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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
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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
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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.
11
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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.
15
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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.
16
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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.
18
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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).
20
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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.
30
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Qa Th«anij
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
10
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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.
11
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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
12
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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
14
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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.
IS
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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
16
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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.
-------
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
-------
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|
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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
-------
Tabi« i. TTTLZ in
AOTHORJTHS
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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
-------
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
-------
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.
-------
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
-------
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.
-------
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
-------
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
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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.
-------
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.
-------
-2-
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."
-------
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."
-------
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.
-------
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.
-------
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."
-------