
$00 710,000
100 710,000
1 710,000
10 710,000
500 710,000
500 710,000
1,000
100 710.000
1,000 /10.000
500 710.000
500
1.000
1.000
1,000
500
10
1,000
10,000
500
10,000
-------
Hi *. Ttw CUl tf btMMly ttmrtfeui SUtatancM « mir ThrMftotd
Of«tr>
Ut t CfcMiCIl MM
• ••••••••••(••••••••MnM»(«»»*«««*»»*«>««»«*«l«Ill*l*lt»M«>l
\, 1 »«n«»ij«««
122-U-
11S-W-
4J01-SO-
77K-41-
fcamity * Umirj «ont
-------
A. Yh» Hit tf |m«Bly MSartfeu* hMttnc** M th«ir Threshold
Quemititt
Order)
CAS •
74-93
373J 23
674-97
SS4-44
78-94
502 39
75-79-*
1129-41-5
7714-34
315-18
50-07
4923-22
2743-94
505-40
13*43-39-3
23135-22
iVPlS
1910-42
54-11-5
45-30-5
7497-37-2
10102-43-9
9C-95-3
1122-40-7
10102-44-0
42-75-9
991-42-4
0
430-40-4
23135-22-0
71-7
17-4
'15-*
42-5
2074-50-2
54-3* 2
2W-00-0
12002-03-1
19*24-22-7
2570-2*-5
79-21-0
5*4-42-3
100-95-2
•7-H-7
441»-**-0
•4-00-*
5*-3*-4
***-2*-*
*2-3«-4
2097-19-0
103-«5-5
m-02-2
4104-14-7
•47-02-4
75-44-5
752-11'*
13171-21-*
7103-51-2
270MM
50712•*»••
2**5-»-7
3254-43-5
7723-14-0
10025-17-3
IOOa-13-l
Threshold
Henmni Quantity
(pound*) (p**«t)
•ethyl
•ethyl
•ethyl ftnetfitr-f Bichloride
•ethyl Thlocyenete
•ethyl Vinyl Ketone
e
a.e
•ethyltncMe-rosi li
•etoleart
•ttopyein C
Huettrd OM
nickel
Nicotine
nicotine twlfet*
Nitric Acid
Nitric Oiide
Or«««rtt««li«
(MW-U-147)
OsyBKUtfvtan
e.h
e
e
e,e
e
c,d
c
d
e
e
2,2'-Thle*l»<4,*-DlcMero>-
2,2'-Th»e»U(4-CMefe-*-itethyi)-
3-{1'B»tt»yletf»yl)-, NtttiylurtMte
7-47-4
57-*4-7
124-17-I
MMd^iif*
•ftc«0Mn»tM»lc Ac1d,»etttvl-,0-ltl»yl 0-(4-«ti«yl)e
Hw«cA«n»thie fheoyl liter •
Acid, 0,0-t1«ethyl-»-U-Hethytthle) Ithyl Isttr e.e.i
Hereto* in
Triehuride
im, Jelieylete (1:1)
100
t
1
1
1
1
1
1
10
1,000
t
1
1,000
1
1
100
1
1,000
10
1,000
1
10
1
1
1
1
1
1
1
1
1
1
100
100
1
1
100
1,000
1
1
1
1
1
1
100
1
100
10
1
1
10
1
1
too
1,000
1,000
1
1
1
1,
1,
500
300
100
10,000
10
500 710,000
500
100 710,000
500
500 710,000
500 710,000
10 710,000
10,000
500
1
100
100 710,000
,000
100
10,000
500
100
,000
100 710,000
10 710,000
100 710,000
100 710,000
500
500
100
10 710.000
10 710,000
100
100 710.000
500 710,000
500
100 710,000
500
500
500 710.000
100 710.000
100 710,000
500 710,000
500 710,000
500
,000 710,000
500 710.000
100 710.000
100 710.000
to
100 710,000
100 710.000
10
10 710.000
too
500
500
100
500
500
500
100
500
500
10
1,000
'100 710,000
100 710,000
500 /1C.200
1,
-------
The iMt If f*t»te»ly
*v«ttenctl enc" the:.- TV-ethild
3aant!t!ee
(Alphabetical Or«er>
CAS •
ei-a«-7
110-57-4
1031-47-4
24017-47-8
74-02-1
115-21-*
327- W-C
M 13 5
1558 2$-*
27137-15-5
W-SO-1
75-77-4
K4-11-3
10M-45-1
4S« S» 7
555-77-1
2001 -95 ••
1314-62-1
108-05-4
81-81-2
12«-0*-4
2SJ47-13-9
S8Z70-08-9
Che»Me»l HOMO
Toluene 2,e-DI laocyanett
T rane • 1 , 4 -0 1 eh 1 ereeut ene
Tritetiphoo
Triaiofoe
Trichlereacetyl CMerid*
Trichleroethylsi lent
Triehierenete
T r i ch 1 orepneny 1 1 U one
Triehlere(Chloro*ethyi )$i lane
Tr1ehloro(Dichloroeftenyi)Si lene
Triethoxyti lane
T r i a»thy 1 eh I orot i I one
TrinethylolproMr* NMnine
Valine«ycin
Varied io» Ventexide
Vinyt Actttta •onemer
warfarin
tMrfarin f«diu*
lylylene Oiehieride
Zirc, Oichlere<4,4-OiMtnyl-5((((Methylo*iine)CireenyO
leeortoble
•otet (Dou«a)
100
1
1
.h
,k
,h
,h 1
1
1
,h 1
.t 1
1,000
.1 5,000
100
.h 1
1
1
•lanrinf Ouantity
(eeunda)
100
500
500 /10.000
500
500
500
500
500
100
500
500
1,000
100 /10.000
500 ,'10,000
500 /10.000
100
1.000 /10.000
100 /10.000
1,000
500 /10.000
too /io,ooo
100 710,000
100 /lO.OOO
13U-U-7 Zinc
100
509
• Only t*\» ttctutery or final 10 it •*«*. for wrt lnfor»iti«n, ••• «OCNt T«tl« 302.4
it.
b Thit wttrfal U • fMctiv* Mild. Th« T*« dots net «tfault to 10,000
for rwn-pewatr, non>wlttn, nen-tetutloo for*.
e Tht c*tcwlit*4 T»0 eh«nf«d ift«r ttetmieil-rtv<«« •* d*«er(i).
f -Tht statutory 1 pevr« rapcrtafctt quantity for avthyt ia*ey*rtatt My M adjuataa in a fvturt fiit«
g ••« efiaaieait added that «ara net part «f th« arffinal Jilt of 402 tubataneM.
n levi'Md TN eaaac on MM or rt-evaluated tuietty data.
j TN (a rtviaed to
-------
U A. Tlw Hit tf Utrotly MurdM Substance* tori th«tr Threshold
Ouvnlttw
»•§• A-5
Ord«r)
CAS f
CXMlCll NOT
Thrwtold
fcOTtlty • FlvrMr* Quantity
MCtM (OMdl)
110
5281
Z3S05
10124
151
506
2631
106
57
107
542
70
109
75
75
2275
129
140
504
1124'
53558
14167
107'
T7U'
TTVV
563
3037'
7631-
7714-
26628
124-
•143-
62
131-
13410-
10102-
10102-
900'
57-
60
36*9
89-
13-0
41-1
50 2
50-8
61-6
37-0
96-7
57-8
12-0
76-7
69-9
61-5
56-9
55 8
18-5
00-0
00
23-3
41-7
72-7
89-2
46-5
22
65
33
74
52
01-0
95-8
24-S
7446-09-5
7783-60-0
7446-11-9
76*4-93-9
77-11••
13494-80-9
7713-00-4
107-49-3
13071-7?-»
71-00-1
597-64-i
75-74-1
509-14-1
10031-Sf-1
6533 739
2757-18-8
7444-18-6
2231-57-4
39196-18-4
297-97-2
108-98-5
70-19-6
5344-82-1
614-78-8
7550-45-0
5I4-84-9
»tri«ifo«-lthyl
*Ota**iUi Ar»anitt
•otas*it«
Brorid*
»ropyl«w Ox id*
»retheat*
^yridirw, 4-Anine
44-8 tertn
«u§ Aerid»
«rec*(lorid«
butyl )0ittnoxywthyl •
(H3))
t
M(OI))
tata
fflptMCWtt
ytfipfMnyl-
Bt9
•f«y»pyt Ottyt
rid*
uar14i
•M
rlV
Blf>41
t\9
«w
•
1
to
tof tctiinyl)*
hi 1 ^m 1 ^^
U^flVt
. . • i •• •>•
1
i
i
1,000
10
1
h 1
1
1
10
1.000
1 1
1
100
1
1
5.000
1
1,000
1
.h 1
1
.»> 1
10
1
1
1
1,000
1,000
1,000
1
10
10
1
1
100
1
.8 1
10
1
100
1
.1 1
1
»,• 1
1,000
«,*,*» 1
t 1
9,k 1
10
«,h 1
c,d 10
e,t 1
«',«.l 1
10
k 100
c,h 100
•> 101
«,t,h 1
100
t 1
100
100
100
100
100
• 1
• 1
luO
1.000
100 710,000
1,000
500 710.000
100
500
500 710,000
10
500
500
1,000
100 710.000
500
10,000
10,000
100 710,000
1,000 710,000
500
500 710,000
500 710,000
100 710,000
500 710,000
10
1,000 710,000
500
1,000 710,000
1,000
1,000 710,000
500 no, ooo
500
100 710,000
100
10 710,000
100 710,000
100 710,000
100 710,000
500 710,000
500 710,000
100 710,000
100 710,000
500
500
500
100
100
1,000
10
500 710,000
100
100
100
ICO
100
100
500
100 710,000
100 710,000
100 710,000
100 710,000
100 710,000
i,m no. ooo
100 710,000
SOD
500
100 710,000
100 710,000
500 /10.000
100
500
2,4-OUtocyvMt*
-------
APPENDIX B. LIST OF EXTREMELY HAZARDOUS SUBSTANCES
U.S. Environmental Protection Agancy
THE EMERGENCY PLANNING
and
COMMUNITY RIGHT-TO-KNOW
ACT of 1986
List of Extremely
Hazardous Substances
40CFR355
(Sections 302 and 304)
March 1,1988
-------
The attached lists represent the complete list of Section
302 Extremely Hazardous Substances of the Emergency Planning and
Community Right to Know Act (Title III). The substances are
.listed in alphabetical order by chemical name and numerical orier
Abstract Number (CAS No.). This l-i$t «as publisnea
A and B to the final rule (40 CFR 353) In the
ister on April 22, 1987, (FR 13376) and revised on
1987 (FR 48072) and Feb-uary 25, 1988 (FR 5574) to
substances. The list of these forty substances Is
by Chemcial
as Appendix
Federal Rtg
December 17,
delete forty
also provided for your information.
-------
TITLE III - EXTREmlLY HAZARDOUS SUBSTANCES
CHEMICALS DELETED FROM LIST
(As of Dacamfrtr 17, J987 and Fabruary 25, 1988)
(Alphabatlcal Listing)
CAS Ho.
16919-58-7
1405-87-4
98-09-9
106-99-0
109-19-3
111-34-2
2244-16-8
107-20-0
7440-48-4
117-52-2
287-92-3
633-03-4
84-74-2
6023-53-6
93-05-0
131-H-3
tM4-0
NAME
Ammonium CMorop latlnata
Bacitracin
Banzanasulfonyl CM or I da
Butadiana
Butyl Isovalarata
Butyl Vinyl Ethar
Carvona
Chioroacataidahyda
Cobalt
Coumafuryl
Cylopantana
C.I. Basic Graan .
DIbutyl Phthaieta
Dichlorobanzeikonlum CM or
0 i tthy I -p-Phany I anad i am I na
Dlmathyl Phthalata
Oloctyl Phthalata
Di oxo I ana
Ethylmarcur Ic Phoiphata
Haxachloronaphthalana
Indomathacln
irldium Tatrachlorlda
Mas I ty I ana
Nlckal
Orotlc Acid
Osmium Tatroxlda
P«ntachloro«th«na
Pantachlorophanol
2235-25-8
1335-67-1
53-66-1
10025-97-5
108-67-8
7440-02-0*
65-86-1
20816-12-0
76-01-7
87-86-5
84-80-0
10025-65-7 Plitlneus Chlorlda
13454-96-1 PlatlB^ai Tatrachlorlda
1351-17-5 Propyl«n« Olycol, Ally! Ethar
95-63-6 PsaudeeuMM
10049^07-7 Rhodium Trichloride
1 28-56-3 Sodium Anthr«qulnona-1-
Sulfonata
1314-32-5 Thai lie Ox I da
21564-17-0 Thlocyanlc Acid, 2-{8»n«o-
t-MazolyltMo) Math y I Estar
640-15-3 Thlomaton
5 2-68-6 Tr 1 c h I orophon
3048-64-4 Viny Inorbornana
List 6y CAS No.)
CAS No. NAME
52-68-6 TrIchIorophon
53-86-? Indomathacin
65-86-1 Orotlc Acid
76-01-7 Pantachloroathant
84-74-2 01 butyl Phthalata
84-80-0 PhyIioquInona
87-86-5 Pantachlorophanol
93-05-0 DIathyI-p-PhanyIanad1 am Ina
95-63-6 Psaudocumana
98-09-9 Banzanasulfonyl Chlorlda
106-99-0 Butad Iana
107-20-0 Chloroacataldahyda
108-67-8 Ma«ltylana
109-19-3 Butyl liovalarata
111-34-2 Butyl Vinyl Ethar
117-52-2 Counafuryl
117-64-0 Dloctyl Phthalata
128-56-3 Sodium Anthraqulnona-1
SuIfonata
131-11-3 DImathy I Phthalata
287-92-3 Cylopantan*
633-03-4 C.I. Basic Graan 1
640-15-3 Thlomaton
646-06-0 DIoxoIana
1314-32-5 Thai Me Ox Ida
1331-17-5 Propylana Glycol, Allyl Ethar
1335-87-1 Haxachloronaphthaiana
1405-87-4 Bacitracin
2235-25-8 Ethylmarcurie Phosphata
2244-16-8 Carvona
3048-64-4 VInyInorbornana
7440-02-0* Nlckal
7440-48-4 Cobalt
8023-53-6 Dlehlorobanzalkonlum Chlorida
10025-65-7 PI at I nous Chlorlda
10025-97-5 Irldlum Tatrachlorlda
10049-07-7 Rhodium TrIChlorlda
13454-96-1 Platinum Tatrachlorlda
16919-58-7 Ammonium Chloroplatlnata
20816-12-0 Osmium Tatroxlda
2J564-17-0 Thlocyanlc Acid, 2-
-------
U I. TM Ktt of t»tre»*ly mtrdout fcfcttoncn ma thtir Threshold p[*nntn« OuentltlM
(CAI M«j**r Order)
CAS *
•em
teportoblt Thretneld
Ovaritity • »lenntn« Ouentity
22224-02
23135-22
23422 53
23505-41
24017-47
240J4-01.
2M1»-73
26*21 22
27137-15'
28347-13'
287T2-56-7
30674-80-7
rattwwt* Mydroehlerid*
5355e 25 1
5B270-M-9
62207-To-5
e
d
o
f
4
h
j
k
t
Triaiofet
Chloroaphoa
, 0-<«2,4-Oiaethyl-1, 3-Dithlolen-2-Tl)
lylyiene
•roa»fliolone
fcethaeryloyloxyethyl Itocytn«tt
100
,h
0-tthyl Itttr
riai
Zirc,
, Metnyl •,t-(2-(li*(1-MthyltthyUM*ine)tthyl>t
1,000
1
1
1
1
100
1
1
1
oMthylidyne))
300
300
$00 710,000
500 /10,000
$00
10 /10.000
100 710,000
$00 /10.COO
1.000
$00
300
100 /10.000
500
500
100 710,000
100 710,000
100
100 710,000
100
100 /10.000
100 710.000
100 710,000
li»(»-f luoropr,*r*ltto> U2->•»,*',0,0') •
Only the ttatutory or final 10 it the*n. for wort Information, tot 40CH Tablt 102.4
Thit aetoriel it a reeetive tolid. The TN doet not default to 10,000 poundt
for non-powder, non-eel ten, non-aolJtfen for*.
The calculated TOO chanted after technical review aa deeeriboti in the technical tupoort docuaent.
Indicate* that the N U aubjoct to cnenoe when the atteoaaent of
careinofenicity end/or other felicity U completed.
Statutory roportoble ojuontity for purpotet-of notification under UIA tect
The ttatutory 1 pound reportable quentity for aethyl ioocyonate aey fte edjuated in a future
•ee choaicolt added that «ere not part of the eri|inal litt of 402 tubttercet.
koviood TK bated on now or re-ev*iueted te*Ce(ty data.
TPO it revited to Itt calculated value end doet not ehenee due to technical revfe* at in propeoed rule
The T*fl «ot roviaod after propottl duo to calculation error.
Cheatcelt on the oriotnal (lot that do not aeet the tosicity criteria but boceutt of their hie*
velua* and rocefnijed tauiicity ore eentiderod cheaicalt of concern ("Other
-------
1i I. The List «f UtrtMly Hazardous Substtnctt and thtlr Threshold »lam
-------
A. Tha k<«t of latroBoly Katardoua luMtencet and thair TKraohald Mennlnj; •uantltlee
(Alaftokatical Ordar)
CAS t
••••
•1-04-7
110-57-a
10J1-47-4
7e-02-l
115-21-*
527-M
•4-13
1551-25
•JO
•24-1V
S5S
2001
13l4-e7-1
1M-05-4
2O47.1J-*
SM70-OI-*
•avartobla
Ouontity •
Toluene 2,0-Ollaocyonata
Trana-1,4-etehlarabutana
Triaalphoe
Triaxofao
Trlchleroocityl CM or Ida
TrlehloroCer*eriyl)
.h
.h
,h
,t
,1
100
1
1
1314-K-7 line
1
1
1,000
5,000
100
1
1
1
100
Thraahald
100
SOO
SOO
SOO
SOO
SOO
SOO
SOO
100
SOO
SOO
1,000
100
500
SOO
100
1,000
100
1,000
SOO
100
100
100
SOO
/10.000
/10.000
/I0,000
/10.000
/10.000
/10.000
/10.000
710,000
/10.000
/10.000.
Only tM muttery »r final N it shown. r«r nor* infar«Btian. Mt 4QCFI Taet* 502.4
b Thit aBtarfal It a rtoctivt ulid. Tha TK doM net dafault t« 10,000
for non-powdar, nen-a»ltan, non-tolution font.
c Tha ealeutatad T*Q chonoad aftar tacnnieal roviav a» daocribod in tha
d Indicated that tha M U tubjact ta ehane* whon tha aaiaiaaant of patontial
carclnatoniclty and/or ether tecictty la cojDletad.
e Statwtary raportabla ojjontity for purpoiai af notification uwJar tAIA aect 304(a)(2).
f Tha ctatutery 1 paMVj reportacla «uentity for nethyl iMcyonata a»y oa adjuated in e future ruloMktno. action.
t How chosicala added that Mere not pert af tha erlfinel liat of 402 tuoBtaneaa.
h leviaed T»« katad en now or ra-avaluatao twicity deta.
j TO ia revlaod to It* calculated value and doea net cHanee due to technical review ae In piepind rule.
k The TH «H revteod •rter prepaiil due to calculation error.
I ChoBlcala an tha ori|indl HIT that do net e»et tha temlelty criteria out kocouae of their hi|n
yeluia and rocoenlsod tMlelry are comidared cnoaicela of cencem ("Other
-------
Is I. TM lilt af fitrwtlr »«»rdoui tuMtme»« and thair Thra«*»old 'lanrina
»*•• 1-1
- •' 1
rwte < 1
t* 9 1
•Ta t 1
*,e 1
oiio^iA e 1
S j «•
. 1
ride • f
•nlc Otthlerfde ••• |
ceernne ^» ^
j^^^i^» e 1
fy1" e 1
. a k ^
^C***" e'.h 1
' d>
»^^e^^k^ A^a^e^^h 1 9> A 4«" *
^^^FW FrWB^n 1 kV * .
tw^f ipnvvfi* ^
Hyl * ^
«i 1
e 1
e t
• •••••••••VW^VM
100
100 no, ooo
500
100 710,000
10
500
1.000
1,000
500 /10.000
500 /10.000
1 710,000
500
1.000
10
10
500 /10.000
100 710.000
500
300 710,000
500 710,000
500
500
500 710.000
1,000 710,000
500
500 710.000
10 710,000
10 710,000
100 710,000
500
10
100 710.000
1,000
100
10,000
100
500
10,000
1,000
1,000
1,000 710,000
900
900
•100
900 710,000
900
100
900
1,000
100 710.000
900 710,000
100 710,000
900 710,000
100
100
•00
10 710,000
900
900
900
100
100 710,000
900 710,000
900
100
900
100 710.000
500
500 710,000
-------
<* I. TIM Lilt •* Ixtrwty NtXirOM Sutotvwtt tnd th«ir Thr«h«l4
(CAS »J»«r Order)
*«nt1t
107-U-J tarin
!07-*»-3 W»
104-05-4 Vtrtyt Aectttt
106-23-4 iMpropyt CKK
10«-«S-2
101-M-S
109-41-S
IOf-77-J
ttO-OC-f
110-S7-4
110-0»-4
111-44.4
111-4»-J
11S-2V*
115-2*-4
11S-l»-T
ni-w-2
114-04-J
11»-»-0
122-14-S
m-ji-»
12*-IT-«
12*-W-7
12f-00-0
m-04-*
1J1-S2-2
140-29-4
14C-74-1
U1-M-2
UJ-JJ-t
144-49-0
U9-74-4
151-11-2
15l-$fl-«
1S1-S4-4
Altt
tantyl Cyvii*
>Mit« CyvitO*
Oil til
100
• 1
1 »
100
•Trlwthyl- • ,
1,000
U»er«n«tt 100
0 1,000
hiebft(4,4-OieMere)- t 1
Aeid • ,
* a i
•lliltr* t.h 1
'•(TrifluoroMtftyl)- * 1
» d 5,000
1 1,000
myltn«4i«iit'n* ( ^
l»ro«tt«Yi)-*-«l>tre- t 1
* d 100
I, 3>-Oichlere(tfi«nyt (ittr t 1
1 100
" d.t 1,000
»dt , ,
1
t 1
t 1
10
d.l 100
* $.000
;yanoftyerin «,h 1
100
•tftyl lth«r e.d 1
•,h 1
10
•*"*•»• d.l $,000
ircfonatt t 1
» «,l 1
1,000
100
'•*wt* • 1
1,000
100
ilwataitm • 1
t 1
Ittor 4 1
•,l 1
i»llm 0,11 1
• 1
1
»,h 1
c 1
flpyr»*tyl 0
-------
t I. Th«
Iitrwty
*nd thtir
1-5
(CAS
Order)
CAS •
••••••••••
7444-11-f
7444-11-4
74«7-»4-7
7550-45-0
75M-47
7*31-09
7*37-07-2
7*47-01-0
744A-39-3
74*4-41-7
7**4-f3-9
7*97-37-2
771»-i2-2
77J2.04-1
7723-14-0
7T24-95-*
7778-44-1
77U-41-4
7712-50-5
7713-00-t
7713-0*-4
7713-07-*
7713-W-O
7713-70-2
7713-00-4
7714-34-1
mil
^FS-7
-7791-12-0
7791-23-3
7003-51-2
•001-35-2
OOA5-40-3
10025-73-7
100»-»7-3
1004*-13-1
10028-15-4
10031-59-1
10102-11-1
'10102-20-2
10102-43-9
10102-tt-O
Ch»*ieil *
iiotn
• »t«wln«
••••«••«•«•*••
10140-«7>1
1M10-40-1
•ft*4
•34-5
•04-9
10*74-95-4
12002-03-t
12100-13-3
13071'79-9
ism-ti-4
13*10-01-0
13U3-39-3
13**3-*0-*
13*94-00-9
141*7-11-1
1S2T1-41-T
^TO-57-7
192I7-4S-7
19*24-22-7
J-S
TrUz S2X)
•
t
b.t
•
«.l
•.t
b.h
*.l
d
k
•
4
c,»
*
ount
TtolKia Sulf»tt
S*4i« toltnit*
S«4l0i TtUurlt*
•
-------
U t. Th«
(CAS
CAS •
991-42-4
99«-30-1
W9-I1-5
1031-47-4
10*6-45-1
1122-40-7
1124-33-0
1129-41-5
1303-21-2
1304-19-0
1SU-54-3
1314-42-1
1J14-44-7
••••••••••
U27 53-3
1397-94-0
U20-07-1
1558 25 4
1543-4* 2
1*00-27-7
1422-32 8
1*42-54-2
1752-30-3
1910-42-5
1982-47-4
2001-95-8
2032-45-7
2074-50-2
2097-19-0
2104-44-5
2223-93 0
2231-57-4
2234-07-5
2275-14-5
2497-07-4
2524-03-0
2540-42-1
2570-24-5
2547-90-4
2431-37-0
2434-24-2
2445-30-7
2703-13-1
2757.14-4
2743-94-4
2774-04-1
ioj7-n-r
3254-43 5
35*9-57-1
3415-21-2
3**9-24-5
3*91-33-4
3734-97-2
373S-O-7
4044-45-9
4094-71-9
4104-14-7
417»-»-3
4301-SO-2
4414-44-0
4435-11-4
5241-13-0
583*-2« 3
4533-73-9
4923-22 4
7444-09-5
Triwthyltin
Zinc
Artcneu* Osidt
Anriirrcin A
Dinoitrb
CMoroxur«n
Vtl inemytii
Mtihiocarfi
0>y«
tntotMw
t
Mi»tul**c*
rant
»*ritt
dt
Ithtr
on
wa«fierocfileri«otfi 0-«*«nyl tattf «
title Acltf.Mtftyl'rO-lthyt 0-(4-(Nttftyttft>
)
T™~
ll^te
"l^
Z'-TM^f f4-Ctiler -4>iwtriyl)-
tfwdiwint, M.N'-Oibutyl-
(2-CMoropMnyl)-
lyl
kroenttt
no*
• i AA
•em (oounat)
,h
1
1
5000
1
,t 1
1,000
100
,h 5000
,t 1
1
1
1
10
1
1
1
1
1
1
.« 1
10
1
,h 1
1
,t 1
1
1
1
h 1
1
1
1
,t,i 1
.K 1
1
1
1 1
1 1
t,«,h . 1
h 1,000
1
1
1
1
• 1
1
1
1
1
1
,« t
too
1
1
1
100
,R 10C
1
^ i
lanrini Agtniity
(9XT01)
100 710.000
500
100 710,000
500 710,000
500 710.000
500
500 710,000
100 710.000
100 710,000
100 710,000
10
100 710,000
500
100 710,000
1,000 710,000
500 /1C,!00
500
100
10 /10.000
500 710, 000
500
100 710,000
1,000 710.000
10 710.000
500 710,000
1,000 710.000
500 710,000
10 710,000
100 710,300
100 710,000
1,000 710,000
1,000 710,000
1,000
100 710.000
500
500
100
100 710,000
500
SOO 710.000
1.000
100 710,000
SOO
-100
100 710.000
10,000
500 710.000
1,000
SOO
500
500 710,000
SOO
100 710.000
100 710,000
SOO
100 710,000
100 710,000
100
100 710,000
1.000
100 710,000
100 710.000
SOO
100 710. DC
IOC 71G.3:
soc 710.3:
ICO 71C.-3.'
10 /ic.o:
50C
-------
OSWZR DIR. 19841.0
APPENDIX C.
CAS i
Section 302 Chemicale on Section
CHEMICAL NAME
313 List
TPO
50-00-0
51-75-2
56-38-2
57-14-7
57-57-8
57-74-9
58-89-9
60-34-4
62-53-3
62-73-7
62-75-9
67-66-3
74-83-9
74-90-8
75-15-0
75-21-8
75-44-5
7.r>-55-8
75-56-9
77-47-4
77-78-1
79-06-1
79-11-8
79-21-0
91-08-7
95-48-7
98-07-7
98-87-3
98-95-3
100-44-7
106-89-8
107-02-8
107-13-1
107-30-2
108-05-4
108-95-2
111-44-4
123-31-f
151-56-4
302-01-2
309-00-2
542-88-1
584-84-9
(continued)
Formaldehyde
Mechlorethamine
Parathion
D imethy Ihydr a z in*
Propiolactone, beta-
Chlordana
Lindane
Methylhydrazine
Aniline
Dichlorvos
Nitrosodijnethylamine
Chloroform
Mathyl bromide
Hydrocyanic acid
Carbon dieulfide
Ethylene oxide
Phosgene
Propyleneimine
Propylene oxide
Hexachlorocyclopentadiene
Dimethyl eulfate
AcrylajBide
Chloroacetic acid
Peracetic acid
Toluene, 2,6,-diiaocyanate
Creeol, o-
Benzotrichloride
Benzal chloride
Nitrobenzene
Benzyl chloride
Epichlorohydrin
Acrolein
Acrylonitrile
Cblorosethyl methyl ether
Vinyl acetate monomer
Pnenol
Oichloroethyl ether
Hydroquinone
Ethyleneimine
Hydrazine
Aldrin
Chloroaethyl ether
Toluene 2,4,-diieocyanate
500
10
100
1,000
500
1,000
1,000/10,000
500
1,000
1,000
1,000
10,000
1,000
100
10,000
1,000
10
10,000
10,000
100
500
1,000/10,000
100/10,000
500
100
1,000/10,000
100
500
10,000
500
1,000
500
10,000
100
1,000
500/10,000
10,000
500/10,000
500
1,000
500/10,000
100
500
-------
OSWER DIR. 19841.0
APPENDIX C. (continued)
I CHEMICAL NAME TPQ
505-60-2 Mustard gas 500
534-52-1 Dinitrocr«sol 10/10,000
624-83-9 Methyl isocyanat* 500
1464-53-5 Di«poxybutan« 500
7550-45-0 Titanium t«trachlorid« 100
7647-01-0 Hydrochloric acid (gas only) 500
7664-39-3 Hydrog«n flourida 100
7664-41-7 Ammonia 500
7664-93-9 Sulfuric acid 1,000
7697-37-2 Nitric acid 1,000
7723-14-0 Phosphorus 100
7782-50-5 Chlorina 100
8001-35-2 Toxaph«n« (Camphachlor) 500/10,000
-------
SEP I 3 ,967
DELEGATIONS HViUAL 1200 TN
TOE CCMFREHESSIVE EN\raCWEOTAL. RESPONSE,
COMPENSATION, AND LIABILITY ACT (CERQA)
14-6. Inspections, Sampling/ Information Gathering, Subpoenas,
and Entry for Response
1- AUTHORITY. Pursuant to the Comprehensive Environmental Response, Compen-
sation and Liability Act as amended (CERCLA), to enter any vessel, facility,
establishment, place, property or location for the purposes of inspections,
sampling, information gathering and response actions; to carry out inspections,
sampling, and information gathering; to require the production of information
and documents; to issue subpoenas; to issue compliance orders for production
of information and documents; to issue compliance orders for entry and inspection;
to obtain and execute warrants to support this authority; and to designate
representatives of the Administrator to carry out inspections, sampling, infor-
mation gathering, and response actions.
2. TO WHOM DPT rr^TED. Assistant Administrator for Solid Waste and Emergency
Response, Assistant Administrator for Enforcement and Compliance Monitoring,
and Regional Administrators.
3. LIMITATIONS.
a. Regional Administrators and the Assistant Administrator for Solid Waste
and Emergency Response or their delegatees must consult with the Assistant
Administrator for Enforcement and Compliance Monitoring, or his/her designee,
prior to issuing compliance orders regarding information gathering or compliance
orders for entry and inspection, or issuing subpoenas, unless or until such
consultation authority is waived by memorandum.
b. The Assistant Administrator for Solid Waste and Emergency Response or
his/her delegatee must consult with the Assistant Administrator for Enforcement
and Compliance Monitoring or" his/her designee prior to obtaining warrants.
c. The Assistant Administrator for Solid Waste and Emergency Response and
the Assistant Mainistrator for Enforcement and Compliance Monitoring or their
delegatees must consult with the appropriate Regional Administrator or his/her
designee prior to exercising these authorities.
4. KHMJHJl!!l'mK ALTIHJKI'1'1 '.' This authority way br redeleyaLsd;
5. ADDITIONAL REFERENCES.
a. Sections 104(e), 109(a), 109(b) and 122(e) of CHCLA-
b. National Contingency Plan, 40 CFR 300.
-------
DELEGATIONS MANUAL
COMPREHENSIVE EKyiROMMEKTAL RESPONSE, OOMPENSATICN,
AND LIABILITY ACT
14-12. Civil Judicial Enforcement Actions
1. ALTTHORITY. To request the Attorney General to appear and represent
the Agency irTany civil enforcement action and to intervene in any civil
anforcement action instituted under the Comprehensive Environmental Response,
QDitpensation, and Liability Art, as amended (CERQA); to request the Attorney
General to decline to prosecute a previously referred civil enforcement
action? and to request the Attorney General to initiate an appeal of a
decision in a civil enforcement action under CERCLA and represent the
Agency in such an appeal.
2. TO WH3M DnfXiATED. Regional Administrators, Assistant Administrator
for Deforcement and Qonpliance Monitoring, and the General Counsel.
3. LIMITATIONS.
a. The Regional Administrators may exercise this authority only in
regard to requesting that the Attorney General appear and represent the
Agency in civil actions under'CERCLA, requesting that the Attorney General
intervene in civil actions under CERCLA, exclusive of appeals, and requesting
that the Attorney General decline to prosecute a previously referred, civil
actj.cn.
b. The Regional Administrators may exercise this authority only in
cases specified in and in accordance with written agreements between authorized
representatives of the Agency and the Department of Justice.
c. The Assistant Administrator for Enforcement and Compliance Monitoring
must notify the Assistant Administrator for Solid Waste and Emergency
Response and the appropriate Regional Administrator prior to initiating or
intervening in « civil action undtr CERCIA, requesting that the Attorney
General decline; to prosecute a previously referred civil enforcement action
under -CERCIA, jcequeating that the Attorney General initiate or intervene
in a civil action instituted under CERCXA, or formally initiating an appeal.
-------
DELEGATIONS ^RNUAL
COMPREHENSIVE ENVIRONMENTAL RESPONSE. COMPENSATION,
AND LIABILITY ACT
14-12. Civil Judicial Enforcement Actions (cont'd.)
d. The General Counsel may only exercise this authority with regard
to appeals.
e. Any exercise of appeal authority will be be exercised by the
General Counsel and the Assistant Administrator for Enforcement and Compliance
Monitoring.
f. The Regional Administrators must notify the Assistant Administrator
for Solid Waste and Emergency Response and the Assistant Administrator for
Enforcement and Compliance Monitoring prior to the time they refer cases
to the Department of Justice.
4. PPTffT-.mA.TICK AUTHORITY. The Assistant Administrator for Enforcement
and Compliance Monitoring and the General Counsel may redelegate this
authority to the Division Director level. Regional Administrators may
redelegate this authority to the Regional Counsel.
5. ADDITIONAL ROrlLHSNCES.
a. Memorandum of Understanding between the Agency and the Department
of Justice, June 1977.
b. CERCLA Sections 104, 106, 107, 109, 122.
c. See the Chapter 14 delegation entitled "Emergency TRO's"
for Regional Administrators' authority to make direct referrals of requests
for emergency CERCLA Temporary Restraining Orders.
-------
DELEGATIONS MANUAL
TOE COMPREHENSIVE ENVTRCNMEOTAL RESPONSE,
CCMPEKSATICN, AND LIABILITY ACT (CERCLA)
14-13-A. Criminal Enforcement Action*
1. AinHDRITY. Pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended (CERCXA), to cause criminal
matters to be referred to the Department of Justice for assistance in field
investigation, for initiation of a grand jury investigation, or for
prosecution under CERCXA; to authorize payment of awards up to $10,OX to
any individual who provides information leading to the arrest and conviction
of any person for a violation subject to a criminal penalty under CERCLA.
.2. TO WH3M DELEGATED. The Assistant Administrator for Enforcement and
Compliance Monitoring.
3. LIMITATIONS. The amount of CERCLA funds to be made available each
*scal year for the payment of the awards as authorized by this delegation
limited to an amount agreed upon annually by the Assistant Administrator
r Enforcement and Compliance Monitoring and the Assistant Administrator for
Solid Waste and Emergency Response.
4. pETPTJYtATicN AITnPRTIY. The authority to refer oases may be redelegated.
The authority to authorize payment of awards may be redelegated to the
Senior Enforcement Counsel for Criminal Enforcement.
5. ADDITIONAL HmKhNOS. Sections 103(b)(3), 103(c), 103(d), and 109(d)
of CERCLA.
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DELEGATIONS MANUAL
TOE COMPREHENSIVE ENVIRQMENrAL RESPONSE.
"OCMPENSATICN. AND LIABILITY ACT (CERCLA)
14-1 3-B. Concurrence in Settl*«"»nt of Civil Judicial Actions
1. AUTHORITY. To exercise the Agency's concurrence in the settlement of
civil judicial enforcement actions under the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended (CERCLA), and to
request the Attorney General to amend a consent decree issued under CERCIA.
2. ID WHCM pFTJnATED. Regional Administrators.
3. LIMITATIONS.
a. Regional Administrators may exercise the Agency's concurrence
authority in settlement of Regionally-initiated CERCLA section 104/107
recovery actions where the total response costs at the facility do not
exceed $500,000, excluding interest.
b. For all cases initiated by the Assistant Administrator for Solid
Waste and Emergency Response, the Regional Administrator or delegate* nust
obtain the concurrence of the Assistant Administrators for Enforcement and
Compliance Monitoring and Solid Waste and Emergency Response or their
designees before exercising this authority. The Assistant Administrators
for Enforcement and Compliance Monitoring and Solid Waste and Emergency
Response or their designees may waive the concurrence requirement by
memorandum on a Region-by-Region basis.
c. For cases initiated by the Regional Administrator other than those
identified in paragraph 3. a of this delegation (in which the Regional Adminis-
trator concurs for the Agency) , the Regional Administrator or delegatee must
obtain the concurrence of the Assistant Administrators for Enforcement and
Compliance Monitoring and Solid Waste and Emergency Response or their
designees before exercising this authority. The Assistant Administrators
for Enforcement and Compliance Monitoring and Solid Waste and Emergency
Response or their designees say waive the concurrence requirement by memorandum
on a Region-by-Region basis.
d. Six moths after the Administrator's signature of this delegation,
and every six Berths thereafter, th» Assistant Administrators for Enforcement
and Compliance Monitoring and Solid Waste and Emergency Response, or their
designees, will review each Region's experience in settlement of civil
judicial actions and, based upon that review, will consider jointly waiving
or modifying any advance concurrence requirement on a Region-by-Region
basis. The Administrator shall be apprised of the status of the advance
concurrence requirement upon completion of sacJt review.
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DELEGATICNS MAMAL
TOE CCMPREHENSIVE ENVIRCWaTrAL RESPOBE,
OCMPENSATION, AND LIABILITY ACT
14-13-B. Concurrence in Settlement of Civil Judicial Actions (cent1)
4. pFnFTjnATiCK ALTOPRITY. The authority to request the Attorney General
to amend a consent decree issued under CERQA nay be r•delegated to the
Division Director level. The other authorities cited in paragraph 1.
above may be redelegated.
5. ADDITIONAL REFERENCES.
a. Sections 104, 106, 107, 109, and 122 of CERCLA.
b. All applicable Agency guidance and directives.
c. For actions including 31 USC 3711 and its applicable regulations,
see delegations covering claims of EPA found in Chapter 1 of this Manual.
d. Settlements under CERCLA section 122(g) are covered by delegation
PI-14-E, "De Minimis Settlements."
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DELEGATION MANIAL
TOE CCMPRSHENSIVE EWIROMBOTAL RESPONSE
CCMPEtSATICK, AND LIABILITY ACT (PROA)
14-13-C. Emergency TROs
1. ALTnORITY. To refer to the Attorney General requests for emergency
Temporary Restraining Orders under the Crnprehensive Environnental Response,
Compensation and Liability Act. as amended (CERCLA).
2. TO WB3M DELR3ATED. Regional Administrators and the Assistant Administrator
for Enforcement and Compliance Monitoring.
3. LIMITATIONS.
a. The Regional Administrator or his/her delegate* must notify the
Assistant Administrator for Enforcement and Compliance Monitoring and the
Assistant Administrator for Solid Waste and Emergency Response or their
designees when exercising this authority,
b. The Assistant Administrator for Enforcement and Compliance Monitoring
or his/her delegate* toast notify the appropriate Regional Administrator and
the Assistant Administrator for Solid Waste and Emergency Response or their
'designees when exercising this authority.
4. REPETirafllON AimCRITY.. The Assistant Administrator for Enforcement and
Compliance Monitoring may redelegate this authority. The authority delegated
to Regional Administrators may be redelegatad to the On-Scene Coordinator
level.
5' ADDITIONAL REFERENCES.
a. Memorandum of Understanding between the Agency and the Department of
Justice.
b. Section* 106(a), 106(b) and 107 of CERCLA.
c. For r«£«rral of othar civil actions under CERC1A, see Delegation 14-12,
"Civil Judicial Enforcement Actions."
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DELEGATIONS
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (CERCLA)
14-14-A. Determinations of Inrunent and Substantial Endanqenrent
1. AUTHORITY. Pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), to make determinations that there may be an imminent
and substantial endangerment to public health or welfare or the envirorment.
2. TO WHOM DELEGATED. Regional administrators.
3. LIMITATIONS. This authority shall be exercised subject to directives
issued by the Assistant Administrator for Solid Waste and Emergency Response.
Regional Administrators must consult with the Assistant Administrator for
Solid Vtoste and Emergency Response or his/fter designee when exercising this
authority.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES. Section 106(a) of CERCLA.
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DELEGATIONS
THE OCMPRggKSIVE ENVIRCMglTERL RESPCNSE,
"ODMPEKSATICK AND LIABILITY ACT (CERQA)
14-14-B. Administrative Actions Through Unilateral Orders
1. wnPRITY. After giving notice to the affected State, to take
administrative action pursuant to the Oomprehensive Bwironnental Response,
Condensation and Liability Act, as amended (fERCTA), including, but not
limited to/ issuing such unilateral orders as may be necessary to protect
public health and welfare and the environment.
2. TO VBCM.DPrJf-ATEP. Regional Administrators.
3. LIMITATIONS . Regional Administrators or their delegate** oust consult
with the Assistant Administrator for Solid Waste and Bnergency Response or
his/her designee When exercising this authority.
4. RnyrmATICN WHORTTy. This authority may be redelsgated.
5. ADDITICNAL
a. Sections 104, 106, and 122 of OERGLA.
b. Applicable Agency guidance and 09WER directives.
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DELB3A.TICNS MANUAL
TOE COMPREHENSIVE ENVIRONMENTAL RESPCNSE,
"OPgEHSftTIOK AND LIABILITY ACT (CEROA)
14*14-C. Administrative Actions Through Consent Orders
1 . AUttPRIfY. After giving notice to the affected state, to take
adactnistr at i v* action pursuant to the comprehensive Environmental Response,
Compensation and Li-ability Act, as amended (CERCLA), including, but not
limited to, issuing such orders on consent as may be necessary to protect
public health and welfare and the environment.
2. TO WH3K DELB3R,TED. Regional Administrators.
3.
a. jRegional Administrators or their delegatees oust obtain the advance
concurrence- of the Assistant Administrator for Solid Waste and Bnergency
or his/her design** before exercising any of the above authorities.
b. The Assistant Administrator for Solid Waste and Emergency Response
or his/her designee nay waive advance, concurrence requirements by memorandum.
C. This authority does not include 'recovery of response costs under
CERCLA Section 122 (h) or settlements with de ainlmis parties under CERCLA
Section 122(g).
4. REDELEGATICM AUIHDRnY. l^is authority may be redelegated.
5.
». S«<=tions 104, 106, and 122 of CtRCLA.
fe. All applicable Agency^^uidance and directivM.
e. Autfccrlty to enter intH^or exercise Agency concurrence authority
ncn- judicial cost: reocvery t^eements or administrative orders is
d«I«9*ted in 14-14-0, "Cost Racdvery NorKTudicial Agreements and Administrative
Onsen*
_„ to enter int$ or exercise Agency concurrence authority in
settlements under .OEJI^LAJSection 122(g) ie delegated in Delegation
Miniais Settlements."
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