CERCLA ENFORCEMENT POLICY COMPENDIUM
UPDATE
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN221992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Update of the CERCLA Enforcejaentu^piacy Compendium
FROM: Bruce M. Diamond, Director
Office of Waste Programs ETTfof'c'ement
TO: Addressees
Attached is an update to the CERCLA Enforcement Policy
Compendium. These documents include significant policies and
guidances that were issued after August 14, 1990, the date of the
most recent update.
Divider tabs designated by year are furnished for your
convenience in separating the documents. Please replace the old
index and table of contents from your compendium with the updated
index which includes a new topical listing of documents.
If you have any comments of guestions on the compendium, you
may call Pat Kennedy of the Guidance and Evaluation Branch on FTS
260-3655.
Attachment
Addressees:
Director, Waste Management Division,
Regions I, IV, V, VII
Director, Emergency & Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Region III, VI, VIII, & IX,
Director, Hazardous Waste Division,
Region X
Regional Counsel, Regions I-X
Regional Counsel Waste Branch Chiefs, Regions I-X
CERCLA Enforcement Branch Chiefs, Regions I-X
CERCLA Enforcement Section Chiefs, Regions I-X
Printed on Recycled Paper
-------
OWPE92CE001C
September 1992
CERCLA ENFORCEMENT
POLICY COMPENDIUM
UPDATE
Office of Waste Programs Enforcement
U.S. Environmental Protection Agency
Washington, DC 20460
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
I. PRP Search
A. Timing and Procedures
Interim Guidance: Streamlining the CERCLA
Settlement Decision Process (Porter/Adams)
PRP Search Supplemental Guidance for Sites in
the Superfund Remedial Program (Diamond)
Accelerating Potentially Responsible Party
Remedial Design Starts: Implementing the 30-
Day Study
IL PRP Search Management
Releasing Identities of Potentially Responsible
Parties in Response to FOLA Requests
(Lucero/Sniff)
Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters, and Release of
Information (Lucero)
C. Information Requests
Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative
Subpoenas (Adams)
Transmittal of Model Consent Decree for
CERCLA Section 104(e) Information Request
Enforcement Actions
II. Negotiations, Settlements, and Oversight
A. General and Special Notice
Interim Guidance on Notice Letters,
Negotiations, and Information Exchange (Porter)
53 FR 5298 February 23, 1988
Waiver of Headquarters Approval for Issuance
of RD/RA Special Notice Letters at the Time of
ROD Signature (Longest/Diamond)
Model Notice Letters (Diamond)
Releasing Information to PRPs at CERCLA Sites
(Diamond/Unterberger)
Model Information Notice Letter to Local
Governments
Guidance on Preparing and Releasing Waste-in
Lists and Volumetric Rankings for Information
Release Under CERCLA Section 122 (e)
DATE
OSWER
NUMBER
02/12/87
06/29/89
04/02/92
01/26/84
10/09/85
08/25/88
08/29/90
10/19/87
09/26/88
02/07/89
03/01/90
05/07/91
02/22/91
9835.4
9834.3-2a
9835.4-2b*
9834.0
9834.2
9834.4-A
9834.14*
9834.1
9834.10-la
9834.10
9835.12
9834.16*
9835.16*
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
B. RI/FS Issues
Interim Guidance on Potentially Responsible
Parties Participation in Remedial Investigations
and Feasibility Studies (Porter)
Revisions to the Interim Guidance on PRP
Participation in Remedial Investigations and
Feasibility Studies (Porter/Diamond)
Model Statement of Work for a Remedial
Investigation and Feasibility Study Conducted by
PRPs
Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and
Feasibility Studies, Vol. 1
Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and
Feasibility Studies, Vol. 2
Performance of Risk Assessments in Remedial
Investigation/Feasibility Studies (RI/FSs)
Conducted by PRPs
Supplemental Guidance on Performing Risk
Assessments in Remedial Investigation
Feasibility Studies (RI/FSs) Conducted by
Potentially Responsible Parties (PRPs)
Model Statement of Work for a Remedial
Investigation and Feasibility Study Conducted by
Potentially Responsible Parties
Model Statement of Work for a Remedial
Investigation and Feasibility Study Conducted by
Potentially Responsible Parties (Annotated Copy)
C. Settlement Policy
Interim CERCLA Settlement Policy
(Thomas/Price/Habicht, 50 FR 5034 2/5/85)
Guidance on Premium Payments in CERCLA
Settlements (Adams and Porter)
Initiation of PRP-financed Remedial Design in
Advance of Consent Decree Entry (Adams and
Porter)
Guidance on Landowner Liability Under Section
107(a)(l) of CERCLA, De Minimis Settlements
under Section 122(g)(l)(b) of CERCLA, and
Settlements with Prospective Purchasers of
Contaminated Property (Reich/Cannon)
DATE
05/16/88
02/07/89
06/02/89
07/01/91
07/01/91
08/28/90
07/02/91
07/02/91
07/02/91
12/05/84
11/17/88
11/18/88
06/06/89
OSWER
NUMBER
9835. la
9835.2a
9835.8
9835. lc«
9835. Id*
9835.15*
9835.15a*
9835.8A
9835.8A
9835.0
9835.6
9835.4-2A
9835.9
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
Interim Municipal Settlement Policy (54 FR
51071, 12/12/89)
Multi-Media Settlements of Enforcement Claims
(Strock)
Procedures for Transmittal of CERCLA and
RCRA Civil Judicial Enforcement Case Packages
to Headquarters (Unterberger/Diamond)
Model Litigation Report for CERCLA Sections
106 and 107 and RCRA Section 7003
Final Model Litigation Report and Complaint for
CERCLA Section 104(e) Enforcement Initiative
Interim Agency Policy on Contribution
Protection Clauses in CERCLA Settlements
D. Liability
Liability of Corporate Shareholders and
Successor Corporations for Abandoned Sites
Under CERCLA (Price)
Policy for Enforcement Actions Against
Transporters Under CERCLA (Lucero/Stiehl)
Scope of the CERCLA Petroleum Exclusion
Under Sections 101(14) and 104(a)(2) (Blake)
Statement of James Stroch before the House
Subcommittee on Policy, Research & Insurance:
Insurer Liability for Cleanup Costs of Hazardous
Waste Sites
IL Consent Decree Procedures
Guidance on Drafting Consent Decrees in
Hazardous Waste Cases (Price/McGraw)
Guidance on the Use of Stipulated Penalties in
Hazardous Waste Consent Decrees (Adams)
Covenants Not to Sue Under SARA
(Adams/Porter/Habicht) (52 FR 28038, 7/27/87)
Submittal of Ten-Point Settlement Analyses for
CERCLA Consent Decrees
(Diamond/Unterberger)
Superfund Program, Model CERCLA RD/RA
Consent Decree
IL. Mixed Funding
Evaluating Mixed Funding Settlements
(Porter/Adams) (53 FR 8279, 3/14/88)
DATE
12/06/89
02/06/90
06/12/89
06/21/89
01/31/90
04/10/91
06/13/84
05/01/85
09/21/87
07/10/87
08/11/89
07/08/91
10/20/87
OSWER
NUMBER
9834.13
9891.6
9891.1-la
9835.11-1
9832.10
12/23/85
07/31/87
09/27/90
9829.0
9838.1
*
9835.2
9835.2b
9834.8
9835.14
9834.9
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
Interim Policy on Mixed Funding Settlements
Involving the pre-Authorization of States or
Political Subdivisions (Porter/Adams)
G. De Minimis
Interim Guidance on Settlements with De
Minimis Waste Contributors (Adams/Porter) (52
FR 24333, 6/30/87)
Interim Model CERCLA Sec.l22(g)(4) De
Minimis Waste Contributor Consent Decree and
Administrative Order Guidance (Reich/Lucero)
(52 FR 43393, 11/12/87)
Methodologies for Implementation of CERCLA
Section 122(g)(l)(a) De Minimis Waste
Contributor Settlements (Diamond/Unterberger)
H. Guidelines on Preparing NBARs
Interim Guidelines on Preparing Nonbinding
Preliminary Allocations of Responsibility
(Thomas) 52 FR 19919 May 28, 1987
III. Section 106
A. Administrative Orders
Model Administrative Order on Consent for
Remedial Investigation/Feasibility Study
FY 90 "UAO Strategy" (Clay/Strock)
Guidance on CERCLA Section 106(a) Unilateral
Administrative Orders for Remedial
Design/Remedial Action (Clay/Strock)
*
Model Unilateral Administrative Order for
Remedial Design and Remedial Action under
Section 106 of CERCLA
Issuance of Administrative Orders for Immediate
Removal Actions (Thomas)
Guidance on CERCLA Section 106 Judicial
Actions
Guidance on the Use and Issuance of
Administrative Orders Under Section 106
(Price/Thomas)
Evaluation of, and Additional Guidance on,
Issuance of Unilateral Administrative Orders
(UAOs) for RD/RA
Administrative Order on Consent for Remedial
Investigation/Feasibility Study
DATE
05/27/88
OSWER
NUMBER
9834.9a
06/19/87
10/19/87
12/20/89
05/16/87
01/30/90
02/14/90
03/07/90
03/30/90
02/21/84
02/24/89
09/08/83
06/20/91
07/02/91
9834.7
9834.7-la
9834.7-lb
9839.1
9835.3-1A
9870.1 A
9833.0-1 a
9833.0-2(b)
9833.1
9835.7
9833.0**
9833.2c*
9835.3-2A
* = Policies dated after 8/14/90
:* = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
Administrative Order on Consent for Remedial
Investigation/Feasibility Study (Annotated Copy)
B. 106(b) Reimbursement
Consent Orders and the Reimbursement
Provision Under Section 106(b) of CERCLA
(Lucero/Leifer)
IV. Cost Recovery
A. Cost Recovery Guidance
Cost Recovery Actions under CERCLA
(Price/Thomas)
B. Procedures for Documenting Cost
Preparation of Hazardous Waste Referrals
(Stiehl)
Written Demand for Recovery of Costs Incurred
Under CERCLA
C. Cost Recovery Strategy
Superfund Cost Recovery Strategy (Porter)
Model Cost Recovery CD
D. General Cost Recovery
Cost Recovery Referrals (Sniff)
Expansion of Direct Referral of Cases to the
Department of Justice (Adams)
Coordination of EPA and State Actions in Cost
Recovery Negotiations and Litigation
(Price/Thomas)
Guidance Regarding CERCLA Enforcement
Against Bankrupt Parties (Price)
Small Cost Recovery Referrals (Stiehl/Lucero)
Arbitration Procedures for Small Superfund Cost
Recovery Claims; Final Rule (53 FR 23174,
5/30/89)
Revised Hazardous Waste Bankruptcy Guidance
(Hays)
Policy on Recovering Indirect Costs in CERCLA
Section 107 Cost Recovery Actions
(Stiehl/Stanton)
Cost Recovery Actions/Statute of Limitations
(Lucero)
07/02/91
06/12/87
08/26/83
07/30/85
03/21/91
07/29/88
03/31/91
08/03/83
01/14/88
08/29/83
05/24/84
07/12/85
08/28/89
05/23/86
06/27/86
06/12/87
OSWER
NUMBER
9835.3-2A
9833.2
9832.1
9837.1
9832.18*
9832.13
9832.0
9891. 5A
9832.2
9832.7
9832.6
9832.17
9832.8
9832.5
9832.9
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
Guidance on Drafting Decisions not to Take
Cost Recovery Actions (Cannon)
V. State Issues
A. Funding State Enforcement Actions
Interim Final Guidance Package on Funding
CERCLA State Enforcement Actions at NPL
Sites (Porter)
B. Counting State-lead Enforcement
Counting State-lead Enforcement NPL Sites
Toward the CERCLA Section 116(e) Remedial
Action Start Mandate (Porter)
Questions and Answers About the State Role in
Remedy Selection at Non-Funded-Financed
State-Lead Enforcement Sites
C. General State Guidance
Interim Final Guidance on Preparation of
Superfund Memoranda of Agreement (SMOAs)
(Diamond/Longest)
Reporting and Exchange of Information on State
Enforcement Actions at National Priorities List
Sites (Porter)
Supporting State Attorneys General CERCLA
Remedial and Enforcement Response Activities
at NPL Sites (Longest/Cannon)
C. General State Guidance
EPA/State/Relationship in Enforcement Actions
for Sites on the National Priorities List
VI. Other Guidance
A. Administrative Record
Interim Guidance on Administrative Records for
Selection of CERCLA Response Actions
Administrative Records for Decisions on
Selection of CERCLA Response Actions
(Lucero/Longest)
Final Guidance on Administrative Records for
Selection of CERCLA Response Actions
IL Community Relations
CERCLA Community Relations Mailing List
(Diamond/Longest)
DATE
06/07/88
04/07/88
10/21/88
04/18/91
05/08/89
03/14/86
06/21/88
10/02/84
03/01/89
05/29/87
12/03/90
02/06/89
OSWER
NUMBER
9832.11
9831.6a-6d
9831.8
9831.9*
9375.0-01
9831.2
9831.7
9831.3
**
9833.3A**
9833.3**
9833.3A-1*
9836.2
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
Community Relations during Enforcement
Activities and Development of the
Administrative Record (Porter)
Policy Towards Owners of Residential Property
at Superfund Sites
C. Entry and Access
Entry and Continued Access Under CERCLA
(Adams)
D. Insurance and Indemnification
Procedural Guidance on Treatment of Insurers
under CERCLA (Price)
EPA Interim Guidance on Indemnification of
Superfund Response Action Contractors
(Porter/Kinghorn)
IL Program Management Guidance
Integrated Timeline for Superfund Site
Management (Clay/Strock)
IL. Federal Liens
Guidance on Federal Superfund Liens (Adams)
G. Off-Site Policy
Revised Procedures for Implementing Off-site
Response Actions (Porter)
Notification of Out-of-State Shipments of
Superfund Site Wastes (Canon)
H. Penalty Policies
Administrative Penalty Procedures Interim Final
Rule (54 FR 21174, 5/16/89)
EPCRA/CERCLA Penalty Policy
Revised EPA Guidance for Parallel Proceedings
Interim Guidance on Use of Administrative
Penalty Provisions of Section 109 of CERCLA
and Section 325 of SARA (Adams)
L Title III
Interim Strategy for Enforcement of Title III and
CERCLA Section 103 Notification Requirements
DATE
11/03/88
07/03/91
06/05/87
11/21/85
10/06/87
06/11/90
09/22/87
11/13/87
09/14/89
05/16/89
06/13/90
06/21/89
07/16/87
OSWER
NUMBER
9836.0-1A
9834.6*
9829.2
9834.5
9835.5
9851.3
9832.12
9834.11
9330.2-07
9841.1A
9841.2
9843.0
9841.1**
12/14/88
9841.0
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Topical Index
POLICY
L. Releases
Reporting Exemptions for Federally Permitted
Releases of Hazardous Substances (Thomas) (53
FR 27268, 7/19/88)
K. Delegations
CERCLA Enforcement Delegations
Clarification of Delegations of Authority 14-14-
A, 14-14-B, and 14-14-C under CERCLA
LL Remedial Actions
Guidance on Remedial Actions for Superfund
Sites with PCB Contamination - SMR Rec. #23
M.Enforcement Strategy
Superfund Enforcement Strategy and
Implementation Plan
Pre-referral Negotiation Procedures for
Superfund Enforcement Cases
N. Inspector Training Requirements
CERCLA Implementation of Inspector Training
Requirements for OSCs/RPMs at the
Intermediate Level in STEP and First Line
Supervisors
Guidance on Applicability of EPA Order 3500.1
to CERCLA Staff
CERCLA Implementation of the Training
Requirements of EPA Order 3500.1 - Inspector
Training
O. Risk Assessment
Endangerment Assessment Guidance (Porter)
DATE
07/11/88
09/13/87
04/04/90
08/15/90
11/03/90
10/12/90
04/03/91
11/28/88
10/19/89
OSWER
NUMBER
Exempt
9836.2
9012.10-1
9835.4-01*
9800.0*
9842.2*
9842.0
9842.1
11/22/85
9850.0-1**
* = Policies dated after 8/14/90
** = Policies that have been superseded by later policies
-------
CERCLA Enforcement Policy Compendium Index By Date
DATE
08/03/83
08/26/83
08/29/83
POLICY
Cost Recovery Referrals (Sniff)
Cost Recovery Actions under CERCLA (Price/Thomas)
Coordination of EPA and State Actions in Cost Recovery
Negotiations and Litigation (Price/Thomas)
OSWER
NUMBER
9832.0
9832.1
9832.2
09/08/83
Guidance on the Use and Issuance of Administrative Orders
Under Section 106 (Price/Thomas)
9833.0**
01/26/84
Releasing Identities of Potentially Responsible Parties in
Response to FOIA Requests (Lucero/Sniff)
9834.0
02/21/84
Issuance of Administrative Orders for Immediate Removal
Actions (Thomas)
9833.1
05/24/84
Guidance Regarding CERCLA Enforcement Against Bankrupt
Parties (Price)
9832.7
06/13/84
Liability of Corporate Shareholders and Successor
Corporations for Abandoned Sites Under CERCLA (Price)
9832.10
10/02/84
EPA/State/Relationship in Enforcement Actions for Sites on
the National Priorities List
9831.3**
12/05/84
Interim CERCLA Settlement Policy (Thomas/Price/Habicht, 50
FR 5034 2/5/85)
9835.0
05/01/85
Guidance on Drafting Consent Decrees in Hazardous Waste
Cases (Price/McGraw)
9835.2
07/12/85
07/30/85
10/09/85
Small Cost Recovery Referrals (Stiehl/Lucero)
Preparation of Hazardous Waste Referrals (Stiehl)
Timely Initiation of Responsible Party Searches, Issuance of
Notice Letters, and Release of Information (Lucero)
9832.6
9837.1
9834.2
11/21/85
Procedural Guidance on Treatment of Insurers under CERCLA
(Price)
9834.5
11/22/85
12/23/85
Endangerment Assessment Guidance (Porter)
Policy for Enforcement Actions Against Transporters Under
CERCLA (Lucero/Stiehl)
* = Policies dated after 8/14/90
** = Policies that are superceded
9850.0-1**
9829.0
-------
DATE
03/14/86
POLICY
Reporting and Exchange of Information on State Enforcement
Actions at National Priorities List Sites (Porter)
OSWER
NUMBER
9831.2
05/23/86
06/27/86
Revised Hazardous Waste Bankruptcy Guidance (Hays)
Policy on Recovering Indirect Costs in CERCLA Section 107
Cost Recovery Actions (Stiehl/Stanton)
9832.8
9832.5
02/12/87
Interim Guidance: Streamlining the CERCLA Settlement
Decision Process (Porter/Adams)
9835.4
05/16/87
Interim Guidelines on Preparing Nonbinding Preliminary
Allocations of Responsibility (Thomas) 52 FR 19919 May 28,
1987
9839.1
05/29/87
Administrative Records for Decisions on Selection of CERCLA
Response Actions (Lucero/Longest)
9833.3'
06/05/87
06/12/87
Entry and Continued Access Under CERCLA (Adams)
Consent Orders and the Reimbursement Provision Under
Section 106(b) of CERCLA (Lucero/Leifer)
9829.2
9833.2
06/12/87
06/19/87
Cost Recovery Actions/Statute of Limitations (Lucero)
Interim Guidance on Settlements with De Minimis Waste
Contributors (Adams/Porter) (52 FR 24333, 6/30/87)
9832.9
9834.7
07/10/87
Covenants Not to Sue Under SARA (Adams/Porter/Habicht)
(52 FR 28038, 7/27/87)
9834.8
07/16/87
Interim Guidance on Use of Administrative Penalty Provisions
of Section 109 of CERCLA and Section 325 of SARA (Adams)
9841.1**
07/31/87
Scope of the CERCLA Petroleum Exclusion Under Sections
101(14) and 104(a)(2) (Blake)
9838.1
09/13/87
09/21/87
CERCLA Enforcement Delegations
Guidance on the Use of Stipulated Penalties in Hazardous
Waste Consent Decrees (Adams)
9836.2
9835.2b
09/22/87
10/06/87
Guidance on Federal Superfund Liens (Adams)
EPA Interim Guidance on Indemnification of Superfund
Response Action Contractors (Porter/Kinghorn)
9832.12
9835.5
* = Policies dated after 8/14/90
** = Policies that are superceded
-------
DATE
10/19/87
POLICY
Interim Guidance on Notice Letters, Negotiations, and
Information Exchange (Porter) 53 FR 5298 February 23, 1988
OSWER
NUMBER
9834.1
10/19/87
Interim Model CERCLA Sec.l22(g)(4) De Minimis Waste
Contributor Consent Decree and Administrative Order
Guidance (Reich/Lucero) (52 FR 43393, 11/12/87)
9834.7-la
10/20/87
Evaluating Mixed Funding Settlements (Porter/Adams) (53 FR
8279, 3/14/88)
9834.9
11/13/87
Revised Procedures for Implementing Off-site Response
Actions (Porter)
9834.11
01/14/88
Expansion of Direct Referral of Cases to the Department of
Justice (Adams)
9891.5A
04/07/88
05/16/88
Interim Final Guidance Package on Funding CERCLA State
Enforcement Actions at NPL Sites (Porter)
Interim Guidance on Potentially Responsible Parties
Participation in Remedial Investigations and Feasibility Studies
(Porter) [Revised]
9831.6a-6d
9835.la
05/27/88
Interim Policy on Mixed Funding Settlements Involving the
pre-Authorization of States or Political Subdivisions
(Porter/Adams)
9834.9a
06/07/88
Guidance on Drafting Decisions not to Take Cost Recovery
Actions (Cannon)
9832.11
06/21/88
Supporting State Attorneys General CERCLA Remedial and
Enforcement Response Activities at NPL Sites
(Longest/Cannon)
9831.7
07/11/88
Reporting Exemptions for Federally Permitted Releases of
Hazardous Substances (Thomas) (53 FR 27268, 7/19/88)
Exempt
07/29/88
08/25/88
Superfund Cost Recovery Strategy (Porter)
Guidance on Use and Enforcement of CERCLA Information
Requests and Administrative Subpoenas (Adams)
9832.13
9834.4-A
09/26/88
Waiver of Headquarters Approval for Issuance of RD/RA
Special Notice Letters at the Time of ROD Signature
(Longest/Diamond)
9834.10-1 a
10/21/88
Counting State-lead Enforcement NPL Sites Toward the
CERCLA Section 116(e) Remedial Action Start Mandate
(Porter)
* = Policies dated after 8/14/90
** = Policies that are superceded
9831.8
-------
DATE
11/03/88
11/17/88
POLICY
Community Relations during Enforcement Activities and
Development of the Administrative Record (Porter)
Guidance on Premium Payments in CERCLA Settlements
(Adams and Porter)
OSWER
NUMBER
9836.0-1A
9835.6
11/18/88
Initiation of PRP-financed Remedial Design in Advance of
Consent Decree Entry (Adams and Porter)
9835.4-2A
11/28/88
Guidance on Applicability of EPA Order 3500.1 to CERCLA
Staff
9842.0
12/14/88
Interim Strategy for Enforcement of Title in and CERCLA
Section 103 Notification Requirements
9841.0
02/06/89
CERCLA Community Relations Mailing List
(Diamond/Longest)
9836.2
02/07/89
02/07/89
Model Notice Letters (Diamond)
Revisions to the Interim Guidance on PRP Participation in
Remedial Investigations and Feasibility Studies
(Porter/Diamond)
9834.10
9835.2a
02/24/89
03/01/89
Guidance on CERCLA Section 106 Judicial Actions
Interim Guidance on Administrative Records for Selection of
CERCLA Response Actions
9835.7
9833.3A**
05/08/89
Interim Final Guidance on Preparation of Superfund
Memoranda of Agreement (SMOAs) (Diamond/Longest)
9375.0-01
05/16/89
Administrative Penalty Procedures Interim Final Rule (54 FR
21174,5/16/89)
9841.1A
06/02/89
Model Statement of Work for a Remedial Investigation and
Feasibility Study Conducted by PRPs
9835.8
06/06/89
Guidance on Landowner Liability Under Section 107(a)(l) of
CERCLA, De Minimis Settlements under Section 122(g)(l)(b)
of CERCLA, and Settlements with Prospective Purchasers of
Contaminated Property (Reich/Cannon)
9835.9
06/12/89
Procedures for Transmittal of CERCLA and RCRA Civil
Judicial Enforcement Case Packages to Headquarters
(Unterberger/Diamond)
9891.1-la
* = Policies dated after 8/14/90
** = Policies that are superceded
-------
DATE
06/21/89
POLICY
Model Litigation Report for CERCLA Sections 106 and 107
and RCRA Section 7003
OSWER
NUMBER
9835.11-1
06/21/89
06/29/89
Revised EPA Guidance for Parallel Proceedings
PRP Search Supplemental Guidance for Sites in the Superfund
Remedial Program (Diamond)
9843.0
9834.3-2a
08/11/89
Submittal of Ten-Point Settlement Analyses for CERCLA
Consent Decrees (Diamond/Unterberger)
9835.14
08/28/89
Arbitration Procedures for Small Superfund Cost Recovery
Claims
Final Rule (53 FR 23174, 5/30/89)
9832.17
09/14/89
Notification of Out-of-State Shipments of Superfund Site
Wastes (Canon)
9330.2-07
10/19/89
CERCLA Implementation of the Training Requirements of
EPA Order 3500.1 - Inspector Training
9842.1
12/06/89
12/20/89
Interim Municipal Settlement Policy (54 FR 51071, 12/12/89)
Methodologies for Implementation of CERCLA Section
122(g)(l)(a) De Minimis Waste Contributor Settlements
(Diamond/Unterberger)
9834.13
9834.7-lb
01/30/90
Model Administrative Order on Consent for Remedial
Investigation/Feasibility Study
9835.3-1A
01/31/90
Final Model Litigation Report and Complaint for CERCLA
Section 104(e) Enforcement Initiative
02/06/90
02/14/90
03/01/90
Multi-Media Settlements of Enforcement Claims (Strock)
FY 90 "UAO Strategy" (Clay/Strock)
Releasing Information to PRPs at CERCLA Sites
(Diamond/Unterberger)
9891.6
9870.1 A
9835.12
03/07/90
Guidance on CERCLA Section 106(a) Unilateral
Administrative Orders for Remedial Design/Remedial Action
(Clay/Strock)
9833.0-la
03/30/90
Model Unilateral Administrative Order for Remedial Design
and Remedial Action under Section 106 of CERCLA
9833.0-2(b)
* = Policies dated after 8/14/90
** = Policies that are superceded
-------
DATE
04/04/90
06/11/90
POLICY
Clarification of Delegations of Authority 14-14-A, 14-14-B,
and 14-14-C under CERCLA
Integrated Timeline for Superfund Site Management
(Clay/Strock)
OSWER
NUMBER
9012.10-1
9851.3
06/13/90
08/15/90
EPCRA/CERCLA Penalty Policy
Guidance on Remedial Actions for Superfund Sites with PCB
Contamination - SMR Rec. #23
9841.2
9835.4-01*
08/28/90
Performance of Risk Assessments in Remedial
Investigation/Feasibility Studies (RI/FSs) Conducted by PRPs
9835.15*
08/29/90
Transmittal of Model Consent Decree for CERCLA Section
104(e) Information Request Enforcement Actions
9834.14*
09/27/90
Statement of James Stroch before the House Subcommittee on
Policy, Research & Insurance: Insurer Liability for Cleanup
Costs of Hazardous Waste Sites
10/12/90
Pre-referral Negotiation Procedures for Superfund Enforcement
Cases
11/03/90
12/03/90
Superfund Enforcement Strategy and Implementation Plan
Final Guidance on Administrative Records for Selection of
CERCLA Response Actions
9800.0*
9833.3A-1*
02/22/91
Guidance on Preparing and Releasing Waste-in Lists and
Volumetric Rankings for Information Release Under CERCLA
Section 122 (e)
9835.16*
03/21/91
Written Demand for Recovery of Costs Incurred Under
CERCLA
9832.18'
03/31/91
04/03/91
Model Cost Recovery CD
CERCLA Implementation of Inspector Training Requirements
for OSCs/RPMs at the Intermediate Level in STEP and First
Line Supervisors
9842.2"
04/10/91
Interim Agency Policy on Contribution Protection Clauses in
CERCLA Settlements
04/18/91
Questions and Answers About the State Role in Remedy
Selection at Non-Funded-Financed State-Lead Enforcement
Sites
* = Policies dated after 8/14/90
** = Policies that are superceded
9831.9*
-------
05/07/91
06/20/91
POLICY
Model Information Notice Letter to Local Governments
Evaluation of, and Additional Guidance on, Issuance of
Unilateral Administrative Orders (UAOs) for RD/RA
OSWER
NUMBER
9834.16*
9833.2C*
07/01/91
07/01/91
Guidance on Oversight of Potentially Responsible Party
Remedial Investigations and Feasibility Studies, Vol. 1
Guidance on Oversight of Potentially Responsible Party
Remedial Investigations and Feasibility Studies, Vol. 2
9835.Ic*
9835.Id*
07/02/91
Supplemental Guidance on Performing Risk Assessments in
Remedial Investigation Feasibility Studies (RI/FSs) Conducted
by Potentially Responsible Parties (PRPs)
9835.15a*
07/02/91
Administrative Order on Consent for Remedial
Investigation/Feasibility Study
9835.3-2A
07/02/91
Administrative Order on Consent for Remedial
Investigation/Feasibility Study (Annotated Copy)
9835.3-2A
07/02/91
07/02/91
07/03/91
Model Statement of Work for a Remedial Investigation and
Feasibility Study Conducted by Potentially Responsible Parties
Model Statement of Work for a Remedial Investigation and
Feasibility Study Conducted by Potentially Responsible Parties
(Annotated Copy)
Policy Towards Owners of Residential Property at Superfund
Sites
9835.8A
9835.8A
9834.6*
07/08/91
04/02/92
Superfund Program, Model CERCLA RD/RA Consent Decree
Accelerating Potentially Responsible Party Remedial Design
Starts: Implementing the 30-Day Study
9835.4-2b*
* = Policies dated after 8/14/90
** = Policies that are superceded
-------
OSWER Directive 9842.0
>*
?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NCV 2 8 i988
OFFICE OF
SOLID WASTE AND EMERGENCY RESPON!
MEMORANDUM
Guidance on Applicability of EPA Order 3500.1 to CERCLA
Staff
Bruce M. Diamond, Directo _
Office of Waste Programs En
SUBJECT:
FROM:
Henry L. Longest II, Director
Office of Emergency and Remedial
TO: Waste Management Division Directors
Regions I - X
Environmental Services Division Directors
Regions I - X
On June 29, 1988, EPA Order 3500.1 established training
requirements for Compliance Inspectors/Field Investigators. This
Order applies to all EPA personnel who lead or oversee the
conduct of compliance inspection/field investigations on a full
or part-time basis under any of EPA's statutes, including CERCLA.
However, since CERCLA staff do not perform classic
compliance inspections, the Order allows the CERCLA program
offices to define, through guidance to the Regional
Administrators, which CERCLA staff shall be subject to the
Order's requirements. It also indicates that a CERCLA-specific
curriculUB is being developed to address the required training.
The following definition shall be used to determine the
CERCLA staff subject to the Order's training requirements:
"All staff who collect samples, conduct field audits or
oversee Potentially Responsible Party (PRP) projects for the
purpose of ensuring PRP compliance or for obtaining evidence to
use in potential enforcement actions."
-------
-2-
This definition should include, at a minimum, On-Scene
Coordinators (OSCs) and Remedial Project Managers (RPMs) involved
in field activities. However, it is understood, per Section
9d(2) of the Order, that the Regional Administrator makes the
final determination of who in the Region is subjec^. to the Order
and is responsible for reviewing and approving any exceptions to
the training requirements.
Curriculum
In addition to the health and safety training currently
required, the Order mandates a minimum of forty hours that
cover:
o Legal fundamentals - introduction to enforcement of EPA
statutes, overview of enforcement and compliance goals
and strategies, administrative and judicial litigation
processes, legal authority and EPA policies regarding
gaining entry, use of information-gathering tools, and
defining and documenting evidence
o Technical issues - roles and responsibilities of an
inspector/investigator, violation detection and
investigative techniques, records inspection,
statistical sampling strategies, obtaining physical
samples, QA/QC, and lab analysis
o Communication skills - notification, negotiation
techniques, elements of an inspection plan, written
documentation & reporting requirements
o Administrative - planning considerations, travel,
records management, organizational structure, contract
mechanisms
To meet these requirements, our offices will slightly
modify the "OSC/RPM Basic Course". Additionally, the OSC/RPM
Support Program developed by OERR calls for an OSC/RPM Academy to
be piloted in April 1989 which will provide 41 days of required
training for new OSCs and RPMs that will also meet, as part of
its curriculum, the training requirements in EPA Order 3500.1.
At this time, it is not anticipated that any additional
training courses or materials will need to be developed to meet
the Order's requirements.
If you have any questions about or problems with the
proposed definition of affected CERCLA staff or the curriculum,
please feel free to contact either of us.
-------
"ED : • A'ES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT I 9 1989
OSWER Directive 9842.1
MEMORANDUM
SUBJECT: CERCLA Implementation of the Training Requirements of EPA
Order 3500.1 - Inspector Training
FROM: Henry L. Longest II, Director
Office of Emergency and Remedial
j/Y*l3ruce Diamond, Director ^A^c^^^,^,
v Office of Waste Programs Enforcement
TO: Waste Management Division Directors
Regions I - X
Environmental Services Division Directors
Regions I - x
I. PURPOSE
The purpose of this memorandum is to explain how On-Scene
Coordinators (OSCs) and Remedial Project Managers (RPMs) may
satisfy the requirements for Inspector Training under EPA Order
3500.1, or may be granted an exemption from those requirements.
An exemption may be granted depending on the implementation of the
Structured Training and Evaluation Program (STEP). STEP is a key
component of the OSC/RPM, Support Program created by OSWER.
Depending on the various levels in STEP - Basic, Intermediate,
Advanced or Master - to which an OSC/RPM is assigned, an exemption
may be granted from the training requirements of the Order.
II. BACKGROUND
EPA Order 3500.1, Training and Development for Compliance
Inspectors/Field Investigators (June 29, 1988), established a Basic
Curriculum and requirements for development of Program-Specific
Curricula for Inspectors. This Order applies to all EPA personnel
who lead or oversee the conduct of compliance inspections/field
investigations on a full or part-time basis under any of EPA's
statutes, including CERCLA. The requirements in the Order also
apply to the first-line supervisors of staff who meet the Order's
definition of an Inspector. A copy of Order 3500.1 is included as
Attachment A.
-------
-2-
III. APPLICABILITY CT ORDER TO CERCLA STAFF
In November 19SS, OSWER issued guidance on the applicability
of the Order to CERCLA staff (Attachment B) in the Regions. This
guidance provided a definition for determining the CERCLA staff
who are subject to the Order's requirements. This definition
included, at a minimum, OSCs and RPMs involved in field activities
and their first-line supervisors.
IV. IMPLEMENTATION OF THE ORDER'S TRAINING REQUIREMENTS
EPA Order 3500.1 established important requirements for basic
and program-specific minimum training to be completed before an
Inspector could lead an inspection. The Order also reiterated
existing requirements for health and safety training. To satisfy
the requirement for basic training, OECM developed a course,
"Fundamentals of Environmental Compliance Inspections" for all
inspectors regardless of the program area, to be implemented by the
Regions across the entire organization. Program Offices are
responsible for developing and delivering the program-specific
curriculum.
CERCLA, however, has tied fullfillment of the Order's
requirements into its own program-specific initiative, the OSC/RPM
Support Program. Two components of this Pr:gram, (1) the seven-
week OSC/RPM Basic Training Academy and, (2) the Structured
Training and Evaluation Program (STEP) are directly linked to the
requirements for training and granting excep- ions as stated in the
Inspector Training Order. The first session of the OSC/RPM Basic
Training Academy began in May 1989, and the second is scheduled to
begin in late October 1989. All staff who complete the Academy
will satisfy tae requirements of EPA Order 3500.1.
V. STEP AND EXEMPTIONS
Decisions made on STEP will affect how CERCLA personnel are
handled under EPA Order 3500.1. STEP establishes, four levels of
experience, knowledge and skills required to manage progressively
complex Superfund sites/incidents. These levels are: (1) Basic,
(2) Intermediate, (3) Advanced, and (4) Master. Decisions on
training requirements and exceptions are tied to these levels.
The evaluation process for all OSCs/RPMs is not complete at
this time, but is scheduled to begin this Fall. Once this
evaluation has been completed, the exceptions policy defined for
each level will apply as stated in the SUMMARY section of this
memorandum.
-------
The OSC/RPM staff designated at the Master or Advanced Level
will generally be excepted since they will have satisfied the
requirements of the Order. Based on nominations and review this
past Spring, 48 OSCs/RPMs have been designated as Masters.
We have not yet established a policy for those OSCs/RPMs
designated at the Intermediate Level, or below who did not attend
the Academy, nor for first-line supervisors of OSCs/RPMs. This
will be finalized in the Fall of 1989, as the evaluation process
is established. These CERCLA staff should keep in mind that
attendance at a Regional offering of the "Fundamentals of
Environmental Compliance Inspections" course satisfies the basic
curriculum in the Order and is- a viable means of partially
completing the training requirements. However, the program-
specific curriculum requirements in the Order would still need to
be satisfied or excepted. These decisions will be made during the
grandfathering process.
New OSCs/RPMs who have attended or who are required to attend
the Superfund OSC/RPM Basic Training Academy will satisfy the
requirements of EPA Order 3500.1 by completing all sessions of the
Academy. OSWER Directive 9295.9-05, "Mandatory Training
Requirements for OSCs and RPMs" (Sept. 29, 1989), specifies who
must attend the Academy.
VI. SUMMARY
Attendance of new OSCs/RPMs at the OSC/RPM Basic Training
Academy will satisfy the requirements of Order 3500,1. There are
no exceptions to this policy for new OSC/RPM Superfund staff.
Staff who will be grandfathered into the STEP program at the
Advanced and Master levels are formally exempted from .the
requirements of the Order. OSCs/RPMs grandfathered in at the
Intermediate Level may need additional training or may be exempted
from EPA Order 3500.1 based on previous training and/or experience.
These decisions will be made in conjunction with the grandfather ing
process in the Fall of 1989.
First-line supervisors are not included in the STEP program.
Therefore, training options and guidance on exceptions still needs
to be developed for this group. We aim to have this guidance
prepared by February 1990.
Further guidance in the form of a memo will be provided in the
near future on tracking and compliance procedures for STEP.
-------
UNITED . fATES ENVIRONMENTAL PROTL
WASHINGTON DC 20460
ION AGENCY
JH3I 080
MEMORANDUM
SUBJECT: Final Model Litigation Report and Complaint for CERCLA
Section I04(e) Enforcement Initiative
FROM: Glenn L. Unterberg«r
Associate Enforcement Counsel for Waste
Bruce M. Diamond, Director
Office of Waste Programs Enforcement
TO: Regional Counsels and Waste Division Directors,
Regions I-X
Please find attached the Final Model Litigation Report and
Complaint for the CERCLA § I04(e) enforcement initiative. We
extend our thanks to those of you who submitted comments on trie
Draft Model Litigation Report and Complaint. We look forward to
working with you and your staff on implementation of the Agency's
§ 104(e) enforcement initiative.
Attachment
cc: Edward E. Reich, Deputy Assistant Administrator-Civil
David Buente, Chief
Environmental Enforcement Section, Department of Justice
Regional § 104(e) Contacts
-------
MODEL CERCLA 104(6) COMPLAINT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF...
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No,
)
)
)
Defendant. )
COMPLAINT
Plaintiff, the United States of America, by authority of the
Attorney General and acting at the request of the Administrator
of the Environmental Protection Agency ("EPA"), alleges as
follows:
NATURE OF THE CLAIMS
1. The claims in this complaint arise under section 104(e)
of the Comprehensive Environmental Response, Compensation, and
Liability Act (hereinafter "CERCLA"), 42 U.S.C. § 9604(e), for
failure to provide information requested by EPA concerning the
identification, nature, and quantity of materials that have been
generated, stored, treated, transported to and/or disposed of at
the [FACILITY], the nature and extent of a release or threatened
release of hazardous substances at or from the [FACILITY], arid
information relating to the ability of a person to pay for or
-------
2
perform the cleanup of the [FACILITY]. The complaint seeks an
injunction ordering the defendant, [NAME], to supply the
requested information and civil penalties for defendant's failure
to comply with EPA's duly authorized requests.
DEFENDANT
[USE A SEPARATE PARAGRAPH FOR EACH DEFENDANT. THE FOLLOWING
PARAGRAPHS ARE MODELS FOR THE VARIOUS TYPES OF DEFENDANTS LIKELY
TO BE ENCOUNTERED.]
2. Defendant [NAME] is a [STATE] corporation [DOING
BUSINESS OR WITH ITS PRINCIPAL PLACE OF BUSINESS] at [ADDRESS].
[INCLUDE HERE ANY PARTICULARS RELATING TO MERGER WITH OTHER
CORPORATIONS, DISSOLUTION, OR ANY OTHER LIKE INFORMATION.]
3. The defendants [NAME] and [NAME] are the trustees of the
[NAME], a trust created by declaration of trust dated [DATE], and
recorded with the [APPROPRIATE RECORDING OFFICE] at book ,
page , with its principal place of business at [ADDRESS].
4. The defendant [NAME] is an individual who resides at
[ADDRESS].
5. The defendant [NAME] is a [STATE] [LIMITED] partnership
with its principal place of business at [ADDRESS]
JURISDICTION AND VENUE
3. This Court has jurisdiction over the subject matter of
this action and over the parties under 42 U.S.C. § 9613(b) and
U.S.C. 5S 133L, 1345 and 1355. Venue lies in this district >.:
28 U.S.C. 5 1391 and 42 U.S.C. 5 ''* M (b ) .
-------
3
GENERAL ALLEGATIONS
4. Section 104(e)(2), 42 U.S.C. § 9604(e)(2), of CERCLA
provides, in pertinent part:
Any officer, employee, or representative [of
the President, duly designated by the President),
may require any person who has or may 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 generated,
treated, 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.
5. [NAME] is a "person" within the meaning of section
101(21) of CERCLA, 42 U.S.C. § 9601(21).
6. [DESCRIPTION OF DEFENDANT'S INVOLVEMENT - I.E.. WHETHER
DEFENDANT WAS AN OWNER, OPERATOR, GENERATOR OR TRANSPORTER OF
HAZARDOUS SUBSTANCES, OR OTHER PERSON WHO FAILED TO COMPLY WITH
THE REQUEST, ETC. PROVIDE PARTICULARS.]
7. [DESCRIPTION OF THE SITE OR FACILITY;
STATEMENT THAT SITE IS A "FACILITY" WITHIN THE MEANING OF
SECTION 101(9) OF CERCLA, 42 U.S.C. § 9601(9).]
8. EPA has a reasonable basis to believe that there may be
a release or -.hreat of release of a hazardous substance or
pollutant or contaminant at rhe facility, within the meaning of
section 101(22) of CERCLA, 42 U.S.C. S 9601(22). [PROVIDE A
-------
4
BRIEF EXPLANATION OF EPA'S KNOWLEDGE OF THE RELEASE OR THREAT OF
RELEASE.]
9. On [DATE], EPA sent [NAME OF DEFENDANT] a request
seeking information and documents, pursuant to section 10- e) of
CERCLA, 42 U.S.C. § 9604(e). A true and accurate copy of this
information request is attached as Exhibit A to this complaint
and is incorporated by reference.
10. The [DATE] information request was authorized by
[NAME], a duly designated employee and representative of the
President under CERCLA, for the purpose of enforcing CERCLA.
Authority under section 104(e), 42 U.S.C. § 9604(e), has been
delegated to the Administrator of EPA by Executive Order No.
12580, 52 Fed. Reg. 2923 (January 29, 1987) and redelegated
pursuant to CERCLA Delegation 14-6 (September 13, 1987) [and
Regional Delegation (DATE)].
11. [NAME OF DEFENDANT] received the [DATE] information
request on [DATE] by certified mail, return receipt requested.
Attached as Exhibit B is a true and accurate copy of the return
receipt signed by on behalf of [NAME OF DEFENDANT]
evidencing that [NAME OF DEFENDANT] received the information
request.
12. [NAME OF DEFENDANT] did not respond to the information
request and did not provide EPA with any of the information or
documents requested. [MODIFY AS APPROPRIATE.] Reasonable
notice was given to [NAME OF DEF'£:.:DANT ] , as it was provided with
-------
5
30 days in which to respond to EPA's information request.
[MODIFY AS REQUIRED.]
13. [NAME OF DEFENDANT] has never submitted to EPA any
justification of its failure to respond to the information
request. [MODIFY OR DELETE AS APPROPRIATE.]
[PARAGRAPHS 14 THROUGH 16 ARE OPTIONAL.]
14. On [DATE], EPA sent a second letter to [NAME OF
DEFENDANT], care of [NAME OF ADDRESSEE], certified mail, return
receipt requested pursuant to section I04(e)(l), 42 U.S.C. §
9604(e) stating that EPA had not received [NAME OF DEFENDANT]'s
response to the information request of [DATE], and again
requesting information relating to the [SITE]. A true and
accurate copy of this letter is attached as Exhibit C to this
complaint and is incorporated by reference.
15. [NAME OF DEFENDANT] received the [DATE] reminder letter
on [DATE]. Attached as Exhibit D is a true and accurate copy of
the return receipt signed by on behalf of [NAME OF
DEFENDANT] evidencing that [NAME OF DEFENDANT] received the
reminder letter.
16. [NAME OF DEFENDANT] did not respond to the reminder
letter and did not provide EPA with any information or documents
requested. [MODIFY AS APPROPRIATE.]
17. [INCLUDE ANY OTHER PERTINENT FACTUAL INFORMATION SUCH
AS TELEPHONE CONVERSATIONS.]
18. The purposes for which EPA sent the [DATE] information
request were to enforce the provisions of CERCLA and to assist
-------
6
in determining the need for response to the release of a
hazardous substance. [MODIFY AS APPROPRIATE.] EPA's information
request was in accordance with law and was neither arbitrary nor
capricious nor an abuse of discretion.
CLAIM FOR RELIEF
19. Paragraphs 1 through 18 are incorporated by reference.
20. Section 104(e) (5 ) (B) , 42 U.S.C. § 9604(e)(5)(B), of
CERCLA authorizes the United States "to commence a civil action
to compel compliance with a request" for information and
documents issued pursuant to section 104(e), 42 U.S.C. § 9604(e)
21. Section 104(e)(5)(B) authorizes the Court to compel
compliance with a request for information and documents; that
section further authorizes a Court to "assess a civil penalty not
to exceed $25,000 for each day of noncompliance" with such a
request for information and documents against any person who
unreasonably fails to provide the information and documents
requested.
22. EPA's demand for information and/or documents was not
arbitrary or capricious or an abuse of discretion, and was issued
in accordance with law. [NAME OF DEFENDANT] violated section
104(e), 42 U.S.C. § 9604{e) by unreasonably failing to provide
the information and documents requested by the [DATE] information
request.
-------
PRAYER FOR RELIEF
WHEREFORE, plaintiff United States of America prays for the
following relief:
1. That the Court issue an order, pursuant to section
104(e)(5) of CERCLA, 42 U.S.C. § 9604(e)(5), directing [NAME OF
DEFENDANT] to comply fully with the information request of
[DATE];
2. That the Court award the United States civil penalties
pursuant to section 104(e)(5) of CERCLA, 42 U.S.C. § 9604(e)(5),
not to exceed $25,000 for each day from [DATE of FIRST VIOLATION]
until the date when the information is finally and completely
provided;
3. That the Court award the United States its costs,
including response costs, under sections 104(b)(l) and 104(e) of
CERCLA, 42 U.S.C §§ 9604(b)(l) and 9604(e); and
4. That the Court grant such further and other relief as it
may deem appropriate.
Respectfully submitted,
Richard B. Stewart
Assistant Attorney General
Land and Natural Resources Division
-------
[NAME]
Attorney, Environmental Enf rcement
Section
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20044
[NAME]
Assistant United States Attorney
OF COUNSEL:
[LIST NAMES OF EPA HQ AND REGIONAL ATTORNEYS]
-------
MODEL LITIGATION REPORT
CERCLA Section 104(e)(2) Actions
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees or
the U.S. Environmental Protection Agency. Such guidance and
procedures do not constitute rule making by the Agency and may
not be relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity, by any person. The
Agency may take action at variance with this guidance and its
internal implementing procedures.
January 12,
-------
MODEL LITIGATION REPORT
CERCLA S£ :ion 104(6)(2) Arfinns
I. Cover Page
II, Table of Contents
III. Synopsis of the Case (Executive Summary)
IV. Statutory Basis of Referral
V. Description of the Site
VI. Enforcement History and Related Litigation
VII. Description of Defendant(s)
VIII. Description of Violations
IX. Anticipated Defenses
X. Relief Sought
XI. Significance of Referral/Major Issues
XII. Litigation Strategy
-------
[This is attorney work
product prepared in
anticipation of
litigation.]
MODEL LITIGATION REPORT
CERCLA Section 104(e)(2) Actions
I. Cover Page
A. Region, statute(s) involved and judicial district.
B. Name of defendant(s) by category (e.g. , owners,
operators, generators, transporters, or other persons
who have failed to comply with the request).
Include names, addresses and telephone numbers of
all proposed defendants in an appendix to the
litigation report. List all other § 104(e) defendants
for this site that the Region is contemplating pursuir.c
with addresses (where available).
C. Name, address and EPA ID Number of facility or
facilities that is/are the subject of the information.
request where available.
Include name, address and telephone number (if
available) of all facilities/sites subject to the
referral. •
-------
D. Regional contacts.
Include names, addresses and telephone numbers of
regional contacts who prepared the report.
E. Stamp date of referral on cover page.
II. Table of Contents
Include headings, subheadings and page numbers.
III. Synopsis of the Case (Executive Summary)
This should be a concise summary describing the site, the
status of the site in the Super fund program, enforcement history
to date, proposed defendants, particulars of the violations
(i.e.. failure to respond or inadequate response, date of
request, date of any follow up requests), significance of the
case and relief sought.
-------
IV. Statutory Basis of Referral
A. Applicable Statute and Elements of Proof
(1) General
This Model Litigation report focuses on § 104(e). EPA
also has authority under RCRA § 3007 to issue and
enforce information requests. The Regions may elect to
invoke RCRA as well as CERCLA in judicial actions to
enforce such authority.
Section 104(6) Of CERCLA, 42 U.S.C. § 9604(e),
authorizes EPA to require that information be provided
to it by any person for the purposes of determining the
need for response, choosing or taking any response
action under CERCLA, or enforcing the provisions of
CERCLA (CERCLA Section 104(e)(D).
This information must relate to: (1) the identification, nature
and quantity of materials generated, treated, stored, or disposed
of at a facility or transported to a facility, (2) the nature of
extent of a release or threatened release of hazardous material
from a facility, or (3) the ability of a person to perform or
for a cleanup (CERCLA Section l04(e»(2M.
-------
Section 104(e)(5)(B) authorizes EPA to commence a civil
action to compel compliance with a request or administrative
order, and to assess penalties.
(2) Elements of Proof
Reference should be made to the "Guidance on Use and
Enforcement of CERCLA Information Requests and Administrative
Subpoenas" (August 25, 1988) to ensure that all proper steps have
been followed in making the information requests. (See pp. 7-
17.) This Guidance also discusses the nature of the evidence
required to support a 104(e) action, including:
1. That the information request was issued by
an authorized person (see EPA Delegation 14-6,
September 13, 1987 ) ;
2. That U.S. EPA has a "reasonable basis to
believe that there may be a release or threat of
release of a hazardous substance, pollutant or
contaminant" at a site or vessel;
3. That the information request was issued for
determining the need or a response or choosing or
taking any response act 10:1 ".nder CERCLA Tit le I,
-------
5
or otherwise enforcing CERCLA Title I, with
respect to the site or vessel;
4. That the respondent was requested to provide
information relating to one or more of the categories
of information identified above (see. Section 104(e)(2)
(A) through (C) ) ;
5. That the respondent did not fully comply with the
request or comply in a timely manner (see, pp. 18-20 of
the "Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas"
(August 25, 1988)).
B. Enforcement Authority; Jurisdiction and Venue
United States District Courts have jurisdiction to enforc^
Section 104(e). See, 42 U.S.C. § 9613(b). Venue may be
determined with reference to 28 U.S.C. §§ 1391(b) and (c) and 42
U.S.C. § 9613(b).
V. Description of the Site
Include a brief discussion of the site location and site
description. Status of the NPL listing and a general description
-------
6
of the environmental problem posed by the site should also be
included.
VI. Enforcement History and Related Litigation
Where applicable, the following information should be
discussed:
1. All contacts (written and oral) with potential
defendants pertaining to the information request.
2. Involvement (with regard to the Site) of State, local
agencies or citizens.
3. Related administrative or judicial actions, and
their status. (Note, however, that pre-existing
litigation is not a prerequisite for filing a I04(e)
action nor does Section I04(e) require
that information requests be issued pursuant to
a pending adjudicatory proceeding.)
VII. Description of Proposed Defendants
The following information should be included in the repor
with respect to each proposed defendant:
-------
1. A brief description of the relationship of the proposed
defendant to the site. (For additional guidance, see.
"Model Litigation Report for CERCLA Sections 106 and
107 and RCRA Section 7003," June 21, 1989.)
2. State of incorporation/principal place of business.
(Include name changes and changes in corporate form.)
3. Agent for service of process. (Include name, address
and telephone number.)
4. Legal counsel, if known. (Include name, address
and telephone number.)
5. Identity of any parent or successor corporations, if
applicable and information available.
6. If defendant is a corporate officer and addressee,
discuss issues of personal liability, if any (i.e. .
corporate officers/managers' personal involvement).
7. Description and evidence of financial viability.
(Where financial viability of a potential defendant
is an issue, financial information will be
important.)
-------
8
Vlii. Description of Violations
State with particularity all information requests and
follow-up letters sent to or telephone calls made to each
proposed defendant and each reply, written or oral, received from
each proposed defendant. Include copies of letters, mail
receipts and telephone/meeting records as attachments. F:>r each
defendant, describe the nature of the violations, including:
1. Evidence supporting a prima facie case (se_e, elements in
IV.A.2.)
2. The number of days that defendant has been in violation.
Explain the basis for calculating that number of days
unless they are calculated from the due date of the first-
request letter.
3. The number of violations for each defendant;
4. The extent and/or materiality of the omissions or
inaccuracies in any partial response;
5. Evidence of bad faith; and
6. Whether the failure to respond caused identifiable
-------
9
harm (such as delaying or impeding settlement
negotiations or enforcement actions, or withholding
information about a hazardous substance or
conditions that might be useful to EPA in making
remedial decisions);
(See. Memo from Edward E. Reich to Regional Administrators,
"CERCLA Section 104(e) Enforcement Initiative," dated September
26, 1989.)
IX. Anticipated Defenses
Discuss any anticipated legal or equitable defenses that may
arise in connection with this action, even if they appear to lack
merit, and proposed responses to such alleged defenses. (Your
assessment of the strength of the defense should be stated in a
brief narrative.) Examples of possible defenses that may be
raised include the following:
1. Privilege claims (attorney-client, or work product
exclusion).
2. Confidentiality claims under § 104(e)(7). This is not
a proper ground for objection, since EPA will treat
as confidential any information subject to a proper
confidentiality claim (see Section 104(e)(7)).
-------
10
3. Constitutional defenses: 5th Amendment and denial of
equal protection. (Note that 104(e) does not require
that U.S. EPA seek information from all PRPs.)
4. The request for information or documents is arbitrary
and capricious, an abuse of discretion or otherwise not
in accordance with law.
5. A good faith effort was made to comply with the
information request.
6. The information requested is not relevant to the
investigation.
This list is not intended to suggest that these defenses are
viable ones.
X. Relief Sought
Both civil penalties and injunctive relief typically will be
sought in an action filed under Sec-ion 104(e)(5)(B). Civil
penalties of up to 325,000 per day for each day of noncompl iance
may be assessed by a court for failure to adequately respond to
an information request letter. The complaint should seek the
full statutory amount for each defendant. Where appropriate,
-------
11
complaint should seek an injunction, including an order to
provide the required information. To the extent possible, the
referral should propose the appropriate relief and penalty amount
to accept in settlement and the basis for these recommendations.
XI. Significance of Refer, ^/Maior Issues
i\ny issues of precedential significance should be raised in
this section, as well as the importance of obtaining the
information to any related litigation. For example, if
defendants' refusal to provide the information requested may
frustrate settlement discussions with other PRPs, this should be
noted.
XII. Litigation Strategy
Questions of strategy should be raised in this section,
including the proposed course of action should the defendant
comply with the information request during the pendency of the
action. Recommendations regarding the timing of filing of a
summary judgment motion, as well as settlement potential, should
also be addressed'.
-------
sr«
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
5 1990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Dir. NO. 9355.4-01
MEMORANDUM
SUBJECT: Guidance on Remedial Actions for Superfund Sites With
PCB Contamination
FROM:
TO:
Superfund Management Review: Rec
Henry L. Longest II, Director
Office of Emergency and Remedi
Bruce M. Diamond, Director-
Office of Waste Programs E
ndation 23
onse
cement
Waste Management Division Directors
Regions I, IV, V, VII, and VIII
Emergency and Remedial Response Division Director
Region II
Hazardous Waste Management Division Directors
Region III, VI, and IX
Hazardous Waste Division Director
Region X
Purpose
The purpose of this memorandum is to transmit for your use
the Guidance on Remedial Actions for Superfund Sites With PCB
Contamination, the associated "Short Sheet", the joint guidance
on Superfund's approach to the Toxic Substances Control Act
(TSCA) anti-dilution provisions, and the guidance prepared by the
Office of Toxic Substances on options for disposing of PCBs at
Superfund sites.
Background
Approximately 12 to 17% of the sites on the National
Priorities List involve PCB contamination. Because this
represents a substantial number of Superfund sites and because
PCB regulations are complicated, the Guidance on Remedial Actions
for Superfund Sites With PCB Contamination was prepared to assist
in streamlining efforts required to develop remedial alternatives
for these sites.
-------
An initial draft "working paper" was circulated for review
in October 1988 and a workgroup meeting was held with Regional
project managers and counsel in December 1988 in conjunction with
the annual PCB seminar sponsored by the Office of Toxic
Substances (OTS). Issues identified at this working session were
discussed and resolved in meetings held in early 1989 between
OERR and OTS. A draft version of the guidance was prepared and
distributed for review in September 1989. Several comments were
received and incorporated. A subsequent issue regarding the
application of the anti-dilution provisions of TSCA to Superfund
actions was identified and several meetings were held in early
1990 that resulted in agreement that these provisions apply to
Superfund decisions prospectively (PCB wastes at Superfund sites
cannot be further diluted in order to avoid the TSCA PCB disposal
requirements) but do not require cleanup levels and technologies
to be selected based on the form and concentration of the
original PCB material spilled or disposed of at the site prior to
EPA's involvement. This issue is discussed in a joint memorandum
from the OSWER and the Office of Pesticides and Toxic Substances
(OPTS) (attached). In conjunction with this joint memorandum the
OTS developed Interim Guidance on Non-Liquid PCB Disposal Methods
to Be Used as Alternatives to a 40 CFR 761.75 Chemical Waste
Landfill (attached).
Following development of guidance on the anti-dilution
issue, the attached Superfund guidance and "short sheet" were
finalized.
Objectives
The objectives of this guidance are to promote a consistent
approach to addressing PCB-contaminated Superfund sites by
highlighting key considerations for effective, efficient remedial
investigations and feasibility studies, outlining possible
approaches for addressing PCB contamination, and describing the
process for developing and evaluating response actions and
selecting a remedy. This document describes the recommended
approach for evaluating and remediating Superfund sites with PCB
contamination consistent with the program expectations as defined
in the NCP and the mandates of CERCLA as specified in the NCP.
This guidance fulfills part of Recommendation 23 of the
Superfund program management review.
-------
If you have questions on this guidance please contact your
Regional Coordinator or Jennifer Haley at 475-6705. Printed
copies of the guidance document will be available in 4 to 6 weeks
and can be obtained by contacting the Publications Office in
Cincinnatti at (513) 569-7562.
Attachments: Guidance on Remedial Actions for Superfund Sites
With PCB Contamination
"Short Sheet" — A Guide on Remedial Actions at
Superfund Sites With PCB Contamination
Joint Memorandum: "PCB Contamination at Superfund
Sites — Relationship of TSCA Anti-Dilution
Provision to Superfund Response Actions"
Interim Guidance on Non-Liquid PCB Disposal
Methods to Be Used as Alternatives to a 40 CFR
761.75 Chemical Waste Landfill
[not available at time of mailing — will be sent
under separate cover]
cc: Superfund Branch Chiefs
Regions I - X
Superfund Section Chiefs
Regions I - X
[printed versions of the PCB Guidance and Fact Sheet will be
distributed to Branch and Section Chiefs when they are
available]
-------
UNITED STATES ENVIRONMENTAL PROTE
WASHINGTON. O.C. 20460
OSWER Directive No.
9835.15
MEMORANDUM
SUBJECT: Performance of Risk Assessments in Remedial
Investigation/Feasibility Studies (RI/FSs) Conducted by
Potentially Responsible Parties (PRPs)
FROM: Don R. Clay^T^'L,
Assistant Administ/a£6r
TO: Regional Administrators, Regions I-X
The purpose of this memorandum is to provide initial
guidance on implementing my recent decision that in the future
EPA will develop all risk assessments for sites remediated under
CERCLA. This directive focuses on the applicability of the
decision to new and existing orders or decrees for RI/FSs
conducted by PRPs. A companion memorandum from the Office of
Enforcement addresses the performance of risk assessments at
Federal facilities.
la essence, EPA or a State (whose oversight of the PRP is
Federally funded) will develop the risk assessment for all new
orders or decrees. For existing orders or decrees that specify
that the PRP prepares the risk assessment, the PRP will be given
an opportunity under the terms of the order or decree to complete
an acceptable risk assessment under stringent oversight and
without undue delay. The term "risk assessment" in this
directive is meant to include environmental assessments as well
as assessments of risks to human health.
Background
As you know, OSWER recently completed a study that, anong
other things, compared remedies selected where the RI/FS was
conducted by PRPs with those where the PI/FS was conducted by EPA
or a State under cooperative agreement with EFA ('-'A Comparative
Analysis of Remedies Selected in the Super fund Program During FY
87, FY 83, and FY 89," June 20, 1900, OSWER Directive 9835.13).
The study revealed that PRP risk assessments tended to need
extensive modifications by the Regions. For this reason I
Prutttd on Rtcycltd Pj/xr
-------
-2-
decided that in the future EPA alone (or a State if its oversight
of the PRP is Federally funded) would develop the risk
assessment. I announced this decision in a hearing before the
Senate Subcommittee on Superfund, Ocean and Water Protection on
June 21, 1990.
I realize that there are many orders and decrees already in
existence for PRP RI/FSs that stipulate that the PRP will develop
the risk assessment. Negotiations are also underway for PRPs to
conduct additional RI/FSs. Therefore, this memorandum explains
how my decision applies to new and existing orders or decrees for
RI/FSs to be conducted by PRPs under CERCLA authority.
Policy for New Orders or Decrees for PRP RI/FSs
Effective immediately, EPA will not enter into any new
orders or decrees for PRP RI/FSs in which risk assessments are to
be conducted by PRPs. That is, new orders or decrees for PRP
RI/FSs must state that EPA (or a State whose oversight is
Federally funded) does the risk assessment, and must not include
risk assessment products or deliverables to be developed by the
PRP. Such risk assessment products, including but not limited to
identification of chemicals of concern, current and future
exposure scenarios, and toxicity information, will be prepared by
EPA. The FS and remedy selection shall be based on EPA's risk
assessment. New orders or decrees should explicitly state that
PRPs will use EPA's risk assessment as the basis of the FS.
This new policy does not change any responsibilities PRPs
may have regarding the collection of site data relevant to the
development of the baseline risk assessment. It is not expected,
nor is it generally necessary, that EPA should independently
collect data from the field in order to be able to develop the
risk assessment. Rather, these data should be provided by the
PRP's normal activities in conducting the RI under EPA oversight
(of course, as part of oversight Regions should continue to
conduct audits, engage in split sampling, etc. to assure the
accuracy of PRP-generated data).
New orders or decrees should stipulate that the PRPs will
pay the co«t3 for EPA (or a State) to develop the risk
assessment.
Policy for Existing Orders or Decrees for PRP RI/FSs
For existing orders or decrees where the PRP is to prepare
the risk assessment, procedures are to be followed to allow PRPs
to complete high quality risk assessments, or alternatively, to
allow EPA to complete risk assessments that PRPs do inadequately
-------
-3-
In implementing this policy guidance, Regions should examine the
specific terms of the order or decree in any given case. If
there appear to be problems in implementing the guidance under
the terms of a particular order or decree, Headquarters should be
consulted.
Within the terms of existing orders or decrees, EPA will
give a PRP an opportunity to complete the risk assessment
correctly. I encourage and expect PRPs to consult with EPA early
and throughout the risk assessment process so they can ensure
that their work is in accordance with the NCP and Agency guidance
and is of high quality. If the risk assessment delivered by the
PRP is unacceptable, even after EPA has provided comments or
after the parties have exhausted other procedural requirements
(such as dispute resolution) as may be provided for in the order
or decree, EPA will undertake its own risk assessment.
Depending on the terms of the order or decree, the Region
may provide comments on drafts of an intermediate deliverable in
those cases where orders require major intermediate deliverables
for the risk assessment; if, after providing comments as required
and pursuing other recourses as may be required under the order
or decree, the intermediate deliverable from the PRP remains
unacceptable, the Region may decide at that point to prepare its
own risk assessment. These procedures will allow EPA to avoid
numerous reviews throughout the development of the risk
assessment, which can be so costly in time and resources.
If the Region determines that the final PRP risk assessment
is fully acceptable, the Region should document this finding in
writing and place the written certification in the Administrative
Record File. Such an explicit certification by EPA of a PRP risk
assessment should help assure the public that EPA is providing
the necessary oversight.
If, on the other hand, a risk assessment is undertaken by
EPA because the PRP's is unacceptable, EPA may use any parts of
the PRP's work deemed to be of high quality. That is, it is not
necessary to duplicate work that the PRP has already done well.
I feel that this approach will eliminate unnecessary
duplication of resources while ensuring that all risk assessments
on which future remedy selections are based will be of the
highest quality.
-------
-4-
Further Implementation Steps
As you are probably aware, the PRP community has expressed
concern about my decision and its effect on their conduct of the
rest of the RI/FS. I recognize that PRPs have some legitimate
issues regarding coordination, scheduling, and accountability. I
have therefore agreed to discuss these particular problems with
PRP groups and other interested parties with the intent of
implementing my decision in the most efficient and least
disruptive way. I will certainly include the Regions as we enter
into these discussions later in the year.
If you have any questions about this policy, please contact
Arthur Weissman, Chief, Guidance and Evaluation Branch, Office of
Waste Programs Enforcement, at FTS 475-6770.
cc: Director, Waste Management Division,
Regions I, IV, V, VII
Director, Emergency & Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, & IX
Director, Hazardous Waste Division,
Region X
Regional Counsel, Regions I-X
Regional CERCLA Branch Chiefs, Regions I-X
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OSWZR Directive
No. 9834. U
29 1990
MEMORANDUM
SUBJECT: Transraittal of Model Consent Decnee for CERCLA
Section 104(e) Information Request Enforcement Actions
FROM: David B. Van
. V_
_
Acting Associate Enforcement Counsel fo^ Superfund, OE
ruce M. Diamond, DirectorL
Office of Waste Programs Enforcement, OSV
TO: Regional Counsel, Regions I-X
Waste Division Directors, Regions I-X
Please find attached a Model Consent Decree developed to
further support the CERCLA § I04(e) Initiative. We appreciate
your assistance in providing comments on the draft Model Consent
Decree and hope that you and your staff will find this Model
Consent Decree useful in the implementation of the Agency's §
104(e) enforcement initiative.
The attached document is intended solely as guidance to
employees of EPA. Such guidance does not constitute rulemaking
by the Agency and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law or in
equity, by any person. The Agency may take action at variance
with this guidance and its internal implementing procedures.
If you have any questions regarding the attached model,
please contact Sally Mozley, Office of Enforcement, Superfund
Division, at 382-3070.
Attachment
cc: James M. Strock, Assistant Administrator for Enforcement
Don Clay, Assistant Administrator for Solid Waste and
Emergency Response
Edward E. Reich, Deputy Assistant Administrator, OE
Scott C. Fulton, Senior Counsel-Civil, OE
Regional Counsel Hazardous Waste Branch Chiefs
Regional Section 104(e) Contacts
David Buente, Chief, Environmental Enforcement Section,
Environment and Natural Resources Division, DOJ
-------
MODEL SECTION 104(e) CQNSFfNT DECREE Date: 6/1/90
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
. DIVISION
UNITED STATES OF AMERICA
Plaintiff, )
) CIVIL ACTION NO.
V. )
)
Defendant. )
)
CONSENT DECREE
I.
BACKGROUND
A. On [DATE], based on the United States Environmental
Protection Agency's ("EPA's") reasonable belief that there may be
a release or a threat of a release of a hazardous substance,
pollutant or contaminant from the Site, [NAME], a duly
authorized representative of the President, mailed an information
request (hereinafter "Information Request"), certified
mail/return receipt requested, pursuant to Section 104(e) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, ("CERCLA"), 42 U.S.C. s 9604(e) [and
Section 3007 of the Resource Conservation and Recovery Act, as
amended, (RCRA) 42 U.S.C. S 6927] to [NAME OF RECIPIENT],
hereinafter "Settling Defendant."
-------
2.
B. EPA issued the Information Request to determine the
need for a response or choosing or taking any response action
under CERCLA, or otherwise enforcing the provisions of CERCLA.
C. The Information Request required the Settling Defendant
to furnish relevant information, upon reasonable notice, relating
to one or more of the following categories:
(1) the identification, nature, and quantity of
materials which have been or are generated, treated, stored, or
disposed of at a facility;
(2) the nature or extent of a release or threatened
release of a hazardous substance or pollutant or contaminant at
or from a facility;
(3) information relating to the ability of a person to
pay for or perform a cleanup;
[(4) information relating to the generation, treatment
storage, or disposal of a hazardous waste.]
D. On [DATE], the United States of America ("United
States"), on behalf of the Administrator of EPA, filed a
Complaint in this matter pursuant to Section 104(e) of CERCLA
[and Section 3007 of the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. S 6927] to enforce the Information Request
alleging that Settling Defendant has failed to comply with the
requirements of the Information Request.
E. In its Complaint, the United States asks:
(l) that the Court issue an order, pursuant to Section 104(e)(5)
of CERCLA, 42 U.S.C. S 9604(e) [and Section 3p08(a) of RCRA, 42
-------
1
U.S.C. § 6928(a)], directing the defendant to fully comply with
the Information Request; (2) that the Court award the United
States civil penalties pursuant to Section I04(e)(5) of CERCLA,
42 U.S.C. § 9604(B)(5) (and Section 3008(g) of RCRA, 42 U.S.C. §
6928(g)) not to exceed $ 25,000 for each day of noncompliance;
(3) that the Court award the United States its costs, including
response costs (if this is averred) under Sections 104(b)(l) and
104(e) of CERCLA, 42 U.S.C. SS 9604(b)(l) and 9604(e); and (4)
such other relief as the Court finds appropriate.
F. The United States and Settling Defendant recognize, and
the Court by entering this Consent Decree finds, that
implementation of this Consent Decree will avoid prolonged and
complicated litigation between the Parties, and that entry of
this Consent Decree is in the public interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II.
JURISDICTION
This Court has jurisdiction over the subject matter of this
action pursuant to 28 U.S.C. SS 1331, 1345; 42 U.S.C. SS 9604,
96l3(b). This Court also has personal jurisdiction over the
Settling Defendant, which, solely for the purposes of this
Consent Decree and the underlying Complaint, waives all
objections and defenses that it may have to jurisdiction of the
Court or to venue in this District. The Complaint states claims
-------
A
against the Settling Defendant upon which relief may be granted.
III.
PARTIES BOUND
This Consent Decree applies to and is binding upon the
United States and upon the Settling Defendant, its employees,
agents, successors and assigns. No change in the Settling
Defendant's corporate or ownership status shall change the
Settling Defendant's responsibility to comply with the terms and
conditions of this Consent Decree. Settling Defendant hereby
waives the defenses of res iudicata, collateral estoppel, and
claim splitting by the United States, with respect to any future
action that may be filed by the United States regarding the Site.
IV.
DEFINITIONS
Unless otherwise expressly provided herein, terms used in
this Consent Decree which are defined in CERCLA shall have the
meaning assigned to them in the statute or its implementing
regulations. Whenever the terms listed below are used in this
Consent Decree or in the Exhibits or Appendices attached hereto
or incorporated hereunder, the following definitions shall apply:
A. "CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. SS 9601 ejL sea.
B. Days shall mean calendar days.
-------
C. "EPA" shall mean the United States Environmental
Protection Agency.
D. "Parties" shall mean the United States and the
Settling Defendant.
E. "Plaintiff" shall mean the United States.
[F. "RCRA" shall mean the Solid Waste Disposal Act, as
amended, 42 U.S.C. §§ 6901 et seq.. (also known as the Resource
Conservation and Recovery Act).]
G. "Response Costs" shall mean those costs incurred by
the United States with regard to this Information Request
including but not limited to those costs incurred by the United
States in drafting, producing, sending, overseeing and enforcing
the Information Request.
H. "Settling Defendant" shall mean .
I. "United States" shall mean the United States of
America.
V.
COMPLIANCE WITH THE INFORMATION REQUEST
[ALTERNATIVE A]
A. Settling Defendant hereby certifies that it has provided
to EPA copies of all documents and information available to it as
requested in the Information Request.
OR
[ALTERNATIVE B]
A. Settling Defendant shall, within thirty (30) days of the
effective date of this Consent Decree, provide to EPA all of the
-------
i
information and copies of all documents available to it as
requested in the Information Request.
B. Settling Defendant may assert a claim of business
confidentiality covering all or part of the information or
documentation developed in connection with this Consent Decree in
the manner described in 40 C.F.R. § 2.203(b). Such claims shall
be supported by documentation when the assertion is made by the
Settling Defendant, in accordance with the requirements of 40
C.F.R. § 2.204(e)(4). Sampling, analytical data or any other
information specified in Section 104(e)(7)(F) of CERCLA, 42
U.S.C. § 9604(e)(7)(F), shall not be claimed confidential by the
Settling Defendant. Information determined to be confidential by
EPA will be made available to the public only in accordance with
the procedures set forth in 40 C.F.R. Part 2, Subpart B. If no
claim of business confidentiality accompanies the information
when it is submitted to EPA, it may be made available to the
public by EPA without further notice to the Settling Defendant.
C. within ten (10) days of compliance with paragraph V.A.,
Defendant shall send to EPA an affidavit certifying that it has
provided EPA with all information available to it in accordance
with the Information Request and Consent Decree.
D. Settling Defendant shall be liable for stipulated
penalties in the amounts set forth in this section for failure to
provide the requested information in compliance with this Consent
Decree. All penalties begin to accrue on the day that complete
performance is due, and continue to accrue through the final day
-------
of noncompliance.
E. All penalties owed to the United States under this
section shall be payable within thirty (30) days of receipt of
notice that the United States has not received the information in
accordance with the requirements of the Consent Decree. Such
payment shall be in the form of a certified check made payable to
the "EPA Hazardous Substances Superfund," and reference CERCLA
Number fSite/Spill Number! and DOJ Case Number . Settling
Defendant shall send the certified check by certified mail,
return receipt requested, to [Insert appropriate Regional
Superfund Lockbox number and address].
F. If Settling Defendant fails to pay the stipulated
penalties, the United States may institute proceedings to collect
the penalties, as well as late charges and interest. However,
nothing in this section shall be construed as prohibiting, or
altering, or in anyway limiting the ability of the United States
to seek any other remedies or sanctions available by virtue of
Settling Defendant's violation of this Decree.
G. The following stipulated penalties shall be payable per
day to the United States for failure to provide the information
in accordance with the Consent Decree:
Penalty Per Violation
Per Day
$
$
$
Period of Noncompliance
1st thru 14th Day
15th thru 30th Day
31st and beyond
-------
8.
VI .
PENALTIES
A. Settling Defendant shall pay a civil penalty of $
within thirty (30) days of the effective date of this Consent
Decree. This payment shall be in the form of a certified check
made payable to "EPA Hazardous Substances Superfund," and
referencing CERCLA Number fsite/Spill Number! and DOJ case
Number . Settling Defendant shall send the certified check by
certified mail, return receipt requested, to [Insert appropriate
Regional Superfund LocJcbox number and address].
B. Copies of check(s) sent pursuant to this Section and any
accompanying transmittal letter(s), shall be sent simultaneously
to the United States as provided in Paragraph IX (Notices and
Submissions).
C. In the event that the payments required by this Section
are not timely made, the Settling Defendant shall pay interest on
the unpaid balance at the rate established by the Department of
Treasury pursuant to 31 U.S.C. s 3717 and 4 C.F.R. s 101.13.
Settling Defendant shall further pay (1) a handling charge of one
(1) percent at the end of each thirty-day late period, and (2) a
six (6) percent per annum penalty charge, to be assessed if
Settling Defendant has not paid in full within ninety (90) days
after the payment is due. Payments made under this paragraph
shall be in addition to such other remedies or sanctions
available to Plaintiff by virtue of Settling Defendant's failure
to make timely payments under this Section.
-------
i
VII.
A. Within thirty (30) days of the entry of this Consent
Decree, the Settling Defendant shall:
a. Pay to EPA $ in the form of a certified
check or checks made payable to "EPA Hazardous Substances
Superfund," and referencing CERCLA Number FSite/Spill ID Number!
and DOJ Case Number , in reimbursement of response costs
incurred by EPA regarding this matter. The certified check(s)
shall be sent by certified mail, return receipt requested to
[Insert appropriate Regional Superfund Lockbox number and
address].
B. Copies of check(s) paid pursuant to Section VII and any
accompanying transmittal letter(s), shall be sent simultaneously
to the United States as provided in Paragraph IX (Notices and
Submissions).
C. In the event that the payments required by this section
are not timely made, the Settling Defendant shall pay interest on
the unpaid balance from the date such payment(s) is/are due at
the rate specified for interest on investments of the Hazardous
Substances Superfund. Payments made under this paragraph shall
be in addition to such other remedies or sanctions available to
Plaintiff by virtue of any failure of Settling Defendant to make
timely payments under this Section.
-------
ifi
VIII.
EFFECT OF SETTLEMENT
A. The United States and the Settling Defendant agree to
entry of the Consent Decree to settle the claims made by the
United States against Settling Defendant in the complaint filed
in this action on [DATE].
B. The United States shall have the right to reopen this
Consent Decree or, if it deems it appropriate, to institute a new
and separate action to recover additional Response Costs for the
claims made in the complaint in this matter if the United States
obtains evidence that the information or representations of the
Settling Defendant as described in said affidavit is false or, in
any material respect, inaccurate. The right shall be in addition
to all other rights and causes of action, civil or criminal, the
United States may have under law or equity in such event.
IX.
NOTICES AND SUBMISSIONS
Whenever, under the terms of this Consent Decree, written
notice is required to be given or a submission is required, the
notice or submission shall be directed to the individuals at the
addresses specified below, unless those individuals or their
successors give written notice of a change to the other parties
by certified mail, return receipt requested. Written notice to
the individuals at the addresses specified below shall constitute
complete satisfaction of any written notice requirement of the
-------
11
Consent Decree with respect to the United States, EPA, and the
Settling Dendant.
As to the United states:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Re: DOJ #
[Name]
Assistant Regional Counsel
United States Environmental Protection Agency
Region
As to EPA;
Director, Waste Management Division
United States Environmental Protection Agency
Region
[Name]
EPA Project Coordinator
United States Environmental Protection Agency
Region
As to the Settling Defendant:
[Name]
Settling Defendant's Project Coordinator
[Address]
-------
12
x.
EFFECTIVE DATE
The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court. The
provisions of this Consent Decree shall terminate and be deemed
satisfied upon the Settling Defendant's receipt of written notice
from the United States that the Settling Defendant has
demonstrated to the satisfaction of the United States that all
the terms of this Consent Decree have been completed and response
costs and penalties have been paid.
XI.
RETENTION OF JURISDICTION
This Court will retain jurisdiction for the purpose of
enabling any of the Parties to apply to the Court at any time for
such further order, direction, and relief as may be necessary or
appropriate for the construction or modification of this Consent
Decree, or to effectuate or enforce compliance with its terms.
XII.
MODIFICATION
No modification shall be made to this Consent Decree
without written agreement of the Parties and approval of the
Court. No oral modification of this Consent Decree shall be
effective. Nothing in this paragraph shall be deemed to alter
the Court's power to supervise this Consent Decree.
-------
II
XIII.
SIGNATORIES'
The undersigned representative of the Settling Defendant
and the Assistant Attorney General for the Environment and
Natural Resources Division of the Department of Justice certifies
that he or she is fully authorized to enter into the terms and
conditions of this Consent Decree and to execute and legally bind
the Settling Defendant and the United States, respectively, to
this document.
FOR THE UNITED STATES OF AMERICA
Date:
[Name]
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[Name]
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[Name]
Assistant United States Attorney
District of
U.S. Department of Justice
[Address]
-------
[Name]
Regional Administrator, Region
U.S. Environmental Protection
Agency
[Address]
[Name]
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region
[Address]
FOR COMPANY, INC.
[Name, Position, Address]
SO ORDERED THIS DAY OF . , 19 .
United States District Judge
-------
STATEMENT
OF
JAMES M. STROCK
ASSISTANT ADMINISTRATOR FOR ENFORCEMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
SUBCOMMITTEE ON POLICY, RESEARCH AND INSURANCE
OF THE
COMMITTEE ON BANKING, FINANCE AND URBAN AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
Washington, D.C.
September 27, 1990
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to testify concerning the
impact of hazardous waste cleanup liability on the insurance
industry. The focus of my testimony is on those aspects of EPA's
Superfund enforcement program which are relevant to insurance
issues.
Summary of Major Points
The central emphasis of EPA's Superfund enforcement program
is on increasing the proportion of cleanups undertaken by private
parties. In fact, at the direction of EPA Administrator Reilly
in his Superfund Management Review, the Agency has brought an
"enforcement first" philosophy to the Superfund program. Using a
broad range of administrative and legal enforcement tools
provided by the Superfund statute, the Agency has made
-------
substantial progress in reaching its objectives in this regard.
Typically, when private parties clean up a site, the government
is largely made whole. The Agency also has met with success in
obtaining cash payments "up front" from liable parties in
satisfaction of EPA's cost recovery claims.
The Agency has had little involvement in issues relating to
wheth&r insurance coverage is available to liable parties. We
view coverage issues as questions of private contract
interpretation governed by state law. Where we have participated
in litigation involving insurance issues, we have proceeded
judiciously and where it was necessary to do so to protect the
interests of the United States. We expect that this will
continue to be our approach.
Overview of Superfund Authorities and Enforcement Program
Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA") in 1980, and amended
it by the Superfund Amendments and Reauthorization Act of 1986
("SARA") (together, "Superfund" or "CERCLA"), primarily'to
strengthen the government's authority to deal effectively with
the problems of the release of hazardous substances, pollutants
and contaminants into the environment. The statute authorizes
EPA to take direct "response" actions to abate actual or
threatened releases of hazardous materials, and created the
-------
3
Hazardous Substance Superfund to pay for the federal government's
response actions. CERCLA also empowers the United States to seek
injunctive relief from a court or issue administrative orders to
abate an imminent and substantial endangerment caused by the
release of hazardous substances. Finally, CERCLA authorizes the
government to bring cost-recovery actions against responsible
parties to recover funds that the government has spent in
performing response actions.
In section 107 of CERCLA, Congress identified which parties
are liable under the statute. They include, generally, current
facility owners and operators; facility owners and operators at
the time of disposal; transporters of hazardous substances who
select the disposal site; and generators of hazardous substances.
The courts have found that liability under CERCLA is strict
and, where harm is indivisible, joint and several. It has been
our experience that this liability scheme is a critical part of
the Superfund enforcement program. Joint and several liability
serves as an effective incentive to enlist private parties in the
enforcement process. It also encourages responsible parties to
work together to negotiate cleanup agreements with the
government.
The Superfund liability scheme also allows responsible
parties to bring other liable entities into the process through
-------
4
contribution actions, and ultimately assures that all viable
parties potentially responsible for the site will share the costs
of cleanup. Many responsible parties prefer to settle with the
government for cleanup or costs, due in part to the exposure
joint and several liability provides.
The government's enforcement program proceeds from two
fundamental premises. First, that sites should be cleaned up as
quickly as possible, utilizing appropriate priority schemes; and
second, that those who are responsible for contamination should
pay to clean it up.
Therefore, the Superfund enforcement program is designed to
provide maximum incentives for responsible parties to come
forward promptly to clean up the hazardous waste sites in which
they have been involved. The thrust of the program is to lead
private parties to negotiate and come to terms with EPA in the
first instance, and so avoid prolonged litigation to compel
private parties to clean up sites or repay the government its
cleanup costs.
Under the statute and the standard of joint and several
liability, the government considers any responsible party a
candidate for inclusion in a response or cost recovery action
which the United States may institute. Our objectives are to
obtain from responsible parties a complete site cleanup or 100%
-------
of response costs.
Dimensions of the Cleanup Problem; Enforcement Results
The scope of the cleanup problem that CERCLA is intended to
address is enormous. The National Priorities List (or "NPL"),
EPA's list of the potentially most serious sites, includes about
1,200 sites today, and is projected to list about 2,100 sites in
the year 2000.
The overall cost of remediating an NPL site is estimated for
planning purposes today to average $29 million per site. This
figure includes, among other things, expenditures for site
discovery and investigation; hazard ranking and listing on the
NPL; sampling efforts and laboratory analysis; investigation of
appropriate remedies; and technical assistance to those involved
in cleanup actions; as well as the actual on-site remedial
response itself. This estimate does not include, among other
things, enforcement costs or indirect costs, such as those for
program support, or operation and maintenance of remedies.
Through the efforts of the EPA and the Department of
Justice, the United States has been successful in obtaining
private party cleanups of hazardous waste sites. Our preliminary
estimates show that, through enforcement settlements and orders,
-------
6
the value of commitments EPA has obtained to date for cleanup
work by responsible parties totals about $3.9 billion. Costs
recovered to date for cleanup actions undertaken by the United
States total about $432 million. So far in fiscal year 1990
alone, we have obtained commitments for work or cost
reimbursement worth almost $860 million, or about 20% of the
total. In fiscal year 1989, we obtained commitments for work or
cost reimbursement worth over $1.1 billion. EPA's preliminary
projection for overall responsible party contribution to
Superfund for fiscal year 1990 through fiscal year 1993 — that
is, commitments by responsible parties for work and cost
reimbursement — ranges from $4.2 billion to $4.9 billion.
Superfund Enforcement as it Impacts Insurers
Historically, the government's participation in litigation
involving insurance for response costs has been limited. There
are both legal and practical reasons for this.
The Superfund enforcement program is achieving significant
recoveries. In particular, we are making very substantial
progress in meeting our objective of significantly increasing the
proportion of cleanups undertaken by private parties.
The Agency has largely left questions concerning the extent
to which insurance coverage will fund Superfund cleanups to
-------
7
private parties to resolve. The Agency believes it is a matter
of state law whether or not potential or actual Superfund
liabilities trigger insurance coverage. The question whether an
insurer is required to indemnify its insured against Superfund
liability turns on the interpretation of the private insurance
contract entered into by those parties; typically, the
Comprehensive General Liability ("CGL") insurance policy is the
instrument used to protect commercial entities against various
types of liability. Although CERCLA provides that certain
categories of parties are to be held liable for hazardous
substance contamination, the statute leaves the interpretation of
insurance policies to state law. No special rules apply when
construing insurance policies merely because the underlying
liability arises as a result of CERCLA.
Therefore, the dimensions of the impact of CERCLA liability
on insurers will be determined by state and federal judges, as
they interpret state laws in private contract disputes between
insurers and their insureds over the coverage of CGL or other
relevant policies. These disputes often will concern the meaning
and scope of the so-called "pollution exclusion" clauses found in
many CGL policies since the early 1970's, by which insurers have
sought to limit the coverage of their policies, or will turn on
the legal construction of other terms in the private insurance
contract. The law on these issues is unsettled in most states,
and coverage inescapably turns on interpretation of individual
-------
8
policies and the factual circumstances underlying the coverage
claim.
EPA believes it has been judicious in its approach to
insurance coverage issues. Indeed, since CERCLA's enactment, the
United States's participation in litigation involving insurance
for response costs has been quite limited.
Among the hundreds of Superfund enforcement cases handled by
the Agency, in only five instances has the United States
participated in litigation addressing the availability of
insurance for CERCLA remediation. On three of those occasions
the United States has participated as an amicus curiae in cases
involving coverage for environmental remediation in order to
express our views on matters of insurance contract
interpretation.
In Continental Insurance Cos, v Northeastern Pharmaceutical
& Chemical Co. ("NEPACCO"), No. 84-5034-CV-S-4 (W.D. Mo. 1985),
the insurer had sought a declaratory judgment that there was no
liability insurance coverage under the CGL policies at issue for
response costs which the government sought to have reimbursed by
the insured, NEPACCO. The government participated as an amicus
curiae in the appeal of the district court's decision, which
found that the government's response costs do not fall within the
coverage of the CGL policies at issue. The government as amicus
-------
9
argued that response costs, incurred by the government pursuant
to CERCLA and sought to be recovered from NEPACCO, constitute
"damages" under Missouri law within the meaning of the CGL
policies at issue in that case, and so come within the coverage
of those policies. The U.S. Court of Appeals for the 8th
Circuit, in Continental Insurance Cos, v. Northeastern
Pharmaceutical & Chemical Co. ("NEPACCO"), 842 F.2d 977 (8th Cir.
1988), held that "damages" do not include CERCLA response costs.
The United States also filed an amicus curiae brief in the
Jones Truck Lines v. Transport Insurance Co.P No. 89-1729 (3d
Cir., April 17, 1990) Cert. Question to Mo. S. Ct., No. 72650, in
order to urge the Missouri Supreme Court to rule on a similar
question under Missouri law: whether Superfund cleanup costs
expended directly by the insured in a government-mandated cleanup
are covered as "damages" under standard form CGL policies. Jones
Truck Lines ("Jones") purchased a site in Missouri on to which
NEPACCO's dioxin-containing waste had been sprayed. Jones
cleaned up the site and brought an action against its insurer to
recover its cleanup costs. The government as amicus informed the
Missouri Supreme Court of its belief that the Eighth Circuit
incorrectly interpreted Missouri state law to exclude Superfund
remediation costs from coverage within the terms of such policies
as those at issue in the NEPACCO litigation.
1 In July, 1990, the Missouri Supreme court issued an order
by which it declined to accept the question certified by the
Jones Truck Lines court on the ground that the Missouri statute
-------
10
The Missouri insurance law question is crucial to the United
States' ability ultimately to recover fully a judgment in a
related case, United States v. Bliss. 667 F. Supp. 1298 (E.D. Mo.
1987), which held Independent Petrochemical Corporation (IPC)
liable for response costs incurred by the government at six
dioxin sites in Missouri. The response costs sought in Bliss
amounted to more than $1.5 million. The United States' response
costs for all the dioxin sites in Missouri are much higher.
IPC currently is engaged in litigation with its insurer
concerning insurance coverage for this liability, and the
Missouri state law issue is central to the disposition of this
litigation. (See Independent Petrochemical Corp. v. The Aetna
Casualty & Surety Co., C.A. No. 83-3347 (D.D.C. 1988), appeal
pending, No. 89-5368 (D.C. Cir).) The government recently filed
an amicus brief in the IPC litigation similarly urging that the
Missouri law question be certified to the Missouri Supreme Court.
While legal theories may exist under particular state laws
for the government to pursue insurers by way of subrogation or
assignment of rights, these avenues have rarely been used,
especially since they involve, primarily, state court proceedings
interpreting questions of state law. Under the principle of
authorizing certification of the question to the Missouri Supreme
Court is unconstitutional under the Missouri State Constitution.
-------
11
subrogation, if an insured responsible party defaults on its
CERCLA obligations under a court judgment or consent decree, the
government may have authority under state law to succeed to the
insured's rights under its policy against its insurer.
One case in which the government has exercised such rights
arose in connection with the NEPACCO litigation. As NEPACCO's
judgment creditor, the United States initiated a garnishment
action in the district court for the Western District of Missouri
against the Continental Insurance Company seeking the insurance
proceeds which were the subject of the Continental Insurance Cos.
v. NEPACCO coverage dispute. This action ultimately was
dismissed pursuant to the Eighth Circuit's decision that NEPACCO
was not entitled to coverage.
As to our experience with assignments, we are aware of one
case in which the United States has accepted assignments of
insurance claims pursuant to settlements with responsible
parties. In United States v. Baird & Mcguire et al.. No. 83-
3002-4 (D. Mass. 1983), the United States received $900,000 from
the insured responsible party and, as part of the settlement,
accepted assignment of the responsible party's insurance claims
^ The garnishment action, United States v. Continental
Insurance Cos.. No. 85-3069 (W.D. Mo. 1985), was brought pursuant
to Section 379.200, Mo. Rev. Stat., which provides that a
judgment creditor is entitled to bring suit in equity against the
judgment debtor and its insurers if the judgment is not satisfied
within thirty days of being rendered.
-------
12
against Ambassador Insurance Company in settlement of
approximately $2.5 million in past response costs and
significantly greater anticipated future costs. Recently we
reached a settlement with Ambassador in a Vermont proceeding
pursuant to which the carrier is undergoing dissolution.
The government also has had some experience in Superfund
enforcement litigation with.insurers of responsible parties who
decide themselves to participate in settlement negotiations and
in settlements. This too has occurred infrequently, and the
government has not isolated this category of activity for special
monitoring.
To conclude, it continues to be our intention to leave the
evolution of insurance law to its traditional forum — the state
courts and legislatures. Our overarching goals under CERCLA are
to secure private party cleanups and to recoup as much as
possible for the Fund. Cost allocation issues, including
insurance coverage, are properly left largely to the private
sector to work out among the various interests in the state
courts.
I appreciate your consideration of our testimony, and
would be happy to answer any questions you may have.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
*/. ..<-
OCT I 2 1990
MEMORANDUM
SUBJECT: Pre-Referral Negotiation Procedures for
Superfund Enforcement C^ses
FROM: James M. StropJo ^
Assistant Administrator for Enforcement
and Compliance Monitoring
Don R. Clay
Assistant Administrator for ^olid Waste
and Emergency Response
TO: Regional Administrators, Regions I-X
This memorandum sets forth procedures governing pre-
referral settlement negotiations for cases arising under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) for which a settlement by judicial consent
decree will be sought. The pre-referral process is patterned
largely after that established for other EPA-administered
statutes by a March 9, 1988 letter from Thomas Adams to Roger
Marzulla. The procedures have been modified here to 1) be
consistent with the special negotiations timeframes contained in
CERCLA and implementing guidance, and 2) reflect the unique
challenges and complexities posed by Superfund negotiations. The
procedures are hereby required for negotiating agreements for
privately-financed remedial activities, but are optional for
settlements addressing removals, remedial investigations/
feasibility studies (RI/FSs) or cost recovery and de minimis
settlements where the settlements will take the form of a
judicial consent decree.1
The objective of these procedures is to quicken the pace of
achieving settlements and improve the quality of settlements
obtained by establishing a regular settlement decisionmaking
process for the United States. This will be accomplished by
assuring that Regions, Headquarters and the Department of Justice
(DOJ) are all appropriately incorporated into case planning and
1 Procedures applicable to administrative settlements under
Sections I22(h)(l) (cost recovery) and (g) (4) (de mj.nimisl of
CERCLA will be addressed in a separate guidance.
-------
case manage««nt activities at an early stage of the settlement
process. Th««« procedures are not intended and do not in fact
expand the scope of Headquarters authority to concur on
settlements. Rather, they establish procedures to be used
uniformly for remedial design/remedial action (RD/RA) pre-
referral negotiations and to be used at the option of the Regions
in the context of other settlements governed by these procedures.
These procedures complement the increased use of site
management planning by Regions.2 Improved site management
planning will be of great value toward accomplishing these
objectives.3 These procedures also will help assure the
satisfactory progress of cases to litigation to the extent that
settlement cannot be reached in a timely manner. The timelines
in Attachments A and B set out the expected timeframes for
accomplishing settlement or initiating litigation to ensure that
sites are not bogged down in moving toward cleanup and cost
recovery.
The decentralization of the Superfund enforcement program
places a premium on "front-end" coordination and cooperation.
Pre-referral consultation and planning is the surest way to avoid
intra-governmental disagreements arising after an issue has been
the subject of negotiations and the respective positions of the
parties have hardened.
Headquarters' role in the pre-referral negotiations process
will correspond to Headquarters' revised settlement authorities
under Delegations 14-13-B and 14-14-E, pertinent aspects of the
guidance concerning the direct referral of cases to DOJ and the
guidance concerning the involvement of OECM attorneys in cases.4
Under the revised settlement authority, Headquarters retained
concurrence authority for settlements of cases involving issues
of national or precedential significance. In accordance with the
revised settlement authorities, Headquarters' participation in
2 Methods for site management planning are described in the
January 5, 1989 draft transmitted from OWPE entitled:
"Transmitted, of th« Final Report and Work Products of the
Superfund Enforcement Management Issues Work Group."
3 Th« "90-Day Study" recommends institution of site
management planning in the Regions, allowing for Regional
flexibility for th« level of detail.
4 See. Revision of CERCLA Civil Judicial Settlement
Authorities Under Delegations 14-13-B and 14-14-E from Thomas L.
Adams, dated June 17, 1988; Expansion of Direct Referral of Cases
to the Department of Justice from Thomas L. Adams, dated January
14, 1988; and Criteria for Active OECM Attorney Involvement in
Cases from Thomas L. Adams, dated May 2, 1988.
-------
pre-referral negotiations and the focus of its comments on the
pre-referral litigation reports which are part of these
procedure* will be primarily on those issues of "national
significance."
More specifically, Headquarters will have an opportunity for
timely review and comment on all pre-referral litigation reports
submitted by the Regions. This practice will allow Headquarters
to monitor national enforcement activities and trends to help
keep national managers informed and to help ensure national
consistency in Superfund enforcement. Note again, however, that
these procedures in no way alter HQ or Regional authorities under
existing delegations of Superfund settlement authority.
Irrespective of Headquarters' role, DOJ must approve all
judicial consent decrees. Thus, early involvement of DOJ in
these types of cases is critical in order to avoid delay in
approving a consent decree or in commencing litigation against
non-settling parties.
We appreciate your efforts to test the effectiveness of
these procedures. EPA and DOJ will track performance under these
protocols and help determine where any problems may arise,
including timetables that may be unworkable in practice. The
success of the procedures in expediting settlement will be
reviewed after the first year of implementation by the Regions.
We will fine-tune these procedures as necessary to reflect new
guidance, any revised delegations, and most importantly, lessons
learned through the use of the process outlined in the following
pages.
-------
PROCESS FOR CONDUCTING PRE-REFERRAL
SETTLEMENT NEGOTIATIONS IN CEECLA ENFORCEMENT CASES
I. Scope and Purpose
Under this guidance, these procedures are hereby required
for all judicial settlements providing for privately-financed
remedial activities, and are optional for all of the remaining
types of settlements if they are embodied in a judicial consent
decree, including Section 107 cost recovery, removal, RI/FS and
Section 122(g) de minimis. The purpose of these procedures is to
assure a timely and thorough dialogue on negotiation strategy
among all major parties prior to the Regional decision to issue
Special Notice.
II. Initiating the Process
A. Initial Contact by Submission of SCAP
Each Region should provide DOJ and Headquarters (HQ) with a
Superfund Comprehensive Accomplishment Plan (SCAP) printout or
equivalent listing on a quarterly basis which details all cases
for which they plan to commence negotiations, including when such
negotiations are expected to commence in the next two quarters
(i.e.. within which quarter). This will provide DOJ with lead
time to plan and allocate its attorney resources. The SCAP
should be sent to the Chief of the Environmental Enforcement
Section (DOJ) and copies sent to the Associate Enforcement
Counsel for Superfund (OE) and the Director of the CERCLA
Enforcement Division (OWPE). At the same time, the Region may
submit any of the documents listed in Section III.B below that
are available, so that DOJ and HQ can begin to review existing
information about the site.
B. Submission of Pre-Referral Litigation Report and Draft
Consent Decree
For all RD/RA settlements subject to these procedures, the
Region is required to send simultaneously to OE, OWPE, and DOJ a
"pre-ref«rral litigation report" and a draft consent decree as
discussed in Section III below 60 days prior to submitting a
draft consent decree to PRPs. For the remaining types of
settlements subject to these procedures (i.e.. cost recovery,
RI/FS, removals and de minirois) the Region may submit a pre-
referral litigation report and draft consent decree
simultaneously to OE, OWPE and DOJ within the same timeframe as
noted above for RD/RA settlements. In either circumstance, the
report should be signed by both the Regional Counsel and the
Waste Division Director and directed to the DOJ, OE, and OWPE
-------
contacts noted in paragraph II.A above. The Regions should
address DQJ's comments (and HQ's comments consistent with
existing eettlement delegations) provided pursuant to Section IV
below, prior to submitting the draft consent decree to PRPs.
C. OE's computer DOCKET system should be used to track
these cases as "pre-referral negotiation cases" at the same time
the Region sends its pre-referral litigation report to HQ and
DOJ. At this stage, the lead Regional attorney should enter the
case into the docket as an "opened" case.
III. Contents of the Pre-Referral Litigation Report and Draft
Consent Decree
A. The pre-referral litigation report should include a
brief (e.g.. 10-15 pages, exclusive of attachments) summary and
analysis of the case, including the items listed below, and
recommend a case management strategy. Much of the information
which should be included in the pre-referral litigation report
will already be in the Region's possession. To the extent that
the required information is contained in an existing document,
the Region may submit that document as a substitute in order to
prevent duplication of effort, provided that the pre-referral
litigation report provides a precise citation to the relevant
passage of the substitute document. If DOJ or HQ desires
information in addition to that provided by the Region in the
pre-referral litigation report DOJ/HQ will request such
information. Otherwise, the report should contain a succinct
narrative which provides the following information:
1. Description of the site, summary of site history,
including past and projected future response actions,6
whether the site is an EPA or State lead site, whether
any party has conducted any response action at the
5 As an alternative to submitting a pre-referral litigation
report at the start of this process and a full litigation report
later on if negotiations do not succeed in producing a timely
settlement, a Region may choose instead to file a full litigation
report at the mtart of the pre-referral process and supplement
that with * aiaple referral memo from the regional Administrator
(RA) in thm event that a referral for litigation without a
settlement i« necessary. In either case, all full litigation
reports nu»t be accompanied by (or in the case of a full
litigation report at the pre-referral stage, be followed by) a
referral memo signed by the RA formally referring the case to
DOJ.
6 The site description and history may be provided by
attaching a community relations sheet or excerpt from the
Remedial Investigation.
-------
- 6 -
•ite, any related settlements, and history and status
of negotiations.
2. An identification of PRPs, past issuance of notice
letters and contacts, financial viability, and
evidentiary strength. The report will include
attachments comprising the list of PRPs given general
notice (with dates) and the special notice lists of
names and addresses, volume and nature of substances
contributed by each PRP and volumetric ranking. If the
special notice lists have been provided to PRPs, so
indicate (with the dates). Summarize other contacts
with PRPs; identify, to the extent possible, bankrupt
and insolvent PRPs and report on the status of ongoing
or concluded bankruptcy or insolvency proceedings;7
identify de minimis PRPs and any federal, state or
municipal governmental PRPs; and assess the strength of
the evidence and the extent to which and how PRPs are
organized. (Apart from the attachment lists, this
section should be two to four paragraphs in length with
a major emphasis on whether the evidence linking a
critical mass of PRPs to the contamination at the site
is sufficient. PRPs can be discussed by class, i.e..
generators, transporters, owner/operators.)
3. A brief discussion of noteworthy legal defenses,
equitable considerations, or other difficulties in
establishing liability (e.g.. divisibility of harm
questions).
4. Any statute of limitations or bankruptcy court
deadlines.
5. A summary of response costs/obligations. A SPUR report
will be included, and supplemented by a statement of
indirect costs, pre-judgement interest and enforcement
costs, including identification of possible "soft"
costs (i.e.. costs that may be difficult to prove) and
a description of the status of compilation and indexing
of the coat documentation. Past demand letters and
their recipients will be identified, along with
associated response activity and dollars demanded.
6. Status of compilation and indexing of the
administrative record and placement of a record file
near the site.
7 Where available, the Region should provide information,
if not compiled in the PRP Search Report, relating to each PRP's
ability to pay, including insurance coverage, and for insolvent
or bankrupt PRPs, the liability of related corporations (e.g..
parents and successors).
-------
- 7 -
7. Identification of the ROD (or the most recent version
of the draft ROD or proposed plan if the ROD is not yet
issued), which will be an attachment for informational
purposes, and discussion of significant remedy issues,
such as public, state or local government, or PRP
opposition to the proposed plan or chosen remedy, if
known.
8. Contacts, if any, with natural resource damage
trustee(s) and the state.
9. A brief description of related criminal investigations
or prosecutions or civil actions, if any.
10. Proposed pre-referral settlement strategy which sets
forth the broad objectives of settlement, covering in
general terms the relief the government should seek and
the parties who should be involved. The pre-referral
litigation report should identify settlement approaches
which will be used to achieve the objectives, e.g. . djj
minimis agreements, mixed funding, NBARs, unilateral
administrative orders, etc. To the extent available,
information should be provided on the state role in
negotiations and plans for addressing recalcitrants, if
any, upon successful conclusion of negotiations with
settlers.
11. A discussion of legal, policy or other issues or
strategic considerations of primary importance to the
government.
12. A brief description of special needs for HQ and DOJ
support beyond what is required by these pre-referral
negotiation procedures.
B. The pre-referral litigation report should also provide
the following supporting material, where available and, if not
already provided pursuant to Section II.A above: PRP search
report and list of PRPs by class (i.e.. generators, transporters,
owner/operators); waste-in list, NEAR, or other PRP ranking, the
demand letter and list or description of addressees, sample
notice letter and recipient list, a summary of administrative
discovery (including information requests, subpoenas, and
answers ), FS, and ROD (including responsiveness summary) or, for
9 Copies of information reports and answers need only be
provided to DOJ upon request. If there are more than 20 PRPs at
the site, the Region need only submit the request to or answers
by the major PRPs. If that number is also greater than 20, the
(continued...;
-------
- 8 -
informational purposes, the most recent version of the draft ROD
or proposed plan. If any of these supporting materials requested
by DOJ/HQ are not available at the time the pre-referral
litigation report is submitted, the supporting material should be
forvarded as -soon as it becomes available. The Region should
submit a copy of the administrative record index for the response
selection prior to the lodging of a settlement.
C. As discussed, a draft consent decree to be used to open
negotiations must accompany the pre-referral litigation report.
While a draft Statement of Worfc (SOW) may not be available at the
time of the pre-referral, it is preferable to have a draft SOW
available for simultaneous review with the draft consent decree,
especially in those cases involving a complex remedy. Regions
should rely on model consent decree (and model SOW) language.
IV. HQ/DOJ Review of the Pre-Referral Litigation Report and
Approval of the Draft Consent Decree
As soon as possible, but at least within 30 days10 of
receipt of a complete pre-referral litigation report, DOJ and HQ
will provide to the Region written comments, or comments by
telephone and later confirmed in writing. Written comments may
be in the form of text markings or marginal notes on the
litigation report and draft consent decree. In all cases,
commentors must clearly identify and explain any concerns they
regard as absolutely requiring resolution prior to Regional
issuance of Special Notice. In general, this requires that
Headquarters identify the nationally significant or precedential
issue and/or DOJ identify the issue as being of such legal
significance that it cannot be resolved at a later time.
For cases which will require HQ's concurrence, written
comments will be provided by the Associate Enforcement Counsel
(AEC) of OE and the Division Director of OWPE. For all other
cases, comments will be provided by OE and OWPE delegatees of the
AEC and Division Director, respectively. Where it is deemed
appropriate by HQ's staff, significant issues will be elevated to
the AEC or Division Director level. In all cases, comments by
DOJ will be provided by an Assistant Section Chief or Senior
Attorney of the EES.
HQ's and DOJ's comments will address, among other issues,
the level of HQ's participation in the negotiations, terms of
settlement (including comments on the draft consent decree), a
9(...continued)
Region need only submit a sample information request and
recipient list.
10
All time periods are in calendar days.
-------
- 9 -
further contact point, and the proposed negotiation strategy as
set forth in the pre-referral litigation report.11
If applicable, comments should address whether unique
circumstances, "in a case indicate that the proposed pre-referral
settlement negotiation strategy is not appropriate for the case.
The Regions should address HQ's comments, where HQ has
concurrence authority, and for other cases, are encouraged to
consider HQ comments and then proceed with negotiations as deemed
appropriate by the Region/DOJ. A simultaneous discussion among
all negotiation team members may be particularly helpful to
identify and resolve outstanding issues.
Upon approval by DOJ, and HQ to the extent appropriate under
internal EPA delegations of Agency settlement authority,'2 of the
negotiation strategy proposed by the pre-referral litigation
report, the litigation team may negotiate a settlement consistent
with the pre-approved range of terms and strategy. Negotiations
typically should commence at this stage through transmission of a
proposed consent decree to the PRPs. This transmission should
occur within 30 days of DOJ/HQ sending their comments to the
Region. If fundamental policy issues threaten to remain
unresolved beyond this 30-day period, participating offices must
arrange for a conference among supervisors of negotiation team
members to resolve remaining issues as soon as possible, but no
later than five working days before expiration of this 30-day
period.
V. Ongoing Negotiations and Procedures/Timefraines if Settlement
Not Reached
A. During pre-referral negotiations conducted under these
procedures, the Region will fully apprise HQ, as appropriate,13
and DOJ of changes in the course of negotiations, particularly if
it proposes to deviate from key pre-approved terms (e.g.. range
of bottom-line figures, releases of liability); will circulate to
HQ, as appropriate, and DOJ to clear successive drafts of the
settlement document before forvarding these drafts to opposing
11 OB will consolidate the HQ comments in a coordinated
response wherever possible and DOJ will submit comments to the
Region that include comments, if appropriate, of the relevant
U.S. Attorney.
12 See. Revision of CERCLA Civil Judicial Settlement
Authorities Under Delegations 14-13-B and 14-14-E from Thomas L.
Adams, dated June 17, 1988.
13 The term "as appropriate" as used throughout Sections v
and VI means "as dictated by the revised civil judicial
settlement authorities under Delegations 14-13-B and 14-14-E."
-------
- 10 -
counsel; and will consult with HQ, as appropriate, and DOJ before
making oral commitments to opposing counsel, consistent with
present practice. HQ/DOJ will have a 7-day target, or shorter
where possible, for responding to changes in the settlement
documents. The Region will, in any event, keep HQ and DOJ
generally informed of the status of ongoing negotiations.
B. The Region will apprise HQ, as appropriate, and DOJ of
significant communications with PRPs and notify the HQ attorneys,
as appropriate, and the DOJ attorneys in advance of meetings with
PRPs to allow participation of HQ, as appropriate, and DOJ.
C. Settlements in principle and final draft versions of
consent decrees will be communicated from Regional management to
OWPE and OE management, as appropriate, and the DOJ Assistant
Section Chief, within applicable timeframes. OWPE and OE
management, as appropriate, and DOJ Assistant Section Chief
support for these settlements in principle and final draft
versions of consent decrees will be communicated, within
applicable timeframes, to the Region in advance of transmission
to PRPs.
D. At any point during pre-referral negotiations, the
Regional Counsel, in consultation with the relevant Assistant
Section Chief at DOJ and the appropriate Regional Division
Director, may remove a case from this process for the purpose of
placing it on a filing track. In such a situation, the case will
be processed as a normal referral and the Region will submit the
appropriate referral documents including the full litigation
report.
E. DOJ will file the complaint within 60 days from receipt
of a complete, final litigation report unless new issues emerge
based upon more complete case development or unless the case is
settled in principle before that deadline.
F. If settlement in principle14 is not reached within 120
days of th« issuance of the first draft of a proposed consent
decree to the PRPs (whose timing typically coincides with the
issuance of special notice), the Region should normally issue a
Section IOC unilateral administrative order (AO) to PRPs no later
than 30 days fro» th« conclusion of negotiations. If the AO is
14 "S«ttlement in principle" is defined as reaching
agreement with PRP counsel on all fundamental terms of the decree
and the specific language of most provisions.
15 Pursuant to the procedures outlined in the document
"Interim Guidance: Streamlining the CERCLA Settlement Decision
Process" (February 12, 1987), for cases in which the prospects
(continued...)
-------
- 11 -
not complied with, the Region should submit a full litigation
report and other referral documents, or pursue obligating funds
for respond* or both as soon as possible, but no later than 120
days from the violation of the AO. If a referral package
including a full litigation report is submitted to DOJ and HQ,
DOJ has 60 days for filing a complaint from the date of receipt
of the referral package. In the event that a Fund-financed
action is undertaken and a referral package is submitted sometime
later, DOJ will file the complaint for cost recovery, penalties
and/or damages within 60 days of receipt of the referral. See'
Attachment B.
VI. Processing of Settlement Documents (See Attachment A)
A. Within 30 days of reaching settlement in principle for
cases under these procedures, the Region typically will submit a
final draft consent decree to HQ, as appropriate, and DOJ for
review. DOJ and HQ, as appropriate, will review and comment to
the Region within 15 days of receipt. Within 20 days of HQ/DOJ
responses (unless otherwise agreed), the Region will submit a
settlement document signed by all parties (except HQ and DOJ)
with a cover letter and the final 10-point settlement analysis
explaining the rationale supporting the settlement.16 The
settlement package should be submitted to OE (copies to OWPE and
DOJ) if HQ concurrence is required, or directly to DOJ (with
copies to OE and OWPE) if HQ's concurrence is not required.
B. For judicial settlements requiring HQ concurrence, HQ
will, within 21 days of receipt of a signed settlement document
with supporting documentation/rationale, concur on a settlement
as long as it is within the range of pre-approved terms as
initially set forth or as modified by agreement between the
Region, DOJ, OE and OWPE over the course of the negotiations.
C. In the case of a consent decree which is within pre-
approved terms as initially set forth or as modified by agreement
"(...continued)
are good for reaching a settlement within a short period of time,
EPA may extend the 120 day negotiating period for 30 days upon
approval of the Regional Administrator, and for an additional 30
days upon the approval of the Assistant Administrator for Solid
Waste and Emergency Response.
16 The 10-point analysis should follow the guidance set out
in "Submittal of Ten-Point Settlement Analyses for CERCLA Consent
Decrees" (Diamond/Unterberger 8/11/89), and should address in
specific the strategy and strength of the case for pursuing non-
settling PRPs for any remaining claims of the U.S.
-------
- 12 -
between the Region, DOJ, and, as appropriate, HQ, over the course
of the negotiations, DOJ will lodge the decree and submit notice
to the Federal Register within 30 days from receipt of the EPA-
approved decree.
D. DOJ will move a court for entry of a decree, assuming no
significant public comment, within 45 days from the date of
notice of the decree in the Federal Register. If this target
cannot be met because of significant adverse public comment, DOJ
and EPA will agree on a process and timetable for response. In
the event that the decree must be modified based on comment, the
Litigation Team will prepare and negotiate modifications and
submit a revised draft to HQ/DOJ or determine that EPA withdrawal
from the decree will be necessary, within 30 days from the close
of the public comment period. (HQ, as appropriate, DOJ and the
Regions will reach agreement on necessary modifications prior to
reopening negotiations with the PRPs, and HQ/DOJ will participate
in the negotiations in the same manner as used during the earlier
negotiations, unless otherwise agreed.) Modification of a
consent decree is subject to the same HQ and DOJ approval
requirements as is the initial agreement. Where HQ's concurrence
is required, HQ will approve a modified consent decree within 21
days from receipt of a draft modified decree. DOJ will move for
entry of the final modified decree within 21 days from receipt of
the signed modified decree from EPA, unless additional public
notice of and comment on the modified decree is warranted.
E. If settlement is not reached and the decision is made to
pursue judicial enforcement, EPA and DOJ will follow existing
guidance documents which establish timeframes for referrals,
filing, and other litigation tasks, except as specified in
Section V.E above.
VII. Purpose and Use of This
The procedures set out in this document are intended solely
for the guidance of Federal government personnel. They are not
intended, and may not be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United State*. The United States reserves the right to
act at variance with these procedures and to change them at any
time without public notice.
Attachments
cc: Deputy Regional-Administrators
Regional Counsel
Regional Waste Management Division Directors
Associate Enforcement Counsel (Superfund)
Director, Office of Waste Programs Enforcement
-------
- 13 -
I concur in the use of this document to establish pre-
referral negotiation procedures for Superfund enforceaent cases.
Richard B. Stewart
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
-------
X"
TIMELINE FOR CERCLA PRE-REFERRAL NEGOTIATION PROCEDURES (IN DAYS)
PRE-REFERRAL LIT
REPORT & CONSENl
DECREE SENT TO:
-DOJ
-OECM
-OWPE
HQ&DOJ
COMMENTS
TO REGION
f
^
PROPOSED
CDroPRPs
FINAL CD TO
DO) & UQ
DOJ&HQ
RESPONSE
/DOJ MOVES FOR ENTRY OF CDj
I (IF NO SIGNIFICANT COMMENT)!
DOJ LODGES CD;
NOTICE IN FED. REG.
SETTLEMENT IN
PRINCIPLE? v
NO
YES
AO
COMPLIED WITH?
MONITOR AO
COMPLIANCE
FULL LJT. REPORT TO
DOJ/HQ (ASAP)
| REGION ISSUES
I UNILATERAL AO
I/ ClOSUIE REACHED WITHIN 120-180 DATS ON ALL fUNOAMLNIAL 1LRMS OF SETTLEMENT
AND M05T LANGUAGE Of A flNAI. CONSENl DEC«EE.
If HQrA«nciPAiEs TO IMF EXTENT mtsciiiED IN CERCLA SETTLEMENT DEI ECATIONS
3/ INCLUDES 21 DAYS POD MQCONCUHIIENCE/CONSULTATION AS rRtscRiiEO IN
CERCLA SFTTIEMt-NT DELEGATIONS.
y YES /
| ENFORCE AO?
/NO
\
[ FUNDS |
luBLICATEDj '
:
C FULL LIT. REPORT
TO DOJ /HQ FOB
COST RECOVERY^
, PENALTIES/DAMAGES
>- ^
DO) FILES
COMPLAINT
DO) FILES |
COMPLAINT I
-------
-. UMTEO STATES ENVIRONMENTAL PROTECTION AGENCY
J WASHINGTON, D C. 20460
V
^c
MEMORAMDOM
SLTBJECT: Superfund Enforcement Strategy and Implementation Plan
FROM: Bruce M. Diamond, Director^
Office of Waste Programs Enforcement
As an interested observer of the progress of the Superfund program, I
thought you might be interested in the attached report prepared by this office
pursuant to requests by the House and Senate Appropriations Cocnruttees. They
directed the Agency to conduct an evaluation of the Superfund enforcement
program. EPA responded with two reports. First is a report titled "Toward a
More Effective Superfund Enforcement Program" prepared by the Environmental Law
Institute (ELI) under a grant from EPA. The ELI study is an independent
evaluation of the Superfund enforcement program. Second is an EPA report titled
"Superfund Enforcement Strategy and Implementation Plan" (the Plan). The Plan
describes the Agency's Superfund enforcement strategy and the steps necessary
to inplement improvements in the enforcement program. I am sending the Plan to
you for your information and am willing to make the ELI report available to you
should you wish.
It is important to distinguish the Plan from the Agency's recently released
"Management Review of the Superfund Program" (and its Implementation Plan) . The
Plan was developed in response to the requests from the Appropriations
Committees. The Review was developed in response to a commitment that EPA
Administrator Reilly made to Congress during his confirmation hearings. The Plan
focusses entirely on the Superfund enforcement process while the Review addresses
all aspect* of the Superfund Program. The Plan contains many of the key
enforcement recommendations presented in the Review but addresses additional
enforcement issues and implementation steps as well. The Plan has been well
coordinated with the overall effort to implement the Review.
If you have any questions or wish a copy of the ELI report, please feel
free to contact me at 382-4814. I look forward to further discussions on the
progress of the Superfund enforcement program.
-------
SUPERFUND ENFORCEMENT
STRATEGY AND
IMPLEMENTATION PLAN
U.S. Environmental Protection Agency
Office of Waste Program* Enforcement
September 26, 1989
-------
Introduction
In passing the FY89 appropriation, the House and Senate
Appropriations Committees requested that the Environmental
Protection Agency (EPA) conduct an evaluation of the Superfund
enforcement program. The specific language of the Appropriations
Committees' requests are included as Appendix A of this report. EPA
has responded to these requests with two reports. First, EPA
contracted with the Environmental Law Institute to conduct an
independent evaluation of the Superfund enforcement program. This
evaluation was completed in the spring of 1989. Second, EPA has
developed this report titled "Superfund Enforcement Strategy and
Implementation Plan" (referred to here as the Plan) which describes
the Agency's Superfund enforcement strategy and the steps necessary
to implement it.
The Superfund Enforcement Strategy and Implementation Plan has
been developed and should be read in close conjunction with the
Agency's Management Review of the Superfund Program released in
June 1989 (referred to here as the Superfund Management Review).
Strengthening Enforcement and Maximizing Private Party Work at
Superfund sites was one of five topics examined in the Superfund
Management Review. A comprehensive plan to implement the Management
Review was released in September 1989; this report supplements but
does not repeat the recommendations in the review. The
implementation plans and recommendations in these reports are fully
consistent. The Superfund Management Review consists of analyses
and recommendations in key areas of the enforcement program, while
this Plan addresses the enforcement program in more detail. Neither
report addresses enforcement for Federal facilities or enforcement
of the notification requirements of section 103 of CERCLA and Title
III of the Superfund Amendments and Reauthorization Act of 1986
(SARA). These programs are sufficiently complex in their own right
that they could not be addressed in this Plan if it was to be kept
to a manageable length.
This Superfund Enforcement Strategy and Implementation Plan
reflects a review of recent studies of the Superfund program, as
well as ongoing management initiatives involving EPA and the
Department of Justice, including the Superfund Settlement Incentives
and Disincentive* Workgroup and the Superfund Enforcement Management
Issues Workgroup. A list of issuas raised in various studies and
reports is included as Appendix 3.
The Plan also reflects the Agency's eight years of experience in
implementing the requirements of CERCLA. This Plan does not
represent the final work in implementation of an enhanced Superfund
enforcement program, but will hopefully represent a major step
toward realization of that goal.
-------
This Plan was developed with the participation of the major
organizations involved in the Superfund enforcement program,
including th« Office of Waste Programs Enforcement (OWPE), the
Office of Enforcement and Compliance Monitoring (OECM), the Office
of Emergency and Remedial Response (OERR), the Office of the
Comptroller (Ot), the Office of General Counsel (OGC), the
Environmental Enforcement Section of the Department of Justice
(DOJ), and representatives of EPA's Regional enforcement programs
and Regional counsel offices. This Plan was prepared by the Office
of Waste Programs Enforcement.
-------
TABLE OF CONTENTS
I. Enforcement Strategy: General
Enforcement and Settlement Principles 7
A. General Principles 7
B. Judicial Principles 8
C. Settlement Principles 9
II. Implementation Plan for Enforcement 10
A. Identification of Potentially Responsible
Parties 11
1. PRP Search Process
B. Information Exchange with Potentially
Responsible Parties 12
1. Enforcement of Information Requests
2. Information Release
C. Removal Enforcement 15
1. Resources
2. Regional Management Approach
D. Private Party Remedial Investigations and
Feasibility Studies (RI/FSs) 17
1. Record of PRP RI/FS Settlements
2. Quality of PRP-lead RI/FSs
E. Negotiations for Remedial Design and Remedial
Action (RD/RA) 18
1. Achieving RO/RA Settlements
-------
F. Settlement Authorities 20
1. Mixed Funding and De Minimis Settlements
2. Non-binding Allocations of Responsibility
G. Unilateral Section 106 Authorities 24
1. Unilateral Section 106 Orders
2. Section 106 Judicial Referrals
H. Administrative Records 27
1. Record Compilation
I. Compliance with Consent Orders and Decrees 28
1. Tracking Systems
2. Penalties for Non-Compliance
J. Cost Recovery 30
1. Recovery of All Costs
2. Documentation of All Costs
3. Removal Cost Recovery
III. Program Relationships 33
A. Fund-Enforcement Integration 33
1. Site Classification System
2. Intergrated Priorities
3. Flexible Funding
4. Headquarters/Regional Organization Review
B. Headquarters/Regional/DOJ Relationships , . .35
1. Consistent Goals
2. IAG/Accountability/Resources
3. Delegations/Management
4. Communications
C. State/F«deral Relationship 38
D. Community Involvement and Public Outreach 39
IV. Resource Impl ications 41
-------
Appendices
Appendix A House and Senate Appropriations
•Committees Language A-l
Appendix B List of Enforcement Issues Raised by Reports
on Superfund B-l
Appendix C Acronyms C-1
-------
I. ENFORCEMENT STRATEGY: GENERAL ENFORCEMENT AND
SETTLEMENT PRINCIPLES
This section presents the general enforcement and settlement
principles that guide the Superfund enforcement program and set the
stage for the enforcement implementation plan contained in the
remaining sections of this report. The Superfund Management
Review's strategy for Superfund sets the framework for the
implementation of the entire Superfund program. Two features of the
strategy are particularly important to the enforcement program
because they state the Agency's commitment to increasing enforcement
actions to induce private party cleanup and to integrating the Fund
and enforcement aspects of the program to improve efficiency of
program operations.
A. GENERAL PRINCIPLES
An effective Superfund program depends on a balanced approach
consisting of settlements, administrative orders and litigation, and
Fund-financed response. EPA will consider private party responses
as the preferred approach for the majority of Superfund sites. At
the same time, EPA will retain the maximum amount of leverage to use
the Fund at specific sites where negotiations are unsuccessful.
The goal of the government is to negotiate an agreement for 100%
of response costs. However, settling for less than 100% can be
appropriate if the settlement meets the Agency's ten point
settlement criteria which assure that the settlement is in the best
interests of the public. Judicial enforcement actions to compel
private party response may not always be the quickest way of
assuring cleanup for any given site. Furthermore, such actions are
not without risk of adverse litigative outcomes. Nevertheless, a
certain minimum number of such enforcement actions will establish a
credible threat against PRPs who fail to participate in the
settlement process. Where negotiations are at an impasse at the end
of the special notice negotiation period, Regions should routinely
issue a unilateral administrative order (UAO). Likewise, if PRPs
fail to comply with a UAO, the Agency expects that serious
consideration be given to bringing a section 106 judicial action or
other action to enforce it. If a Fund-financed response is
undertaken, all step* should be taken to seek treble damages during
cost recovery. The Regions should have flexibility to select the
most effective* approach for a particular site. They should be able
to shift funds among sites within the Region to achieve maximum
leverage.
1"Interim CERCLA Settlement Policy," February 5, 1985, OSWER
Directive number 9835.0.
-------
B. JUDICIAL PRINCIPLES
The liability of PRPS under CERCLA continues to be strict, and
joint and several , except where PRPs can demonstrate that harm at
the site is divisible. The potential for joint and several
liability is a valuable impetus for PRPs to reach agreement among
themselves and with the government.
Citizens sometimes want PRPs to be punished for the Superfund
sites they have created. However, parties may be liable under
CERCLA without having violated any regulatory statutes. Thus, the
primary purpose of the liability scheme is to compel cleanup.
Vigorous enforcement actions should be brought against parties who
fail without sufficient justification to participate in the
settlement process and punitive measures should be brought against
those who violate orders or decrees. The government should
specifically enforce against failure to comply with information
requests and use its administrative subpoena authority to facilitate
the settlement process by improving information available on PRPs.
As authorized under sections 106 and 107, the government will
pursue cases involving treble damages and penalties for violations
of unilateral and consent orders. Taking such actions is important
for establishing a credible deterrent. These actions are available
against persons who fail without sufficient cause to comply with
orders.
In appropriate circumstances, where a settlement for less than
100% has been reached, the government should pursue prompt and
vigorous enforcement against viable recalcitrants where we have
sufficient evidence linking such parties to the site. Such action
should almost always be commenced within 90 days of entry of the
consent decree.
The government should enhance efforts to publicize enforcement
actions, particularly in suing recalcitrants, because public
perception of an effective enforcement program is essential for
assuring voluntary PRP participation in the settlement process. The
publicity should involve the local and national media and be
explicitly targeted to potentially affected recalcitrants and
communities.
2Strict liability is liability without regard to fault; it
holds a responsible party liable for any harm caused, without regard
to whether the party exercised due car* or acted with negligence.
Joint and several liability arises where two or more parties cause a
single and indivisible harm. Each party is liable for the entire
harm.
8
-------
C. SETTLEMENT PRINCIPLES
EPA should encourage early PRP participation in the settlement
process. EPA should strengthen its emphasis on early and'thorough
PRP searches under the direction of experienced civil investigators
and provide training and resources to support these activities. EPA
should conduct a preliminary search to identify obvious PRPs upon
site discovery and should undertake more intensive searches as soon
as proposed listing on the NPL appears likely. EPA should issue
general notices at all sites where PRPs have been identified.
Absent extraordinary circumstances, special notice should be issued
at all sites with viable PRPs no later than issuance of the record
of decision (ROD).
EPA should continue to provide capable PRPs with an opportunity
to participate in the remedial investigation and feasibility study
(RI/FS) with appropriate oversight. Comprehensive settlements for
all response work and costs are preferred. Mixed funding, de
minimis settlements, and non-binding allocations of responsibility
(NBARs) are Congressionally-sanctioned settlement tools. EPA
believes these tools should be more fully utilized where their use
will facilitate settlements and where they are used pursuant to
existing Agency guidance. This does not mean, for example, that the
Agency is establishing a preference for the use of a mixed funding
settlement over a more comprehensive settlement. Rather, this means
that EPA should increase its efforts to remove obstacles to the use
of these settlement tools and should provide additional resources
for their use, where appropriate.
EPA's policy is that allocations should generally be worked out
among the PRPs. However, under appropriate circumstances, the
government should attempt to allocate costs among settling and non-
settling parties in a way that maximizes its ability to pursue non-
settlors and avoids creating incentives for PRPs not to participate
in the settlement process. EPA should actively facilitate
allocation among PRPs on a more frequent basis. EPA should also
consider funding neutral third parties to perform allocations for
PRPs, and consider more aggressive use of administrative subpoenas
to collect information related to allocations.
EPA should provide explicit opportunities for using non-binding
alternative dispute resolution (ADR) where it would expedite
settlement. EPA will consider innovative use of ADR as well as
traditional tormm of ADR such as non-binding arbitration and
mediation.
All enforcement agreements should contain a commitment by the
PRPs to adequately fund EPA oversight. Furthermore, levels of
oversight should be correlated to the demonstrated ability of the
PRPs to perform the RI/FS or response action. EPA will routinely
issue special notice in remedial cases and will adhere to strict
deadlines for completing negotiations.
-------
II. IMPLEMENTATION PLAN FOR ENFORCEMENT PROGRAM ELEMENTS
This section consists of specific recommendations for
improvement concerning management, planning, policy and resources.
It assumes a "basic knowledge of the elements of the Superfund
enforcement process. The recommendations listed under these steps
are primarily top priority activities. They include many
recommendations from the Superfund Management Review.
Implementation of these recommendations requires commitment and
assistance both within EPA and from Congress, as well as from public
and private interest groups and States. The ability of EPA to
implement these recommendations depends upon resource levels.
Resources are discussed in Part IV of this Plan.
Enforcement activity at a Superfund site involves a series of
steps. Many of them build upon one another. When one of the steps
is performed inadequately, EPA may be unable to reach the ultimate
goal — private party response. The following section discusses ten
key enforcement steps.
o Identification of Potentially Responsible Parties,
o Information Exchange and Notification
o Removal Enforcement,
o Private Party Remedial Investigations and Feasibility Studies,
o Negotiations,
o Settlement Authorities,
o Unilateral Enforcement Authorities,
o Administrative Records,
o Oversight and Compliance, and
o Cost Recovery.
The first »tep toward improving the implementation of the
enforcement program overall involves integration of the Fund and
enforcement program*. EPA must better integrate all of the
enforcement stops into the overall sit* cleanup process to ensure a
consistent enforcement-first approach to Superfund sits cleanups.
For true program integration and proper management of Fund and
enforcement dollars, the Agency must adhsrs to soms form of timeline
management to maintain the cleanup procsss along a continuum, as
recommended in ths Supsrfund Management Review.
10
-------
The discussion below provides recommended improvements for
implementing specific steps in the enforcement process.
A. Identification of Potentially Responsible Parties
Topic: 1. PRP -Search Proc??a
Status and Accomplishments:
Effective PRP searches are fundamental to the Agency's
enforcement goals of obtaining increased PRP involvement in
conducting cleanup activities and cost recovery. They produce
information about the site and parties associated with it. Since
SARA, PRP searches have been conducted pursuant to th« PRP Search
Manual (August 1987). Training in the Regional offices accompanied
distribution of the manual. Also, beginning in FY86-87, each Region
hired at least one civil investigator. PRP search contractor work
assignments usually contain most of the "baseline" tasks outlined in
the Manual. This includes interviewing persons to gather
information, describing history of operations at the site, preparing
lists of PRP names, and describing status and history of PRFs. A
PRP search evaluation recently conducted by the Office of Waste x
Programs Enforcement (OWPE) concluded that the timing of PRP
searches has shown great improvement. By the beginning of FY 88,
all searches were being initiated at least 120 days prior to NPL
proposal. However, the timely completion of quality PRP searches
with concrete evidence on liability and financial viability
continues to be of concern.
The results of this study have led the Agency, through
Congressional appropriation, tc add 20 civil investigators to the
Superfund enforcement program. EPA has also continued a strong
programmatic emphasis on early PRP searches. Moreover, EPA will
continue to focus on developing optimum skill mixes to conduct PRP
searches. Thus, qualified individuals such as civil investigators
will continue to manage the PRP search process.
Headquarters has also issued additional guidelines that further
integrate the PRP search process with the goals of the enforcement
program. These guidelines describe the process from the initiation
of a search through general and special notice, and specifically
address how tor establish evidence of liability, and when to conduct
follow-up research. In July 1989, a three-day training program was
held for Technical Enforcement Support (TES) contractors as well as
interested Regional Program and legal staff to further enhance their
PRP search responsibilities. The course included instruction on how
to conduct the baseline search, how to prepare PRP search reports,
how to follovup on the baseline search, how to analyze the PRP
3 "PRP Search Supplemental Guidance for Site* in the Superfund
Remedial Program," June 29, 1989.
11
-------
search results, as well as how to use particular investigative
techniques to enhance the quality of the PRP search. Headquarters
plans to canvass the Regions to assess additional training needs.
Issue: The Agency has laid the foundation for a more successful PRP
search program using civil investigators to manage the
PRP search process; utilizing strong programmatic emphasis
on earlier PRP searches; and continuing development of a
proper skill mix for adequate PRP searches. The Agency must
now begin to show the fruits of this endeavor.
Implementation Steps:
o The Regions should continue to strengthen their emphasis on
early and thorough PRP searches under the direction of
experienced civil investigators. In addition, the Regions
should conduct a preliminary search to identify obvious pRPs
upon site discovery and undertake more intensive searches as
soon as possible, preferably prior to proposed listing on
the National Priorities List (NPL).
V
o As stated in the Superfund Management Review, Regions will
create units specifically devoted to case support activities
such as searching for PRPs, gathering information, assessing
ability to pay, and identifying corporate relationships.
These units should be comprised of individuals with the
proper skill mix to perform these responsibilities.
o Headquarters should continue to conduct yearly audits of
Regional and contractor staff.
o Headquarters should provide sufficient resources and routine
training to support the Regional activities described above.
Headquarters should also continue to provide routine
training to new TES zone contractor staff responsible for
conducting PRP searches.
o Headquarters should develop criteria for determining where
early PRP searches (e.g., those conducted prior to the 1986
amendments to CERCLA) should be supplemented so that viable
PRP* axe sufficiently identified for cost recovery.
Topic: l.
Status and Accomplishments:
The Agency routinely sends out at least one mailing of |104(e)
information requests to PRPs, or telephones them for information,
before any response action is taken at a site. However, some PRPs
currently perceive that the Agency does not enforce information
12
-------
requests that are never responded to, or take action when inadequate
or fraudulent responses are received. The PRP community
additionally feels that the Agency builds its cases by focusing on
parties who adequately respond to information requests, instead of
pursuing all PRPs.
Regions indicate that a significant percentage of PRP responses
to initial §104(e) information requests are inadequate and require
follow-up. However, they are sometimes unable to follow-up with a
second, more tailored information request because of resource
constraints. Based upon the level of Agency follow-up conducted so
far, Regions estimate that over 50% of all PRPs require a third
information request. Agency experience indicates that PRPs who
receive subsequent, tailored information requests provide more
detailed responses.
Although limited, enforcement of information request* has been
successful; and a joint Headquarters initiative between the Office
of Enforcement and Compliance Monitoring (OECM) and OWPE is
currently underway to encourage additional cases. As part of the
initiative, a strategy for information request enforcement is under
development. Model pleadings are being drafted to supplement thev
"Guidance on Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas," issued on August 25, 1988. The civil
investigators will follow-up on §104(e) information requests in
addition to performing PRP searches. Furthermore, Headquarters has
proposed a formal Superfund Comprehensive Accomplishments Plan
(SCAP) definition for §104(e) enforcement to take effect in FY 90.
Issue: Due to limited resources, Regions have been unable to fully
follow-up, or enforce, information requests that were never
responded to, or for which inadequate or fraudulent
responses were received.
Implementation Steps:
o Regions should establish management systems that assure the
timely issuance of information requests, the tracking and
review of responses and implementation of necessary
followup.
o As stated in the Superfund Management Review, separate
information gathering units and enforcement record units
have be*n established in some Regions to ensure that
qualified personnel are gathering, maintaining, evaluating
and verifying the information. Headquarters will encourage
other Regions to reorganize in this manner.
o Headquarters should issue a draft strategy for comment that
encourages more aggressive enforceaent actions in the event
of non-compliance with information requests such as issuing
13
-------
§104(e) orders, initiating judicial referrals, and issuing
§122(e) subpoenas as soon as possible.
o Headquarters should train personnel on properly processing
information requests.
o Regions should be encouraged to refer PRPs who fail to
respond or who respond inadequately or fraudulently to
§104(e) information requests to the Department of Justice
for civil or criminal prosecution. The government should
use its administrative and civil authority and seek criminal
sanctions where appropriate.
o In order to minimize resource requirements, the Regions
should be encouraged, where appropriate, to group referral
(i.e., include referrals of information requests with
referrals brought against PRPs under other authorities).
Topic: 2. Information Release
Status and Accomplishments:
The Agency routinely contacts and provides some information to
identified PRPs through formal or informal mechanisms prior to
conducting removal and remedial actions. This information concerns
other PRPs at the site, the nature of wastes at the sit*, and a
volumetric ranking of the wastes by party. PRPs maintain, however,
that the Agency's release of information is inconsistent in quality
and timeliness. Studies indicate that PRPs need liability-related
information to allocate costs among themselves and to develop
settlement offers.
No Agency guidance addresses information release. Current
Regional practice is often reciprocal in nature: the Agency will
release information to the PRPs upon receipt of certain information,
such as a response by the PRP to an information request, from them.
Issue: Regions have been reluctant to release in a piecemeal
fashion liability- related information because the
information nay be too resource intensive to distribute in a
form h*lpful to the PRPs. In other cases, Regions feel that
the information is evidentiary in nature and that its
rel«Me> sight compromise subsequent enforcement action.
Implementation
Headquarters should explore the development of guidance
on the preparation of "waste-in" lists, which indicate
the relative share of various PRP's waste contribution
at a site, and development of data bases to assist
Regional development of "waste-in" lists.
14
-------
o As stated in the Superfund Management Review,
Headquarters will develop a strategy to encourage
Regional distribution of liability-related information
to PRPs in appropriate circumstances to facilitate
negotiations.
C. Removal Enforcement
Topic: 1. Resources
Status and Accomplishments:
EPA has been increasing its emphasis on enforcement-lead
removal activities. Removals will be "enforcement-first," taking
into account the need to proceed expeditiously in time-critical
situations.
Although removal enforcement is improving, the removal
enforcement program faces limitations due to inadequate resources.
In the Regions, the removal program is composed of a staff of
technical experts who primarily respond to classic Fund-lead
emergencies. They are able to address only a limited number of
enforcement sites per year. If EPA were to increase enforcement
resources, these experts could address a greater number of
enforcement sites per year. Further, TES contracts are not easily
accessible to On-Scene Coordinators (OSCs). It can take several
weeks for work to be authorized. For removal actions, more
immediate assistance is needed.
Issue: The removal program is bound by resource constraints which
result in an inadequate skill mix to properly address
enforcement at removal sites.
Implementation Steps:
o Regional offices should review the resource* dedicated to
removal enforcement and quickly identify needs.
Headquarters should then adjust resource allocations to
reflect the true resource needs. If internal resource
adjustments are not adequate, the Agency should then pursue,
if necessary, and on a priority basis, actions with OMB and
Congress to ensure significant commitment of resources.
o Headquarters is developing a model open work assignment
which should be distributed soon. Regions should establish
open work assignments for TES in all Regions to expedite
removal enforcement support.
15
-------
Topic: 2. Regional Management Approach
Status and Accomplishments:
Management structures in the Regions vary for the removal
program. The predominant structures are: (1) a single removal
program where all OSCs conduct enforcement-lead and Fund-lead
removals, or (2) multiple sections with Fund-lead OSCs separate from
enforcement-lead OSCs. In some Regions, physical separation
interferes with communication between OSCs and enforcement staff or
Regional Counsel. OSCs may be assigned to work in field offices or
separate buildings from enforcement staff and Regional Counsel.
Consequently, little communication is face to face and document
review is difficult.
Since a goal of the removal program is to mitigate threatening
situations as quickly as possible, at many removals it is often
difficult to afford the time to conduct enforcement activities.
Furthermore, in some Regions, formal management procedures have not
been adopted to assure an enforcement first approach when possible.
The combination of all of these factors impedes the removal
enforcement process.
Issue: Although organizational differences exist between Regions, a
management approach that emphasizes "enforcement-first" is
more important than actual organizational structure. In
some cases, however, organizational structure appear to
obstruct the removal enforcement process.
Implementation Steps:
o Regions should assess communications between OSCs,
enforcement staff and Regional Counsel to determine whether
access and communication are hampered. Where they are
hampered, steps should be taken to enhance communications.
o Regional offices should assure that procedures are
established that normally provide for the issuance of orders
prior to the initiation of fund financed removals, except
where not appropriate, e.g. emergency; or PRP is not
identified or not viable.
o Enforcement activities at all removal sites should be
considered first, except emergencies or where no PRP is
present.
16
-------
D. Private Party Remedial Investigations/Feasibility studies
fRI/FSs)
Topic: 1. Record of PRP RI/FS Settlements
Status and Accomplishments:
The Agency has a successful record of obtaining private party
RI/FS settlement agreements. In fact, the percentage of PRP
conductd RI/FSs out of the total RI/Fs started has consistently
increased over the last three years, and will be over 50% by the end
of 1989.
Issue: While the Agency has a good settlement record for the RI/FS,
PRPs maintain that the Agency is too inflexible with respect
to certain consent order provisions.
Implementation Steps:
o Since the Agency has a successful record of obtaining PRP
RI/FS settlement agreements, the program does not require
further incentives to obtain RI/FS settlement agreements.
The Agency should not change its approach to create greater
incentives.
Topic: 2. Quality of PRP-lead RI/FSs
Status and Accomplishments:
In May of 1988, Headquarters issued an "Interim Guidance on PRP
Participation in Remedial Investigations and Feasibility Studies."
It was revised in January 1989. In June 1989, Headquarters issued a
model RI/FS statement of work that follows the revised RI/FS
guidance. The Agency is currently drafting a guidance manual on
oversight of PRP-conducted RI/FS and a model CERCLA administrative
consent order for the RI/FS.
Headquarters is formally evaluating PRP-lead RI/FSs to further
assess their quality, consistency and timeliness. The evaluation
will be completed by the fall of 1989. As a follow-up to the formal
evaluation, a training program is planned for Regional Project
Managers (RFM) and oversight contractors.
Issue: Some cooaenters criticize the Agency for allowing private
parties to conduct the RI/FS. They maintain that PRP
conducted RI/FSs are characterized by poor quality and may
result in cheaper and less protective remedies. Some
regions feel that problems with PRP-lead RI/FS« are
aggravated by the turnover rate of experienced RPMs and
Regional counsels.
17
-------
Implementation Steps:
o Headquarters is issuing guidance on RI/FS tasks and
activities, including some that may currently be poorly
conducted at some PRP-lead sites. The PRPS will be required
to follow these and other guidances.
o Headquarters will work with the Regions to identify
situations where it may be appropriate for the government to
conduct portions of the RI/FS while allowing PRPs to
conduct certain portions of an RI/FS.
o Headquarters should complete the oversight manual.
o Regions will be encouraged to implement the recommendations
of the Superfund Management Review which are directed at
decreasing the RPMs' workload through such actions as
upgrading RPM, technical career and Regional counsel
positions, creation of deputy RPMs, and use of in-house
technical support teams.
E. Negotiations for Remedial Pea ion/Remedial Action
(RD/RA1
Topic: 1. Achieving RD/RA Settlements
Status and Accomplishments:
EPA has a good record of achieving RD/RA settlements and the
total number and value of settlements has been increasing yearly.
Headquarters has issued a variety of guidances that pertain to
different aspects of the RD/RA negotiation process.4 In addition,
EPA's Management Issues Workgroup devoted a significant amount of
time to addressing how to improve the management of RD/RA
settlements. Their final report stressed the importance of the
following and provided some recommendations on how to improve these
areas: the quality and timeliness of PRP searches, the development
and utilization of effective negotiation teams, meeting negotiation
deadlines, and PRP organization through steering committees.
4 "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange," October 19, 1987, OSWER Directive number
9834.4A. "Waiver of Headquarters Approval for Issuance of Remedial
Design and Remedial Action Special Notice at the" Tine of ROD
Signature," September 26, 1988, OSWER Directive number 9834.10-la.
"Initiation of PRP Financed Remedial Design in Advance of Consent
Decree Entry," November 18, 1988, OSWER Directive number 9835.4-2A.
18
-------
Issue: Approximately 80% of negotiations are not fully completed
during the moratorium period, although many agreements-in-
principle are reached or nearly complete. The Regions are
uncertain when unilateral administrative orders (UAOs)
should optimally be used.
Implementation Steps:
o The Regions should be prepared to issue a UAO promptly after
the negotiation deadline. In many cases this will involve
drafting a UAO during negotiations.
o Regions should routinely issue UAOs at tha conclusion of
the negotiation moratorium if there are viable PRPs and a
settlement is not reached at that point. Regions should
promptly issue a UAO if:
— A good faith offer is not received by tha 60th day,
— A good faith offer is received but settlement is not
reached by the 120th day, and insufficient progress
has been made to continue negotiations through a deadline
extension.
o If a negotiation deadline extension is granted because
sufficient progress has been made to justify an extension,
Regions should be encouraged to issue unilateral orders with
effective dates delayed to the new negotiations deadline.
o In addition to issuing UAO's, using model consent decrees
during negotiations should facilitate the settlement
process. Headquarters in conjunction with DOJ is
developing -a national model consent decree.
o In the limited circumstances where tha Regions determine
that special notice would not ba appropriate, Regions, in
appropriate circumstances, should nevertheless issue
unilateral orders to the PRPs.
Issue: Before> initiating site cleanup, EPA typically
negotiates with PRPs for conduct of the RI/FS, and
again, once the record of decision (ROD) is signed,
for conduct of the RD/RA. Some PRPs maintain that
they would conduct more cleanups if EPA were more
flexible — for example by negotiating with them for
conduct of the remedial action upon completion of
the remedial design.
19
-------
Implementation Steps:
o Headquarters should explore the advantages and disadvantages
of negotiating conduct of the RD together with the RI/FS,
and separately negotiating conduct of the remedial action
upon completion of the RD. Routine Fund-financing of the RD
prior to PRP conduct of the remedial action is not a varible
option for the problem.
F. Settlement Authorities
Topic: 1. Mixed Funding and de Minimus Settlement
Status and Accomplishments:
As part of EPA's effort to facilitate the use of mixed funding,
Headquarters has issued general guidances which establish the basic
framework for the use of mixed funding. The Agency has also worked
with the Regions to identify candidate mixed funding sites and has
completed an extensive training program in each Region on how to
utilize mixed funding.
As part of EPA's effort to facilitate the use of de minirais
settlements, the Agency has issued two general guidances to the
Regional offices which establish the basic framework for the use of
de minimis settlements and one on de minimis landowner settlements.6
The Agency has also worked with the Regions to identify candidate de
minimis sites and has completed an extensive training program .in
each Region on how to use de minimis settlements.
In addition, the Settlements Incentives/Disincentives Workgroup
identified disincentives to the use of de minimis settlements and
specifically addressed ways to increase incentives for using
minimis settlements. The workgroup provided specific
recommendations for selecting candidate de minimis sites,
"Evaluating Mixed Funding Settlements" October 20, 1987,
OSWER Directive number 9834.9, and "Interim Policy on Mixed Funding
Settlements Involving the Pre Authorization of States or Political
Subdivision*," May 27, 1988, OSWER Directive number 9834.9a.
6"Inter!* Guidance on Settlements with De Minimis Waste
Contributors** June 19, 1987, OSWER Directive number 9834.7;
"Interim Model CZRCLA Section 122 (g)(4) De Minimis Wast*
Contributor Consent Decree and Administrative Order Guidance,"
October 19, 1987, OSWER Directive number 9834.7-1A; and "Guidance on
Landowner Liability under Section 107(a)(1) of CERCLA, De Minimi*
Settlements under Section 122(g)(l)(B) of CERCLA, and Settlement*
with Prospective Purchasers of Contaminated Property," June 6, 1989,
OSWER Directive number 9835.9.
20
-------
determining when to enter into such settlements, developing methods
for achieving de miniinis settlements with minimal resources and
without alienating the major PRPs, and removing impediments to de.
nininis settlements through the development of additional guidance.
Issue: Some Regions are reluctant to pursue mixed funding or de.
minimus settlements either because they have little or no
direct experience in achieving such settlements or because
they are too resource intensive to use.
Implementation Steps:
o As stated in the Superfund Management Review, Headquarters
will explore the possibility of creating incentives for the
use of de minimus settlements by providing those Regions who
successfully achieve de minimus settlements with
supplemental resources. This will also be considered for
mixed funding settlements.
o Headquarters should explore whether "trouble-shooters"
with experience in achieving mixed funding or de minimus
settlements can be loaned to or among the Regions for
sites where such settlements are being considered.
o Headquarters should explore whether a formal mechanism for
exchanging information among the Regions on successful mixed
funding or de minimus settlements should be established and
how it would work.
o As stated in the Superfund Management Review, Headquarters
will explore whether additional Regional training is
necessary.
Issue: The FY 89/90 budget process requires the Regions to budget
for mixed funding needs through the Superfund Comprehensive
Accomplishment Plan (SCAP). It is difficult to predict in
advance which sites may require mixed funding. Where
unanticipated mixed funding needs arise, defunding of one
site to. cover mixed funding needs for another may cause
delays in cleanup of those defunded sites. In addition,
making this information available through the SCAP could
compromise negotiations where the PRPs may obtain
information that money has already been set aside to cover a
shortfall for preauthorization.
Implementation Step:
o As stated in the Superfund Management Review, Headquart«rs
will continue to explore whether it is appropriate to set up
a national reserve that would be available to tha Regions
for mixed funding needs.
21
-------
Issue: The Preauthorization Decision Document (FDD) is currently
drafted by Headquarters. There have been instances where
certain provisions of the FDD overlap with or are in
conflict with provisions of the consent decree. The overlap
leaves the PRPS unclear as to what can and cannot be
negotiated. Finally, there is no consistency in the manner
in which PRPs request preauthorization, although the Regions
have been instructed to provide the Harvey and Knott FDD as
an example.
Implementation Steps:
o Headquarters should explore when it is appropriate to
delegate the authority to draft the FDD to the Regions with
Headquarters oversight.
o Headquarters and the Regions should review the model FDD and
consent decree to identify where overlap exists and make
revisions accordingly.
o Headquarters should publish th« Harvey and Knott POD in the
Federal Register with a notification that the Agency expects
PRPs use this as a model for their PDDs.
Issue: Questions continue to be raised about whether Federal
procurement requirements apply to the procurement of
contractors for work conducted pursuant to a
preauthorization agreement (e.g., whether competitive
bidding of contractors is needed to establish the
reasonableness of costs to be incurred by the PRPs to ensure
they can be reimbursed by the Fund for such costs).
Implementation Step:
o Headquarters recently issued a memorandum 7 to the Regions
which clarifies the procurement procedures that aay be used
to assure that the costs incurred by the PRPs are
appropriate based on Federal cost principles. Headquarters
should explore whether there is the need to provide
additional support to the Regions in implementing this
memorandum (e.g., site-specific assistance).
Issue: Region* believe special accounts could be established to
retain de minimis cash-outs for immediate access of funds to
support cleanup activities when agreement has been reached.
Such access will minimize delays in funding cleanup
activities at sites, provide Regions with an incentive to
pursue de ainimis settlements, and provide PRPs with an
incentive to settle.
7"Procurement Under Praauthorization/Mixed Funding," April 19,
1989, OSWER Directive number 9225.01-01.
22
-------
Implementation Step:
o As stated in the Superfund Management Review, Headquarters
will continue to pursue the idea of setting up special
accounts that would be available to the Regions for use at
sites -where de minimis settlements are reached.
Topic: 2. Non-Binding Allocations of Responsibility (NBARsl
The Agency has issued guidance to the Regions on the
preparation of NBARs. The Agency's policy is to generally allow
the PRPs to determine allocation questions among themselves although
NBARs should be used under appropriate circumstances. To date, only
one formal NEAR has been completed, although the Regions do become
informally involved in allocations, through the development and
distribution of volumetric ranking lists. The quality of waste-in
information, which is prepared for special notice, varies by the
availability of information at particular sites.
Issue: Questions remain on what role the Agency should assume for
facilitating allocations generally and what mechanisms are
available for facilitating such allocation* in appropriate*
cases. In the majority of cases, the PRPs don't want the
Agency to prepare formal NBARs, but they do want EPA to
facilitate allocations through the development of volumetric
ranking or waste-in lists.
Implementation Steps:
o Headquarters should take the initiative on promoting more
Regional involvement in facilitating allocation* by:
Sending a memorandum to the Regions endorsing more
Regional involvement in allocations in appropriate
cases. This may include a discussion about allocation
mechanisms that have been used to date as well as
whether they were successful and why.
Identifying the appropriate forum for exploring the
Agency's role and mechanisms (e.g., the CERCLA
Settlements Lead Region Workgroup). The forum should
explore:
— the range of allocation mechanisms,
under what circumstances particular allocation
mechanisms may be useful,
8 "Interim Guidelines on Preparing Nonbinding Preliminary
Allocations of Responsibility," May 16, 1987, OSWER Directive number
9839.1.
23
-------
the use of neutral third parties,
how to do allocations between owners/generators
and generators/generators, and
what has worked and what has not worked in various
Regions as well as what mechanisms should be used
to transfer this information among the Regions.
G. Unilateral Section 106 Authorities
Topic: 1. Unilateral Section 106 Orders
Status and Accomplishments:
The Agency has a high compliance rate for section 106
unilateral orders and is increasing the number of unilateral orders
issued for both removals and remedial actions.
The Agency's guidance on section 106 unilateral orders is
currently under revision to reflect statutory changes, new program
directions and accumulated Agency experience. Headquarters is also
developing model section 106 unilateral orders to facilitate
unilateral enforcement actions in the Regional offices.
Issue: The Agency is perceived as failing to establish a credible
record of administrative enforcement against recalcitrants.
Regions have in the past been reluctant to routinely issue
unilateral orders due to avoidance of delays or
misconceptions of their role in the program, and resource
constraints.
Implementation Steps:
o Instead of a quota system, Headquarters strategy should
strongly encourage Regions to issue unilateral orders
routinely to PRPs at removal and remedial sites who meet the
criteria set forth in Agency guidance, prior to Fund
financing and/or judicial referral. Historically, the
Agency has been cautious about issuing unilateral orders at
RI/FS sites, but has done so in a few appropriate
circumstances.
o As stated in the Superfund Management Review, Headquarters
strategy should require Regions to issue UAOs before a Fund-
financed response can proceed. In exceptional
circumstances, the Regions should provide justification for
their decision not to issue the order.
Issue: The Agency has been criticized for failing to provide
settlement incentives and disincentives for nonsettlors with
respect to administrative enforcement.
24
-------
Implementation Steps:
o For settlements encompassing less than 100% of the
identified response action, Headquarters guidance will
encourage Regions to issue unilateral orders to compel
nonsettlors to perform the remaining portion.
o For settlements involving fewer than all of the viable PRPs,
Headquarters guidance will encourage Regions to consider
carving out separate tasks from the settlement for
nonsettlors to perform under unilateral orders, where the
work to be performed is readily divisible.
o Where a settlement agreement for 100% of the identified
response action has been reached with fever than all liable
PRPs, Headquarters will consider guidance for Regions to
explore use of parallel unilateral orders. Parallel
unilateral orders may assist settlors to bring contribution
actions against nonsettlors by directing liable nonsettlors
to coordinate and cooperate with the settlors' conduct of
the response action.
o Headquarters and DOJ will explore the possibility of
obtaining costs from nonsettlors through unilateral orders.
Topic: 2. Section 106 Judicial Referrals
Status and Accomplishments:
Historically, judicial referrals have been resource intensive
and have sometimes not produced satisfactory results in that they
have taken years to resolve and have allowed judicial re-examination
of remedial decisions. Statutory amendments to provision*
concerning the administrative record and judicial standard of review
were designed to resolve some of these impediments.
Headquarters issued a "Guidance on CERCLA Section 106 Judicial
Actions" in February of 1989. Headquarters is drafting a strategy
on treble damages to facilitate Agency collection of treble damages.
EPA and DOJ ar* working together to standardize enforcement tools.
They developed a new Model Litigation Report to improve the quality
of judicial referrals.
Issue: The Agency is perceived as failing to establish a credible
record of judicial enforcement against recalcitrants and
PRPs who fail to adequately comply with unilateral orders
and settlement agreements. In the past, Regions have been
reluctant to refer cases to DOJ due to resource
requirements, time constraints and the ability to fund
response actions where there were no settlements.
25
-------
Implementation Steps:
o Headquarters will encourage Regions to selectively refer
cases.to DOJ to establish a credible record of enforcement
against recalcitrants. Cases should be selected based upon
criteria set forth in Agency guidance.
o As stated in the Superfund Management Review, Regions will
consult with Headquarters where PRPs do not comply with a
unilateral order.
o To secure favorable judicial review, Regions should develop
supporting documentation for administrative record purposes.
o To develop a favorable record on treble damages cases,
Headquarters should develop a strategy setting forth
criteria for optimum case selection. Criteria should focus
upon traditional liability issues in addition to
anticipating PRP assertions of "sufficient cause" (i.e. good
faith defense) for noncompliance with unilateral orders.
o Headquarters should examine rulemaking on what constitutes
"without sufficient cause", to rebut PRP assertions of a
"sufficient cause" defense to penalties and damages at
trial.
o Good candidates for referral generally should not include
bankrupt PRPs. Bankruptcy cases should be screened..
carefully based upon the strength of evidence, the
bankruptcy situation, and litigative risks.
Issue: The Agency has been criticized for failing to provide
settlement incentives and disincentives for nonsettlors with
respect to judicial enforcement.
Implementation Step*:
o Headquarters is investigating the feasibility and
desirability of publicizing names of PRPs who fail to
participate in settlement negotiations through media
conferences and press releases in national and local
newspapers.
o Headquarters should investigate more active coordination
with the Securities and Exchange Commission to ensure that
corporations subject to securities lavs are disclosing their
potential liabilities for cleanup coata, penalties and/or
treble damages, in their annual financial statements and
disclosure filings.
26
-------
o As stated in the Superfund Management Review, Headquarters
may pursue establishment of a litigation budget set aside of
dollars and staff, over and above the Regions' regular
budget, for use in §106 unilateral order litigation.
o As stated in the Superfund Management Review, Headquarters
will investigate the creation of Headquarters Support Teams
and Cost Recovery Documentation Teams to provide "hands-on"
assistance at critical junctures in case preparation.
o As stated in the Superfund Management Review, Headquarters
may investigate adjusting internal accountability
commitments for other site activities, to the extent that
judicial enforcement pulls staff away from other activities.
o To assist with DOJ's limited resources, Headquarters will
investigate deputization from DOJ of qualified EPA Regional
counsel attorneys and/or Office of Enforcement and
Compliance Monitoring attorneys to represent EPA in court.
Alternatively, Headquarters should pursue allocating
resources for greater litigation support.
H. Administrative Records
Topic: 1. Record Compilation
Status and Accomplishments:
Administrative records for selection of response action are
being compiled in all ten Regions. Quarterly workshop*, tracking
systems, audits, and training are being used to assure the quality
and timeliness of records and public access to those records. Each
Region now has a remedial administrative records coordinator.
The records program for removal actions is improving.
Quarterly workshops, tracking systems, and training are being used
to assure the quality and timeliness of records and public access to
these records. Each Region now has a removal administrative records
coordinator.
In FY 88, Headquarters published proposed regulations on
administrative) records - Subpart I of the proposed revisions to the
National Contingency Plan (NCP). Headquarters also released
"Interim Guidance on Administrative Records for the Selection of
CERCLA Response Actions" in March of 1989. A "Compendium of
Guidance Documents", centralizing guidance documents frequently used
in selecting response actions was sent on to the Regions for
comment. The compendium will be used to-save Agency resources In
compiling administrative records.
Issue: Several outstanding issues have been identified which remain
to be resolved concerning administrative records.
27
-------
o Regions believe that space for these voluminous records
will be at a preniur,.
o Inconsistencies exist among Regions in the timing of
compiling and updating the records.
o States are supposed to compile and maintain records for
State-lead sites. Many Regions are still compiling
them for the States.
o Decisions on what to do with confidential material
requires coordination between Regional counsel and
program offices.
o Regions are reporting that contractors claim the
Confidential Business Information privilege for much
information which restricts public access to some
information.
o Regions are also reporting problems with public
accessibility of the record at military facilities.
Implementation Steps:
o Headquarters has encouraged training sessions with
States and other Federal Agencies responsible for
compiling administrative records to cut down on work
load for the Regions.
o Headquarters should continue implementation of training
and document dissemination for Regions.
I. Compliance With Consent Orders and Decrees
Topic: 1. Tracking Systems
Status and Accomplishments:
There is no Agency-wide compliance tracking system for CERCLA
consent decrees. The Agency-wide CERCLA data base, CERCLIS, tracks
major milestone* taken at a site, but it does not track technical
compliance with consent orders or decrees. The Department of
Justice track* the lodging and entry of CERCLA consent decrees upon
referral for litigation milestones such as entry and lodging in
court.
Also, no Agency-wide compliance tracking system exists for
CERCLA consent orders. Several Regions indicate that they have a
tracking data base system for major milestones of CERCLA consent
orders. Management in these program offices regularly receives
compliance reports from these tracking systems on all CERCLA consent
orders.
28
-------
Issue: • The Agency has been criticized for failing to track
compliance with CZRCLA consent orders and decrees in a
comprehensive and accessible manner.
Implementation Steps:
o Regions should establish management mechanisms to allow
appropriate oversight of consent decree and consent order
compliance.
o Headquarters will explore the resource implications
of such mechanisms and systems upon the Regions.
o Headquarters should help Regions establish their own consent
decree and order tracking systems. Regions without such
systems should be encouraged to adopt a system comparable to
the systems already in place in other Regional offices.
Topic: 2. Penalties for Non-compliance
Status and Accomplishments:
The Agency may pursue stipulated penalties and statutory
penalties (under section 109) for noncompliance with orders and
decrees. EPA may pursue penalties (under section 106)
for non-compliance with orders issued under section 106*. Regions
have the responsibility of entering all penalties received from
PRPs, including stipulated penalties, into CERCLIS.
The Agency has information that indicates that it has sought
penalties from PRPs for non-compliance at eight sites. Three
penalty cases were settled through consent decrees. One case
resulted in a judgment for the Agency. The other four referrals are
still pending. However, although the data has not yet appeared on
CERCLIS, EPA is collecting penalties at other sites.
Issue: The Agency has been criticized for failing to collect
penalties in the event of non-compliance with consent orders
and decrees. Regions have in the past been reluctant to
pursue penalties due to resource and time constraints.
Implementation Steps:
o To facilitate penalty collection, Headquarters should train
Regional Project Managers (RPMs) to develop an "enforcement
trail" by documenting important meetings and decisions.
9 "Guidance on Use of Stipulated Penalties in Hazardous Waste
Consent Decrees," September 21, 1987, OSWER Directive number
9835.25.
29
-------
o Regions should circulate among program and ORC management
reports generated by Regional management or tracking
systems. This will notify management of non-compliance.
o Headquarters should explore providing Regions with
additional workforce or budget supplements for penalty
collection.
J. Cost Recovery
Topic: 1. Recovery of Costs
Status and Accomplishments
The cost recovery program serves a dual purpose for CERCLA
enforcement: recovery of revenues for the Fund, and encouragement
of voluntary PRP cleanup action by eliminating incentives for PRPs
to wait for the government to do the work. It is inevitable that
cost recovery lags behind Fund expenditure.
EPA has approximately 26 current guidance documents which address
cost recovery indirectly and 13 that address cost recovery directly;
3 more are in draft. Specifically, the Superfund Cost Recovery
Strategy, guidance on Cost Recovery Actions/Statute of Limitations,
guidance on Direct Referral of cases to DOJ, guidance on Documenting
Decisions not to take Cost Recovery Actions, guidance on Financial
Management of the Superfund Program, and State Superfund Financial
Management and Recordkeeping guidance have been issued since the
passage of SARA in October 1986.
Issue: EPA is criticized for accepting cost recovery settlements
for less than one hundred percent of total cost*. However,
not all Fund expenditures are feasible for cost recovery.
When a settlement has been reached for a large portion of
costs, it may be prohibitively expensive to negotiate or
litigate for small remaining costs. Further, as'discussed
in the Superfund Management Review, the costs attributable
to abandoned sites (sites with no PRPs) should not be
attributed-to other sites for collection; also comparisons
between revenue returned to the Fund and total amounts
authorized for the Fund are misleading.
Implementation Steps:
o As stat«d in the Superfund Management Review, EPA will
identify realistic expectations for the cost recovery
program — perhaps in part by clarifying what costs are
realistically available for recovery and defining 100
percent.
o Headquarters and the Regions will communicate cost recovery
priorities which stress receiving ths highsst rsturn for
each dollar invested. To effectively implement this goal,
30
-------
these priorities should be prcr.ptly communicated to Congress
and the public.
Topic: 2. Documentation of All Costs
Status and Accomplishments:
PRPs are increasingly focusing on the documentation supporting
EPA's cost expenditures. However, documentation of all costs is a
bur.densome process. Enforcement resources can be used more
efficiently if cost documentation questions are litigated less
frequently. Further, some Federal agencies lack the appropriate
systems to completely document their costs associated with working
on a Superfund site.
In FY88, EPA convened a cost documentation work group to
address some of these issues impeding cost documentation. As
required in the Superfund Management Review, EPA is developing a
regulation which identifies the documentation necessary to establish
costs and expenditures in a cost recovery proceeding.
Issue: To continue its aggressive approach on cost recovery, EPA
should clarify or standardize cost documentation procedures.
Implementation Steps:
o As suggested in the Superfund Management Review, EPA will
enter into a formal agreement with some federal agencies on
acceptable cost accounting and documentation standards.
o Headquarters should continue implementation of database
systems (Integrated Financial Managment System, Superfund
Transactions Automated Retrieval Systems, category reports).
o Regional offices should consider establishing individual
cost documentation/cost recovery support units to
standardize procedures, conduct record maintenance training,
and develop necessary expertise.
Topic: 3. Removal Coat Recovery
As stated in the Superfund Management Review, the three year
statute of limitations under CERCLA/SARA for removal actions has
prompted an increased number of judicial referrals. The legal
resources required to avoid the possibility of expired claims
competes with legal resources needed for RD/RA negotiations and
enforcement. Although EPA's top priorities for cost recovery action
are remedial actions and removal actions that are valued at over
$200,000, some litigation of small cost recoveries is essential to
maintain PRP incentives to settle.
31
-------
Issue: The Agency cost recovery strategy does not precisely
identify priorities and procedures for addressing removal
cost recovery actions.
Implementation Steps:
o As stated in the Superfund Management Review, Headquarters
will establish a strategy for cost recovery of removal
actions. The process should meet the objectives of
maximizing revenue and maintaining incentives for PRPs to
settle without diverting resources from other critical
stages of the enforcement process. The strategy may
include:
a minimum number of judicial referrals, to maintain the
incentive to settle;
use of arbitration or alternate dispute resolution (for
cases under $500,000) prior to judicial referral; and
an improved process for ordering or negotiating and
overseeing PRP removal actions, to minimize the number
of cost recovery actions that will be needed in
subsequent years.
32
-------
III. PROGRAM RELATIONSHIPS
The Superfund program is administered by a number of EPA
offices (e.g. Office of Solid Waste and Emergency Response, Office
of Enforcement and Compliance Monitoring, Office of Administration
and Resource Management), other Federal Agencies and the States.
This Plan recognizes that revisions and/or changes to the current
relationships established between these governmental entities should
be explored. Critical to a successful Superfund program is
streamlining or improving the present approach. Identified below
are major areas where adjustments to the process should assist in
achieving the goal of a more efficient and productive Superfund
enforcement program.
A. FUND/ENFORCEMENT INTEGRATION
The Superfund Management Review has recommended that the Agency
establish an integrated enforcement and response program. The
Agency should encourage or compel PRPs to conduct the response
action at all sites where viable PRPs are found before using the
Fund, except in emergencies. This "One Superfund Program -
Enforcement First" concept should lead to development of proper
skill mixes in Regional offices with staff working on a complete
program approach. The following recommendations from the Superfund
Management Review are implementable methods of restructuring the
existing two programs' relationship.
o The Agency should develop an integrated timeline for both
enforcement and Fund-financed activities. The timeline should
include deadlines for completing negotiations and issuing
administrative orders. The timeline should also reflect program
goals for completing phases of the response action, and serve as
a benchmark for assessing progress at sites.
o The Agency should encourage a proper skill mix for support of
cleanup work, specifically including enforcement actions. The
Agency should encourage creating specialized units for
enforcement support activities, such as PRP searches, cost
recovery efforts and administrative record support in the
Regions.
Listed below are additional methods to assist in integrating
response and enforcement activities.
1. Site Classification Svste»
Issue: Until recently, the Agency classified site* either as Fund
or enforcement-lead. This classification served two
purposes. First, it identified site* to which enforcement
activities would be addressed, second, it was used for
budgeting purposes to estimate the FTE and dollar needs for
managing the program. For an integrated progran the first
33
-------
purpose no longer exists. The second purpose (budget
estimating) is still necessary, however, but must be
structured to support the notion of enforcement actions
being considered for every site.
Implementation Step:
o Headquarters has eliminated the site classification system.
The integrated timeline will make clear that each site
should undergo basic enforcement steps, beginning with early
PRP searches. Regions should continue to estimate for
budgeting and planning purposes which sites are likely to be
enforcement or Fund-lead: Increased flexibility in funding
and the manner in which SPMS commitments are formulated will
allow (and in fact encourage) greater use of enforcement
tools. (See item 3. Flexible Funding.)
2. Integrated Priorities
Issue: The integrated fund and enforcement priorities matrix was
originally designed to: identify relative program priorities
by listing major program activities for which resources are
provided; and to provide a framework to estimate the funding
levels needed to support the activities. The overall goals
identified in the priorities matrix echo some of the major
themes of the Superfund Management Review: mitigate
immediate threats; move sites into cleanup using PRP
resources as a first resort; and maintain a baseline of
supporting activities.
Implementation Steps:
o The Agency should adopt for use in planning, budgeting and
management activities the integrated priorities matrix
approach for Headquarters and the Regions.
3. Flexible Funding
Flexible funding enhances the ability of the Regions to utilize
funds initially targeted for Fund activities to leverage against
PRPs in enforcement negotiations. The threat to use the Fund and
various enforcement tools (e.g., §106 administrative orders (AOs)
and judicial referrals) will achieve direct results by encouraging
or compelling private parties to conduct the work. The additional
gain would be the establishment of a credible threat that encourages
PRPs to participate in the settlement process.
Issue: Fund flexibility requires early involvement of the
enforcement program in identification of PRPs and
development of a thorough case strategy. After the PRP
search and case strategy development phase, a decision can
be made whether to proceed with the Fund or commence
34
-------
enforcement activities. The presumption should be that the
Agency will first attempt to pursue a negotiated PRP action.
If the choice is made to enforce, a defined time period for
negotiations must be established. If negotiations fail, one
of two events should occur: 1) take additional enforcement
action such as a §106 action or 2) proceed with Fund-
financed activity without any significant delay.
Implementation Steps:
o A multi-million dollar fund will be maintained at
Headquarters in FY 90 to backup RD/RA negotiations. This is
in addition to the lump sum RD account which the Regions can
adjust between sites. Headquarters and Regions should
explore whether more flexibility is needed.10
4. Headquarters/Regional Organization Review
Issue: The present organizational structure of the Agency,
especially Headquarters, might benefit from potential
rearrangement or modifications. Some Regions have already
reorganized their Superfund offices and successfully
integrated the Fund and enforcement elements.
Implementation Steps:
o As stated in the Superfund Management Review, Headquarters
will consider the benefits of conducting a review of
Headquarters and Regional operations for possible
restructuring of some of the offices and/or functions.
B. HEADQUARTERS/REGIONAL/DOJ RELATIONSHIPS
1. Consistent Goals
Issue: Technical staff and attorneys perceive that each have
different goals when pursuing settlements.
Technical staff are tasked with achieving a quick and technically
proper cleanup while attorneys are tasked with developing legally
defensible and protective documents.
Implementation Steps:
o Headquarters, Regions, and the Department of Justice (DOJ)
should identify and commit to shared short and long-tera
goals and objectives for the program (e.g., in the
10OERR has established a workgroup to review problems and/or
issues related to flexible funding.
35
-------
Interagency Agreement (IAG)) with a clear statement of their
relationship to Congress and the public. These shared goals
nust encompass the enforcement program as a whole as well as
individual site situations. As stated in the Superfund
Management Review, EPA (Headquarters and Regions) and DOJ
will hold a top-level conference to ensure consensus on
these goals.
o As stated in the Superfund Management Review, EPA and DOJ
will establish a mandatory site management planning process
for use by Headquarters, Regions and DOJ that would set out
a coordination process among offices and Agencies involved.
o Whenever appropriate, EPA should provide explicit and early
opportunities for DOJ involvement in site management
planning and negotiations. This will require development of
routine communication and management systems to assure all
necessary offices are involved.
2. IAG/Accountabi1itv/Resources
Issue: There is frustration in both EPA and DOJ at their perceived
inability to hold the other organization accountable for
activities critical to the success of the enforcement
process. The legal anas of the enforcement process do not
view themselves as full partners in budget planning.
Regional counsel are frequently perceived as underfunded.
Implementation Steps:
o Headquarters should assure adequate DOJ funding through the
IAG that is closely coupled with their accountability for
timely enforcement action.
o Headquarters should involve Regional counsel and DOJ in the
determination and accountability of the Superfund
Comprehensive Accomplishments- Plan (SCAP) and Strategic
Planning and Management System (SPMS) commitments, and
development of case/site management plans.
3, Delegations/Management
In FY 88, two different civil judicial enforcement authorities
were delegated almost entirely to the Regional Administrators.
Settlement authority is now delegated to the Regional Administrators
for cases to be settled involving past and future costs totaling
under $500,000. Additionally, the Assistant Administrators for the
Office of Solid Wast* and Emergency Response and the Office of
Enforcement and Compliance Monitoring signed a memorandum waiving
their concurrence on settlements for numerous categories of CERCLA
casee.
The authority to refer CERCLA civil judicial actions to DOJ was
36
-------
modified in April 1939. Under the .new procedures, almost ail
classes of cases that nay be brought under CERCLA are directly
referred to DOJ (Office of Waste Programs Enforcement/Office of
Enforcement and Compliance Monitoring review without concurrence) .
Issue: There "is concern that situations may have occasionally
arisen in which EPA Headquarters should have been consulted
on a particular case but notification is provided late, and
commitments may have already been made at the negotiations
table. Further, the reduction in the level of Headquarters
review of cases that has occurred, as a result of recent
delegations, could force DOJ into the role of ensuring
national uniformity in settlements.
Implementation Steps:
o The role of Headquarters and DOJ should be established as
early as possible in development of a case involving a
potential referral or settlement. Headquarters should
complete its work on establishing protocols for coordinating
pre-referral negotiations among the Regions, Headquarters
and DOJ. Identification of roles and responsibilities may
assist in providing early warning of cases or issues that
may require Headquarters concurrence/consultation.
Issue: Regional and DOJ staff have questioned the effectiveness of
the Settlement Decision Committee (SDC) , which has no
provision for reaching final agreement absent consensus
except by escalating issues to EPA Assistant Administrators
and the DOJ Assistant Attorney General.
Implementation Steps:
o Headquarters should create an enforcement expediter position
within the Agency with the primary function of facilitations
prompt resolution of enforcement or settlement issues among
Regions, DOJ or Headquarters.
o Headquarters should revitalize and streamline the SDC
process to quickly resolve case-specific issues. For
example, strive for a goal of a 5-7 working day deadline for
a meeting.
4 .
Issue: Communication between Regions, Headquarters, and DOJ is
often difficult. There is also a need to assure that all
three parties have access to the same information resources.
Database systems currently used by OECM, OWPE, and DOJ are
incompatible.
Implementation Steps:
37
-------
o The Agency should assure that enforcement and settlement
decisions are communicated in a timely fashion, while
assuring that enforcement sensitive information is
protected. Development of a national training and
information exchange program for communicating current
enforcement issues will assist in the effort.
o Headquarters and DOJ should quickly reach agreement on and
distribute model settlement language. The draft model
consent decree now being developed can help significantly.
o Headquarters and DOJ should study the possibility of
integrating their individual database systems.
o Headquarters should continue the development of the
Enforcement Bulletin in conjunction with the Waste
Attorney's Bulletin and effective communication of
negotiation positions.
Issue: Technical and legal questions overlap in the Superfund
enforcement process. Technical staff argue that lawyers
intrude on technical prerogatives, while attorneys question
the sensitivity of technical staff to legal implications.
Implementation Step:
o The Agency should implement "cross-training" sessions for
technical and legal staff to sensitize them to the concerns
and view points of each others' offices.
C. STATE/FEDERAL RELATIONSHIP
EPA and State representatives from the Superfund Management
Review agreed that the State/Federal relationship should be
reexamined after the release of the Administrator's report. The
State/Federal relationship is a critical part of the program and one
that needs a comprehensive review. The fostering of a strong
State/Federal partnership has been promoted in the last few years
and strides have been made in improving both communication between
the Regions and States and commitment of resources (both staff and
grants) to States to assist in their program development 11
11 "Interim Final Guidance Package on Funding CERCIA State
Enforcement Actions at NPL Sites," April 7, 1988, OSWER Directive
number 9831.6a-6d. "Counting State-lead Enforcement NPL Sites
toward the CERCLA |116(e) Remedial Action Start Mandate," October
21, 1988, OSWER Directive number 9831.8. "Supporting State Attorney
General CERCLA Remedial and Enforcement Response Activities at NPL
Sites," June 21, 198.8, OSWER Directive number 9831.7.
38
-------
Issue: Presently, there is no comprehensive framework for
State/Federal relations in CERCLA enforcement. Both
entities have a role to play in the cleanup of National
Priorities List (NPL) and non-NPL sites. Limits in the
number of State/Federal conflicts and resource duplication
can b_e achieved if consistency in approach and guidance can
be attained. Additionally, gains in expertise and
capabilities by the States can only aid EPA in addressing
the cleanup problems.
Implementation Steps:
o EPA should strive to minimize whenever possible its
oversight of State response actions, and maximize the use of
qualified States for oversight of PRP cleanups. State-lead
enforcement actions can assist the Agency in meeting its
statutory goals for remedial action. Regions should be
willing to commit and provide financial resources, for State
enforcement activities.
o The Superfund Management Review recommends working to
resolve the fundamental policy question of what the long-
term role of States will be in the Superfund program. EPA
and the States will work to develop short and long-term
strategies to enhance State program capability, improve
State performance at State-lead Superfund sites, and foster
State remedial activity at sites not on EPA's NPL.
The EPA/State Enforcement Workgroup will be instructed to
prioritize key issues in the State/Federal relationship and
to develop options and recommendations for the EPA
Management/ State Environmental Commissioners meetings.
D. COMMUNITY INVOLVEMENT AND PUBLIC OUTREACH
The Superfund Management Review took a close look at the need for
the Agency to be more responsive to citizens' concerns w*th and
interests in the Sup«rfund program. The Superfund Management
Review's recommendations endorse increased involvement by citizens
in Superfund decisions at each stage of the Superfund process and
encourage managers to be more responsive to issues raised by the
public. On« critical area for enforcement that the Agency must work
to change is the belief that PRPs are provided better information
than the public.
The enforcement program plays a major role in educating the
public regarding the need to work with PRPs to move settlements
39
-------
along and achieve site cleanup12. The public will need to
understand the rationale behind the "enforcement-first" approach.
The public can be a great ally for the program once the public
understands the process the Agency undergoes to bring a PRP to
settlement.
Issue: Currently, EPA lacks a complete strategy for communication
of the goals of the Superfund enforcement program on a
national scale. There are two factions to which outreach
must be directed: 1) parties with direct interest (e.g.,
PRPs, environmental organizations, media) and 2) the general
public.
Implementation Steps:
o The enforcement program should look to expanding the use of
simple fact sheets and pamphlets that the Remedial Project
Managers (or On-Scene Coordinators) can distribute to the
public. The public's awareness of the various tools they
have regarding information (i.e., administrative record file
or information repositories)can assist in involving the 4
public earlier in the decision-making process.
As the Superfund Management Review highlighted, a commitment
of resources is essential for Regions to provide enough
staff to work more closely with the public.
o The Superfund Management Review recommended making public
education a Superfund priority for all front-line managers
and staff. EPA should educate the public (Congress,
environmental and industry groups, State and local
organizations and general public) as to the realistic
expectations and achievements of the Superfund program
(enforcement and Fund) through such actions as public
forums, speeches, and press releases. Such activities can
stress the reinvigorated use of the enforcement process,
plus create a positive image for those PRPs who choose to
settle with EPA and send a negative message about
recalcitrant PRPs.
12 "Community Relations during Enforcement Activities and
Development of the Administrative Record," November 3, 1988, OSWER
Directive number 9836.0-1A.
40
-------
IV. RESOURCE IMPLICATION'S
This Superfund Enforcement Strategy and Implementation Plan
does not attempt to quantify the resource implications of these
recommendations. However, the following conclusions can be drawn
from the report.
o Enforcement is staff intensive. Process and management
reforms can achieve only limited improvements without
resources. Thus, the recommendations of this Plan are
contingent upon adequate resources.
o Increased resources for enforcement and oversight of private
party response is ultimately a worthwhile investment,
because it allows EPA to leverage private party resources
for cleanup. Fund-financed response postpones but does not
eliminate the need for enforcement through cost recovery.
o Increased enforcement activity should help to leverage
additional private party resources, but it is
counterproductive to cut the resources available for Fund-
financed design and construction. The threat of Fund use
for response action is a demonstrated effective incentive
for private party cleanup.
o EPA should establish consistent priorities by identifying
the appropriate resources and the relative priority of
specific steps in the process. EPA must minimize erratic
and inconsistent signals 'and competing demands on
enforcement personnel.
o Enforcement activities are critical at all stages of
response. It is not possible to run an effective program by
diverting resources from one stage of the process (e.g., PRP
searches) to another (e.g., negotiations for remedial design
and remedial action). The enforcement process needs to be
sustained at each step.
o Many sites are reaching the stage of negotiations for
remedial design and remedial construction with PRPs willing
and abl* to do work and commit resources. EPA must have
adequate resources for negotiations and oversight at these
sites.
o EPA can male* the enforcement process more efficient. For
exampl*, a cost recovery regulation should make the cost
recovery process more efficient.
o Implementation of the recommendations in this Plan may
require increases in the enforcement budget for FY90 and
FY91.
41
-------
APPENDIX A
HOUSE AND SENATE APPROPRIATIONS COMMITTEES REPORT LANGUAGE
HOUSE APPROPRIATIONS LANGUAGE
In attempting to meet the statutorily mandated schedules for
remedial investigation/feasibility studies (RI/FS) and cleanup
starts, EPA has relied primarily on contractors paid with trust fund
monies instead of aggressively seeking private party cleanups.
Unfortunately, the enforcement program has come to be viewed by EPA
staff as too burdensome and time consuming to justify serious
attention or resources. The overwhelming reliance on trust fund
financing as the path of least resistance has created two serious
problems. First, it squanders Superfund's finite resources on a
relatively few projects, limiting the number of sites which can
ultimately be cleaned up. This is contrary to the legislation's
clear intent that the trust fund be used to "leverage11 privately
financed actions wherever possible.
Second, this approach has undermined the credibility of the
Superfund enforcement program. Instead of creating incentives for
private parties to accept early responsibility for cleanups, EPA'a
passive approach to enforcement has rewarded recalcitrants by giving
them, at a minimum, a "free ride" during the lengthy feasibility
study and design process. Unless these two problems are corrected
through fundamental changes in management philosophy and approach,
the Superfund program is destined to failure.
The Agency's reliance on trust fund monies to initiate remedial
actions is based on the supposition that reimbursements can be won
from private parties in subsequent cost recovery actions. However,
EPA1s cost recovery program is either non- existent or ineffective
in all but one region. Over $300,000,000 in claims ha* already been
forfeited due to cost accounting deficiencies. And the policy of
postponing recovery initiatives until years in the future has
reduced prospects for successful recovery and undermined the
credibility of Superfund enforcement in general. An underlying
cause of these problems is that EPA's internal management system and
source allocation process provide absolutely no incentives for site
managers and regional staff to enforce private cleanups and win
early cost recoveries.
The Environmental Protection Agency is directed to submit a
report by January 1, 1989, providing recommendations for program,
policy, and management changes which will create meaningful,
positive incentives 1) for regional staff to achieve enforcement
A-l
-------
settlements and cost recoveries, and 2) for responsible parties
to settle and undertake privately financed RI/FS's and cleanups. In
undertaking this evaluation, the Agency is urged to consult with the
states, the environmental community, responsible parties and other
experts. Up to $500,000 is authorized to be reprogrammed for this
purpose in 1988.
SENATE APPROPRIATIONS LANGUAGE
The Superfund Enforcement Program, due to its inherently
adversarial nature, often leads to disagreements and delays. The
Committee is aware that enforcement philosophies and strategies may
differ significantly among EPA's Office of Waste Programs
Enforcement, Office of Enforcement and Compliance Monitoring, Office
of General Counsel, regional offices, and the Department of Justice.
Much better defined procedures, policy guidelines, and criteria are
needed in a timely fashion to give consistency to the Superfund
program. In order to accelerate cleanup activities the Agency is
instructed to undertake a formal evaluation of Superfund
enforcement. Specifically, it should determine how the three
headquarters enforcement-related offices, the program office and the
Department of Justice cause delays, misdirection, inconsistency and
otherwise may delay regional offices in their Superfund enforcement
effort. This effort should develop a consistent framework of
enforcement policies and the procedures needed to assure their
implementation. Specific recommendations should also address ways
to assure policy level review of enforcement agreements in the
Regions on an expedited basis; policy level reviews should be
defined with some specificity; and provisions for referral to
Headquarters of cases requiring policy level reviews in an expedited
basis should be provided.
A-2
APPENDIX B
-------
LIST OF ENFORCEMENT ISSUES RAISED BY REPORTS ON SUPERFUND
The following is a list of studies of Superfund conducted from
1986 until the present. The studies are arranged according to the
organization that prepared them.
CONGRESSIONAL
Office of Technology Assessment (OTA)
1. "Are We Cleaning Up? Ten Superfund Case Studies," OTA, June
1988.
Numerous findings were provided. No recommendations specific to
enforcement were included.
2. "Assessing Contractor Use in Superfund," OTA, January 29, 1989.
No recommendations specific to enforcement were included.
General Accounting Office (GAO)
3. "Superfund: Overview of EPA's Contract Laboratory Program," GAO,
October 1987.
Comprised of a fact sheet. Did not raise issues.
4. "Superfund: Improvements Needed in Workforce Management," GAO,
October 1987.
No recommendations specific to enforcement were included.
5. "Superfund: Extent of Nation's Potential Hazardous Waste Problem
Still Unknown," GAO, December 1987.
Mo recommendations specific to enforcement were included.
6. "Superfund: Co«t Growth on Remedial Construction Activities,"
GAO, February 1988.
No recommendations specific to enforcement were included.
7. "Superfund Contracts: EPA Needs to Control Contractor Costs,"
GAO, July 1988.
No recommendations specific to enforcement were included.
B-l
-------
8. "Report on Environmental Protection: Protecting Human Health and
the Environment Through Improved Management," GAO, 1988.
No recommendations specific to enforcement were included.
9. "Report on Hazardous Waste: Future Availability of and Need for
Treatment Capacity are Uncertain," GAO, 1988.
No recommendations specific to enforcement were included.
10. "Superfund: Missed Statutory Deadlines Slow Progress in
Environmental Programs," GAO, January 26, 1989.
No recommendations specific to enforcement were included.
11. "Interim Assessment of EPA's Superfund Program," GAO at
Senator Lautenberg's request, October 1988.
In October, 1988, the GAO delivered to Senator Frank Lautenberg
in his capacity as chairman of the Subcommittee on Superfund and
Environmental Oversight, an interim report on Superfund
Enforcement. The purposes of the GAO study were three:
assessment of the agency's use of its enforcement tools to
achieve CERCLA goals; analysis of ways to improve the cost
recovery program; and evaluation of the adequacy of the Agency's
Superfund planning and management systems.
The interim report covered the first two areas. It found that
the enforcement program could do better in using available tools
and in recovering costs. In particular, the study concluded
that:
o the adequacy and timeliness of EPA searches for
potentially responsible parties liable for site cleanup
are continuing problems;
o the tracking and follow-up of information request
letters used to further establish the liability of
potentially responsible parties for a site have been
inconsistent;
o reasons for not using unilateral administrative orders
to compel responsible party cleanup of sites are not
fully documented;
B-2
-------
o special notice letters used to start negotiations for
responsible party cleanups are not being issued on a
timely basis; and
o efforts to recover Superfund monies used to clean up
"sites have been untimely and have been hampered by
accounting system problems.
Senator Lautenberg
12. "Sixteen Recommendations for Improving the Superfund
Program." Two reports dated December 1987 and October 1988.
Of the sixteen (actually seventeen) recommendations/ the
following were specific to enforcement:
o Training institutes should emphasize contracts
management, legal training and site management;
o EPA should improve site work oversight by assuring that
site managers receive backup from other Regional staff
and by keeping caseloads manageable;
o EPA should replenish the fund, and push the program
forward by aggressively using all its enforcement
tools, and establish enforcement consistency throughout
the Regions. Vigorous enforcement will also provide
incentives for settlements;
o EPA should also set aside funds for cleanup in the
event settlement negotiations fail;
o To move cases along more efficiently, EPA should push
for more specialization and more thorough case
development by Regional legal staff; and
o EPA should also explore whether creating legal
expediter positions in th« Regions and/or Headquarters
can streamline the process.
House Appropriations Committee
13. Houo* Appropriations Committee Study of. Superfund, December
1988.
B-3
-------
Of the ten reports presented, two covered issues specific to
enforcement:
!• Status of EPA's Superfund Program. Specifies that getting
polluters to be responsible for cleanup was a major goal which
EPA has .not recognized. Accuses EPA of running a public works
program instead. Calls for improved performance in both
enforcement-led initiatives and cost recovery.
2. EPA/DOJ Management of Enforcement. Settlement negotiations
with PRP1s-generally protracted, difficult, and complex. There
are problems especially with multiple PRP's and multiple
Federal/State levels of review. EPA case development activities
(relating to cost documentation, administrative record, PRP
searches, and evidence supporting liability) could be improved.
Also, improvements could be made in cost recovery performance.
STATES
Association of State and Territorial Solid Waste Management
Officials (ASTSWMO)
14. Letter to Lew Crampton, EPA, ASTSWMO, February 7, 1989.
The ASTSWMO letter raised the following issues and
recommendations:
Finding 1: Several States and EPA have proven that with adequate
funding to back up enforcement negotiations, the number of
enforcement settlements increased dramatically.
Recommendation 1: Use available funds to support
enforcement negotiations first, then for the remedial
process.
Finding 2: Some lawyers by their training (case-by-case methods)
are not likely to be effective leaders in increasing
Superfund/RCRA case handling production.
RecovMndation 1: Allow program personnel to regain control
of thev program from the lawyers.
Finding 3t EPA has been relying too heavily on Fund-lead
activities while not placing enough emphasis on getting PRPs to
undertake or pay for cleanups. This is contrary to congressional
intent.
B-4
-------
Recommendation 1: ^..^egrate the fund-financed and
enforcement efforts so one complements the other under a
program strategy which seeks PRP commitments in the first
instance and spends money where PRPs are unwilling or unable
to do the work.
Recommendation 2: EPA should work with States to provide
tools such as funding and standardized enforcement
approaches and agreements which help build State enforcement
programs.
National Governor's Association (NGA)
15. Recommendations made to the Bush transition team, NGA,
January 30, 1989.
NGA provided the following issues and recommendations:
Finding 1; EPA should place greater emphasis on compelling
cleanup by responsible parties. While using the Fund at sites
enables EPA to move faster at many sites, it inevitably threatens
the long-term solvency of the Trust Fund.
Recommendation l: Help build State enforcement programs by
providing States with tools such as funding, flexibility to
use Fund monies if negotiations fail, and standardized
documents to execute enforcement agreements.
National Association of Attorneys General (NAAG)
16. Recommendations for Environmental Protection in the 1990's,
NAAG, February 9, 1989.
The issues and recommendations raised by NAAG are as follows:
o Expand funds available for State-lead enforcement
cases»
o Fund States to assist in cost recovery efforts.
o Decisions regarding using RCRA or CERCLA authority at a
site should be made jointly by EPA and the State.
B-5
-------
o Increase the emphasis on enforcement actions against
responsible parties.
o Funds should be earmarked for enforcement and States
siiould be notified of their availability.
NON-GOVERNMENTAL
17. "Making Superfund Work," Clean Sites Inc., January 1989.
Clean Sites, Inc.'s major recommendations are as follows:
Recommendation 1: Maximize enforcement and settlement to
increase responsible party cleanups.
1. To increase the number of site cleanups while
conserving Fund monies, EPA should accelerate
implementation of a strategic enforcement program:
a) EPA should direct a significant number of
administrative orders and judicial enforcement
actions toward recalcitrant responsible parties to
impel them to undertake or participate in site
cleanups;
b) EPA should increase the number of cost recovery
actions brought against responsible parties, where
government funds have been used to conduct cleanup
activities, and should file these actions sooner.
2. EPA should implement incentives to obtain responsible
party agreements to undertake site cleanups, such as
structuring settlements so that viable non-settlors are
penalized in subsequent litigation by paying more than
if they had settled.
3. EPA should establish realistically high goals for the
number of responsible party cleanups and hold its
Regional offices accountable for meeting these goals
through a combination of enforcement actions and
settlements.
4. EPA should implement incentives to obtain responsible
party agreements to undertake site cleanups including
expanding the use of mixed
B-6
-------
funding and de minim is settlements, making non-settlors
pay more after subsequent litigation, looking to non-
settlors first to cover subsequent site costs.
Recommendation 2: Improve the remedy-selection process
1. EPA should explai- r.zw the different selection of
rer.edy criteria -n . Action 121 are to be evaluated and
weigned.
2. EPA should continue to encourage "early actions"
including those undertaken by PRPs and develop "model
3. An - sropriate array of treatability studies should be
incluaed in the RI/FS at any site where there is
significant uncertainty regarding the remedies being
considered.
4. Headquarters and Regions should establish panels to
review technical issues.
5. EPA should establish and make easily accessible and
well publicized the library of Records of Decisions
(RODs) for Regional use.
6. EPA should aggressively implement the technical
assistance grant program.
Recommendation 3: Manage the Superfund program for optimal
progress
1. EPA should continue to delegate site-specific decision
making authority to the Regions. Regional
Administrators should be more accountable to
Headquarters .
2. Regional decisions regarding site cleanup technology
should be subject to a limited and expedited
discretionary administrative appeals process to HQ to
ensure consistency and redress administratively any
factual errors.
3. Roles and responsibilities both in the Regions and HQ
should be clearly defined.
B-7
-------
4. Remedial project manager positions should be -upgraded,
and staff should be provided with training.
5. HQ and Regions should not be reorganized at this time.
Recommendation 4: Define new measures of program success
1. EPA should track measures of program success that focus
on achievements (i.e., speed of site cleanup, the
number of sites financed by PRPs), rather than focusing
primarily on inputs (i.e., RI starts).
2. EPA should provide the public with understandable,
timely and easily acceptable information regarding
Superfund progress.
18. "Blue Print for the Environment," Consortium of
Environmental Groups, December 1988.
Of the major recommendations outlined, the one specific to
enforcement is as follows:
Recommendation: The Environmental Protection Agency should
make greater use of the Superfund statute giving the Agency
authority to order potentially responsible parties to
conduct remedial investigations and feasibility studies and
sit* remedial actions; this authority include* unilateral
administrative orders which trigger treble damage penalties
if violated and strict joint and several liability.
Implementation Steps:
1) By June 30, 1989, each EPA Regional Office should
nominate at least twenty percent of the sites at which
it is presently negotiating with PRPs for a unilateral
administrative order to be followed by an enforcement
suit if the administrative order is not complied with.
Attorneys from the Regional Offices, the Office of
Enforcement and Compliance Monitoring and the
Enforcement Section of the Department of Justice's
Lands and Natural Resources Division should work
together to develop these lawsuits.
B-8
-------
2) By October 30, 1939, the Assistant Administrator for
the Office of Solid Waste and Emergency Response should
report to the appropriate Congressional Committees
(including the Oversight and Investigations
Subcommittee of the House Energy and Commerce
committee) on EPA's progress towards achieving this
goal. By January 1, 1990, each EPA Regional Office
should designate another twenty percent (or more) for
similar treatment; Congress should receive another
report by April 30, 1990.
19. "Right Train, Wrong Track: Failed Leadership in the
Superfund Program," Environmental Defense Fund, Hazardous
Waste Treatment Council, National Wildlife Federation,
Natural Resources Defense Council, Sierra Club, U.S. PIRG,
June 1988.
No recommendations specific to enforcement were included.
20. "Mandate for Leadership III. Policy Strategies for the
1990's," Heritage Foundation, 1989.
The issues and recommendations specific to enforcement are as
follows:
o PRP's should have the option to seek independent
arbitration for cleanup responsibility and costs. EPA
should be limited to assigning costs proportionate to
each party's share of responsibility if parties agree
to binding arbitration. Once an EPA-sup«rvis«d cleanup
is completed/ all firms that complied with the findings
under arbitration should be released from future
private tort liability. Questions of liability for
injuries incurred prior to cleanup should be left up to
the states. Firms refusing to participate could still
be sued for the remaining cost of the cleanup.
21. "Toward A Mora Effective Superfund Enforcement Program,"
Environmental Lav Institute, March 1989.
The major issues, findings and recommendations of the ELI Report
are outlined below:
A. ELI evaluated two major aspects of the Superfund enforcement
prograa: the legal enforcement structure (including
policies, procedures, guidance, law and
B-9
-------
court decisions), and the institutional arrangements for
implementing the Superfund enforcement program.
B. The enforcement analysis provides a theory of enforcement
from which basic principles are derived, describes existing
enforcement in the Superfund program, and then applies the
basic principles in an example national enforcement
strategy. The main points are:
1. EPA needs an integrated national enforcement strategy
(jointly with the Department of Justice) which is
vigorously implemented because:
a. a national strategy is the most effective,
especially with limited resources; and
b. the reasonable expectation of punishment elicits
cooperation.
2. The national enforcement strategy should be based on
the principle of creating a reasonable expectation
among responsible parties that:
a. it will be less costly to fulfill their legal
obligations on the government's terms than to fail
to meet those obligations; and
b. the risks of trying to escape the costs of
cooperation is outweighed by the risk of incurring
the cost of government detection and punishment.
3. The tasks necessary to implement this principle are:
a. create the legal obligation by identifying the
site, response action, and responsible party, and
making the requirement explicit (order* for work
or demands for payment);
b. detect those parties who are responsible for
cleanup;
c. communicate to the responsible parties their
obligations and the risks and consequences of
failing to comply;
B-10
-------
d. punish those who don't comply in a timely fashion.
4. ELI evaluated the existing Superfund enforcement
program, and found that it did not have a national
strategy or conform to their basic principles.
5. Although ELI provided a detailed, national strategy,
they stress that it is only and example, and that the
key is to have a strategy that meets the basic
principles, is thought through to the details, and is
vigorously implemented. Key elements of ELI's example
enforcement strategy include:
o improved information gathering with respect
to cost documentation, compilation of
administrative record, PRP searches, and
information requests to PRPs;
o greater use of unilateral administrative
orders for response actions, creating the
potential for treble damage recovery for
noncompliance without sufficient cause; and
o communicate the risks of non-compliance,
through publicizing successful cases and
through strategies developed with other
agencies regarding liability under other
laws.
The institutional analysis covers three areas: performance
measures, organizational structure, and resources and
resource allocation. As before, ELI begins with basic
management principles, then covers shortcomings in the
existing program, and finally presents options for
improvement, describing both their pros and cons.v ELI
points out that improvements in the three areas are
complementary and not intended to stand alone.
1. Performance Measures. The existing measures (SPMS &
SCAP) are not consistently successful in motivating
personnel; ignore quality; are not
B-ll
-------
sufficiently linked to the ultimate enforcement
objectives; and do not measure or reward multi-year
performance.
a. Option 1 - replace SPMS targets with enforcement-
oriented targets (such as successful PRP
searches).
b. Option 2 - reduce the number of SPMS & SCAP
targets to a smaller number of performance
measures such as PRP financing as a percentage of
total costs).
c. Option 3 - develop and usa multi-year performance
targets in addition to annual and quarterly
targets.
2. Organizational Structure. Under the existing structure
it is unclear who has ultimate responsibility for a
national enforcement strategy; responsibility for an
enforcement strategy is not accompanied by necessary
authority; personnel (staff and contractors) are not
always appropriately skilled.
a. Options 1-3 - develop a range of options for
restructuring headquarters responsibilities from
major changes to keeping the current structure.
b. Options 4-5 - establish separate information
gathering units and enforcement records units in
each Region to help ensure that the personnel are
qualified.
c. Option 6 - obtain authorization for ORC or OECM
attorneys to represent EPA in court by having the
DOJ selectively deputize qualified EPA attorneys.
d. Options 7-8 - establish DOJ Regional offices to
facilitate their early involvement, or allocate
FTE'« to U.S. Attorney's office* so that they can
provide litigation support to EPA Regional
offices.
• » Option 9 - redraft and enforce the MOU with DOJ in
order to exercise greater control over the
enforcement program.
B-12
-------
f. Option 10 - improve the training of ORC attorneys.
3. The Resource Allocation Process. There are four
problems associated with the existing system:
o The existing allocation process creates an
incentive system that lowers the priority of
enforcement activities because of the
relationship between performance measures and
resource allocation.
o The use of national average pricing factors
limits the resources available for
enforcement activities, resulting in
inadequate resources for son* Regions.
o Real and perceived restriction* on the use of
resources by Regions reduces their ability to
respond to unexpected enforcement needs by
reallocating resources.
o The site classification system artificially
limits the range of enforcement tools
available for each site and restricts the use
of certain tools at crucial times.
a. Option 1 - Make specific allocations for
preparation and maintenance of administrative
records and cost documentation.
b. Option 2 - Encourage Regional pricing of site-
specific activities instead of using national
pricing factors.
c. Option 3 - Reduce restrictions on the Regions' use
of resources, allowing reallocations to occur to
meet contingencies or address priorities.
d. Option 4 - Create a central fund for remedial
actions to create appropriate incentives for
Regions and PRPs, and provide headquarters with
greater control.
B-13
-------
e. Option 5 - Eliminate the site classification
requirement as fund-lead, enforcement-lead, or
PRP-lead in order to make better use of
enforcement tools.
f. Option 6 - Increase total FTE's for the Superfund
program.
22. "Superfund From tha Industry Perspective: Suggestions to
Improve and Expedite the Superfund Remediation Process,"
Consortium of Industries, February 1989.
The consortium of industry groups provided the following findings
and recommendations:
Finding 1; EPA and industry must cooperate in order to maximize
the number of sites addressed and to avoid squandering money on
nonproductive transaction costs.
Finding 2; Liability is usually not an issue. Main issues of
concern to EPA and industry are settlement, selection of remedy,
and equitable allocation of costs.
Finding 3: The Remedial Investigation/Feasibility Study (RI/FS)
process frequently takes too long, is far too costly, focuses on
irrelevant considerations, fails to collect necessary data,
collects extraneous data, and fails to provide an adequate basis
for selection of a remedy.
Recoaaendation 1: Potentially responsible parties (PRPs)
must be notified of their potential liability prior to the
start of an RI/FS, and EPA and the PRPs should start and
maintain a technical dialogue which will reduce the cost of
technical studies.
Recoaaendation 2: To streamline the RI/FS, the universe of
alternative reaedies reviewed should eliminate alternatives
that are determined to be infeasible, and should focus on
one realistic remedy rather than on every conceivable
remedy.
ITn iiBSMMiliil Inn 3: Model RI/FS's should be developed for
class** of sites.
RecoaiMndation 4: EPA should consider whether some aspects
of the site remediation can be implemented prior to the
completion of the RI/FS. Conversely, EPA should not force
PRP's to undertake interim measures which are not consistent
with the expected final remedy.
B-14
-------
Recommendation 5: EPA and industry should establish a
national clearinghouse on remedies.
Recommendation 6: EPA HQ and Regional staff should meet
with"industry representatives to discuss RI/FS streamlining.
Finding 4: EPA needs to ensure equitable treatment of all
parties. Past settlement negotiations have not pursued enough
recalcitrant parties. As a result settlements have become much
more difficult because cooperative companies are reluctant to
shoulder the costs and burdens of cleaning up the waste of
recalcitrants.
Recommendation 1: EPA should use its investigatory powers
early on in the process to identify and pursue all PRPs at
each site, and should share this information with PRP groups
which may also be pursuing a similar effort.
Recommendation 2: EPA should consider good faith claims
that certain PRPs are not liable or that EPA has
miscalculated their contribution.
Recommendation 3: EPA should use available settlement tools
Cde minimis settlements, NBARS, and mixed funding) to
facilitate settlement, discourage litigation and encourage
cleanups.
pe minimis settlements should be allowed early using a
premium that reflects the uncertainties at the site, and the
money from these settlements should go to an escrow fund for
cleanup, not to the Superfund or to EPA for past costs.
NBARS should be provided as a starting point for allocation
of responsibility, if the PRPs so desire. Development of
presumptive liability shares for owner/operator and
transporters would also facilitate settlement.
Mixed funding should be approved on an expedited basis to
provide seed money to start cleanups more quickly. In order
to b« effective, projects funded this way should not be
subject to federal procurement regulations which were not
designed for this type of situation, and which m£y add
greatly to the delay and cost of cleanup.
B-15
-------
Finding 5: Time and effort of both industry and EPA are wasted
in negotiating language of certain clauses of consent decrees
(CD's) and administrative orders (AO's) which are of little
practical significance (i.e., jurisdiction).
Recommendation 1: Standardize the language of the following
clauses for CD's and AO's: Jurisdiction, Permits, Force
Maieure. Stipulated Penalties, Disclaimer of Liability,
Dispute Resolution, Indemnification of EPA, and Claims
Against the Fund. (Suggested language is provided in the
report).
Finding 6; EPA should begin a dialogue with industry concerning
cleanup standards. There is uncertainty on the part of EPA and
private parties as to what the SARA provisions require and how
they will be implemented. Without clarification, settlements
will be difficult and sometimes impossible.
Recommendation 1: EPA should recognize that in certain
instances complete cleanup may not be appropriate. At some
sites, it may be appropriate to implement an interim
measure, review the site periodically, and require cleanup
in the future if it becomes necessary or a new technology
becomes available.
Finding 7; The following observations have been made regarding
the EPA oversight process:
o the negotiation environment has become unnecessarily
adverserial;
o there is a lack of consistency in the implementation of
the basic program goals and policies among the Regions;
o some EPA staff are inexperienced and lack the
background to monitor contracts or evaluate cleanup
proposals made by contractors or PRPs;
o turnover rat* of EPA personnel is excessive and
exacerbates oversight problems; and,
o EPA is too dependent on contractors.
RecoBMndation 1: EPA should only undertake cleanups where
there are no PRPs who are willing or able to undertake
cleanups.
B-16
-------
Recommendation 2: EPA staff needs to understand that
industry and government must work together to clean up
Superfund sites and that PRPs are willing and eager to work
constructively with EPA, if given the opportunity.
Recommendation 3: Personnel require training to be able to
negotiate with PRPs, negotiation should be courteous and
professional, and once trained, personnel should be given
the authority to strike compromises to promote settlements
which are fair to all involved and are consistent with
guidance from HQ.
Recommendation 4: EPA should channel resources to oversight
of PRF contractors rather than hiring additional contractors
to perform the same work.
Recommendation 5: EPA needs to develop incentives for its
engineers and technical staff to remain with the Agency for
several years. EPA might consider requiring multi-year
contracts, or increasing pay.
INTERNAL: ENVIRONMENTAL PROTECTION AGENCY (EPA1
Office of Research and Development (ORD)
23. "Superfund Outreach,11 EPA, Office of Research and
Development (ORD), December 28, 1988.
No recommendations specific to enforcement were included.
Office of Inspector General (OIG)
24. "Report of Audit: Review of Region Ill's Management of the
Technical Assistance Team (TAT) Services,1* OIG, September
1988.
No recommendations specific to enforcement were included.
25. "Report of Audit: Review of Region IVs Management of
Significant Superfund Removal Actions," OIG, September 1988.
The objective of this Office of the Inspector General (OIG)
report was to evaluate Region IV's effectiveness and efficiency
in managing significant (cost over $1 million) Superfund removal
actions at the Peak Oil site, near Tampa, Florida and the General
Refining sit*, near Savannah, Georgia. The on* principal
"finding" concerning enforcement was that th« EPA did not take
adequate action to pursue a
B-17
-------
responsible party cleanup for the General Refining site. Region
IV disagreed and provided extensive comment.
26. "Audit of EPA's Planning, Negotiating, Awarding, and
Administering of Emergency Response Cleanup Services
Contracts," DIG, September 1986.
No recommendation specific to enforcement were included.
27. "Report of Audit on EPA's Utilization of the Zone I Field
Investigation Team," OIG, July 1988.
No recommendation specific to enforcement were included.
28. "Capping Report on State Performance," OIG, 1988.
The purpose of the report is to inform senior EPA management
officials of the recurring problems identified in cooperative
agreement audits, and to recommend actions or policy changes to
alleviate the problems. The one major issue concerning
enforcement is that EPA Regions were not effectively performing
their oversight responsibilities of the Superfund cooperative v
agreements which contributed to delays in performing goals and
objectives and could adversely affect cost recovery efforts.
29. "General Report on CERCLIS," OIG, 1987.
No recommendations specific to enforcement were included.
B-18
-------
APPENDIX C
ACRONYMS
AO: Administrative Order (Either Unilateral or on Consent)
AOC: Administrative Order on Consent (Consent Administrative
Order)
CERCLA: Comprehensive Environmental Response, Compensation and
Liability Act of 1980
ESD: Environmental Services Division
FAR: Federal Acquisition Regulations
FS: Feasibility Study
IAG: Inter Agency Agreement
IFMS: Integrated Financial Management System
NEAR: Non-binding Allocation of Responsibility
NCP: National Contingency Plan
NPL: National Priorities List
OSC: On-Scene Coordinator
PRP: Potentially Responsible Party
ROD: Record of Decision
RA: Remedial Action
RD: Remedial Design
RI: Remedial Investigation
RPM: Remedial Project Manager
SARA: Superfund Amendments and Reauthorization Act Qt 1986
SCAP: Superfund Comprehensive Accomplishments Plan
SPMS: Strategic Planning Management System
STARS: Superfund Transactions Automated Retrieval System
c-l
-------
TAG: Technical Assistance Grants
UAO: Unilateral Administrative Order
OFFICES OF THE SUPERFUND ENFORCEMENT PROCESS
DOJ: Department of Justice
OC: Office of the Comptroller, OARM
OECM: Office of Enforcement and Compliance Monitoring
OERR: Office of Emergency and Remedial Response, OSWER
OGC: Office of General Counsel
ORC: Office of Regional Counsel, Regions I-X
OWPE: Office of Waste Programs Enforcement, OSWER
OSWER: Office of Solid Waste and Emergency Response
OARM: Office of Administration and Resources Management
C-2
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFRCCOF
MUD WMTE AND ByCMBCY ICSMNK
OSWER Directive * 9833.3A-1
SUBJECT: Final Guidance on Administrative Records for Selecting
CERCLA Response Actions
FROM: Don R.
Assistant Admin is
TO: Regional Administrators, Regions I-X
This memorandum transmits to you our "Final Guidance on
Administrative Records for Selecting CERCLA Response Actions.11
This document replaces the "Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions," previously
issued on March 1, 1989.
The guidance sets forth the policy and procedures governing
the compilation and establishment of administrative records for
selecting response actions under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA) , as
amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA) . This guidance is also consistent with and expands
on Subpart I of the National Oil and Hazardous Substances
Pollution Contingency Plan, 55 Fed. Reg. 8859 (March 8, 1990).
This guidance reflects input received from the Regions,
Headquarters and the Department of Justice. There have been
several drafts of this guidance and comments have been
incorporated. I thank you for your assistance.
Attachment
cc: Director, Haste Management Division,
Regions I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division,
Regions I, VI, and VII
Regional Counsel, Regions I-X
Administrative Record Coordinators, Regions I-x
Primd ON RtcycUd Paper
-------
OSWER Directive No. 9833.3A-1
FINAL GUIDANCE ON ADMINISTRATIVE RECORDS
FOR
SELECTING CERCLA RESPONSE ACTIONS
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Washington, D.C. 20460
-------
TABLE OF CONTENTS
I. INTRODUCTION 1
A. Purpose and Scope of the Administrative Record ... l
B. Judicial Review 3
C. Public Participation 4
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD . . 4
A. Administrative Record coordinator .... 4
B. Multiple Response Actions 6
C. Compilation 6
D. Index 7
E. Location 8
1. General 8
2. Special Documents 9
F. Public Availability 12
1. General 12
2. Remedial Actions . 13
3. Removal Action 14
G. Maintaining the Record 17
H. Confidential File 19
I. Copying 20
J. Micrographics 21
K. Certification 22
III.CONTENTS OF THE ADMINISTRATIVE RECORD ..... 22
A. Remedial Actions 22
B. Removal Actions 26
C. Imminent and Substantial Endangerment 29
D. Public Comments 30
E. Enforcement Actions 31
1. Negotiation Documents 31
2. PRP-Lead RI/FS 32
3. Administrative Orders and Consent Decrees ... 32
F. Excluded Documents 33
G. Draft Documents and Internal Memoranda 33
-------
H. Privileged Documents 34
I. Guidance Documents 37
J. Technical Literature 38
K. Legal Sources 39
L. NPL Rulemaking Docket Information 39
M. RCRA Documents 39
N. Post-Decision Information 40
IV. INVOLVEMENT OF OTHER PARTIES 42
A. States 42
1. State Involvement in Federal-Lead Sites .... 42
2. Federal Involvement in State-Lead Sites .... 43
B. Federal Facilities 44
C. ATSDR 45
D. Natural Resources Trustees 45
V. DISCLAIMER 46
VI. FURTHER INFORMATION 46
GLOSSARY 47
APPENDICES
Appendix-A. Sections 113(j)-(k) of CERCLA 50
Appendix B. Model File Structure 52
Appendix C. Model Index 56
Appendix D. Model Position Description for Administrative
Record Coordinator 57
Appendix E. Compendium of Response Selection Guidance ... 59
Appendix F. Model Transmittal Cover Letter 85
Appendix G. Model Document Transmittal Acknowledgement . . 86
Appendix H. Model Fact Sheet 87
Appendix I. Model Notice of Public Availability 88
Appendix J. Microform Approval Memorandum 89
Appendix K. Model Certification 90
Appendix L. Preamble to Subpart I of NCP 91
Appendix M. Subpart I of the NCP 101
-------
OSWER Directive No. 9833.3A-1
I. INTRODUCTION
A. Purpose and Scope of the Administrative Record
This guidance addresses the establishment of administrative
records under Section 113 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as
amended by the Superfund Amendments and Reauthoritation Act of
1986 (SARA). Section 113(k)(l) of CERCLA requires the
establishment of administrative records upon which the President
shall base the selection of a response action (see Appendix A for
the complete statutory language).
Chapter I of this guidance introduces the purpose and scope
of the administrative record. Chapter II reviews procedures for
compiling and maintaining the administrative record. Chapter III
examines the various types of documents which should be included
in the administrative record. Chapter IV discusses how agencies
outside EPA are involved in establishing the record. Finally,
this guidance includes a glossary of frequently used terms and
acronyms as veil as several appendices.
Although this guidance is written for use by the United
States Environmental Protection Agency (EPA), it can be adapted
for use by state and federal agencies required to establish
administrative records for the selection of CERCLA response
actions. As used in this guidance the term "lead agency" means
either EPA, a state or other federal agency, which is responsible
for compiling and maintaining the administrative record. As used
in this guidance, the term "support agency" means the agency or
agencies which furnish necessary data to the lead agency, reviews
response data and documents and provides other assistance as
requested by the OSC or RPM. This guidance reflects the
revisions to the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) published on March 8, 1990, 55 Fed. Reg.
8859 (see Appendices L and M).
The administrative record established under Section 113(k)
of CERCLA serves two primary purposes. First, the record
contains those documents which form the basis for selection of a
response action and under Section 113(j), judicial review of any
issue concerning the adequacy of any response action is limited
to the record. Second, Section 113(k) requires that the
administrative record act as a vehicle for public participation
42 U.S.C. 19613. References Bade to CERCLA throughout
this memorandum should be interpreted as meaning "CERCLA, as
amended by SARA."
-------
OSWER Directive No. 9833.3A-1
in selecting a response action. This guidance document discusses
procedures developed to ensure that the lead agency's
administrative records meet these twin purposes.
The administrative record is the body of documents that
"forms the basis" for the selection of a particular response at a
site. This does not mean that documents which only support a
response decision are placed in the administrative record.
Documents which are included are relevant documents that were
relied upon in selecting the response action, as well as relevant
documents that were considered but ultimately rejected (e.g.,
documents "considered or relied on").
This document uses the phrase "considered or relied on" in
discussing which documents should be included in the
administrative record to indicate that it is IPA's general policy
to be inclusive for placing documents in the administrative
record. However, this term does not mean that drafts or internal
documents are normally included in the administrative record.
Lead or support agency draft or internal memoranda are generally
not included in the administrative record, except in specific
circumstances (see section III.a. at page 33). Thus, the record
will include final documents generated by the lead and support
agency, as well as technical and site-specific information.
Information or comments submitted by the public or potentially
responsible parties (PRPs) during a public comment period (even
if the lead agency does not agree with the information or
comments) are also included in the administrative record (see
section III.D. at page 30).
The following principles should be applied in establishing
administrative records:
o The record should be compiled as documents relating to the
selection 6f the response action are generated or received
by the lead agency;
o The record should include documents that form the basis for
the decision, whether or not they support the response
selection; and
o The record should be a contemporaneous explanation of the
basis for the selection of a response action.
The effort to establish adequate administrative records
encompasses a vast array of people including: Administrate
Record Coordinators, Remedial Project Managers (RFMs), On-Scene
Coordinators (OSCs), enforcement staff, records management staff,
Regional Counsel staff, Community Relations Coordinators (CRCs),
other federal agencies, states, CERCLA contractors, and the
-------
OSWER Directive No. 9833.3A-1
public.2 This guidance will discuss the roles and
responsibilities of these people and how they interact with one
another.
B. Judicial Review
Section 113(j)(l) of CERCLA provides that judicial review of
any issues concerning the adequacy of any response action shall
be limited to the administrative record.
Judicial review based on an administrative record provides
numerous benefits. Under Section 113(j) of CERCLA and general
principles of administrative law, when the trial court reviews
the response action selected, the court is limited to reviewing
the documents in the administrative record. As a result, facts
or arguments related to the response action that challenging
parties present for the first time in court will not be
considered.
Record review saves time by limiting the scope of trials,
thereby saving the lead agency's resources for cleanup rather
than litigation. Courts will not allow a party challenging a
decision to use discovery, hearings, or additional fact finding
to look beyond the lead agency's administrative record, except in
very limited circumstances. In particular, courts generally will
not permit persons challenging a response decision to depose,
examine, or cross-examine EPA, state or other federal agency
decisionmakers, staff, or contractors concerning the selection of
the response action.
Furthermore, the administrative record may be cited long
after officials responsible for the response decisions have moved
into different positions or have left the lead or support agency.
Judicial review limited to the record saves time involved in
locating former employees who may not remember the facts and
circumstances underlying decisions made at a much earlier time.
Moreover, in ruling on challenges to the response action
decision, the court vill apply the highly deferential "arbitrary
and capricious" standard of review set forth in Section 113(j)(2)
of CERCLA. Under this standard, a court does not substitute its
judgment for that of the decisionmaker. The reviewing court does
not act as an independent decisionmaker, but rather acts as a
reviewing body whose limited task is to check for arbitrary and
capricious action. Thus, the court will only overturn the
response selection decision if it can be shown on the
2 As used hereinafter in this guidance the term "public'
includes potentially responsible parties (PRPs).
-------
OSWER Directive No. 9833.3A-1
administrative record, that the decision was arbitrary and
capricious or otherwise not in accordance with the law. However,
the extent to which EPA benefits from having judicial review
limited to the record depends on the quality and completeness of
each record.
C. Public ticipation
Section 113(k)(2) of CERCLA requires that the public have
the opportunity to participate in developing the administrative
record for response selection. Section 117 of CERCLA also
includes provisions for public participation in the remedial
action selection process. Both sections reflect a statutory
emphasis on public participation. Participation by interested
persons will ensure that the lead agency has considered the
concerns of the public, including PRPs, during the response
selection process. In addition, for purposes of administrative
and judicial review, the record will contain documents that
reflect the participation of the public and the lead agency's
consideration of the public's concerns.
If the lead agency does not provide an opportunity for
involvement of interested parties in the development of the
administrative record, persons challenging a response action may
argue that judicial review should not be limited to the record.
The lead agency must, therefore, make the information considered
or relied on in selecting a response action available to the
public, provide an appropriate opportunity for public comment on
this information, place comments and information received from
the public in the record, and reflect in the record the lead
agency's consideration of this information.
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
Each region should have an Administrative Record
Coordinator. The Record Coordinator generally has the duty of
ensuring that the administrative record files are compiled and
maintained according to Subpart I of the NCP and this guidance.
5 42 U.S.C. 19617.
* The "administrative record file" should be distinguished
from the "administrative record.1* The administrative record file
refers to the documents as they are being compiled. Until a
response action decision has been selected, there is no complete
administrative record for that decision. Thus, to avoid creating
the impression that the record is complete at any time prior to
-------
OSWER Directive No. 9833.3A-1
The Record Coordinator will not be responsible for deciding which
documents are included in a record file. Those decisions should
be made by the OSC or RPM, with appropriate consultation of ORC
staff. The Record Coordinator's duties ordinarily include:
o Developing procedures for creating record files;
o Ensuring that the public is notified that the record files
are available for inspection;
o Ensuring that the records are available at or near the site;
o Ensuring that the records are available at the regional
office or other central location;
o Coordinating efforts to obtain the necessary documents;
o Indexing the record files;
o Updating the record files and indices on a regular basis
(e.g., quarterly);
o Ensuring availability of the record file for copying;
o Ensuring that sampling and testing data, quality control and
quality assurance documentation, and chain of custody forms
are available for public inspection, possibly at a location
other than that of the record files;
o Coordinating with ORC staff on questions of relevance and
confidentiality of documents submitted for the record files;
o Arranging for production and presentation of the record to
court when necessary for judicial review;
o Maintaining the confidential portion of the record files, if
necessary;
o Maintaining the "Compendium of CERCIA Response Selection
Guidance Documents";
o Coordinating with states and federal agencies on record
files compiled by them; and
the final selection decision, the set of documents is referred to
as the administrative record file rather than the administrative
record.
-------
OSWER Directive No. 9833.3A-1
o Notifying appropriate personnel of the timing for review of
state and federal record files.
Appendix D contains a model position description for an
Administrative Record Coordinator.
The Record Coordinator Bust work closely with RPMs, OSCs,
enforcement staff, records management staff, Regional Counsel
staff, community relations staff, and the Department of Justice
(DOJ) (for cases in litigation).
If the way the record was compiled and maintained is
questioned in litigation, the Record Coordinator may be called
upon to prepare an affidavit or testify about those procedures.
Therefore, the Record Coordinator should be familiar with the
procedures associated with the record, and be qualified to
fulfill the responsibilities outlined above.
B. Multiple Response Actions
In general, every decision document (e.g., Record of
Decision (ROD) or Action Memorandum) must be supported by an
administrative record. Under CERCLA, cleanups are often broken
up into distinct response actions. At a given site this may
include several removal actions, and/or remedial actions known as
operable units. For every removal action or operable unit, a
separate administrative record must be compiled.
Information relevant to more than one response decision,
such as a site inspection report or a preliminary assessment
report may be placed in the record file for an initial response
action and incorporated by reference in the indexes of subsequent
record files for that site.
C. Compilation
The administrative record file should be compiled as
relevant documents on the response action are generated or
received. Thus, all documents which are clearly relevant and
non-privileged should be placed in the record file, entered into
the index, and made available to the public as soon as possible.
For example, the remedial investigation/feasibility study (RI/FS)
work plan, summaries of quality assured data, the RI/FS released
for public comment, the proposed plan, and any public comments
received on the RI/FS and proposed plan should be placed in the
record file as soon as they are generated or received.
When there are questions whether particular documents should
be included in the record file, such documents can be segregated
and reviewed at regular intervals (e.g., quarterly). For
-------
OSWER Directive No. 9833.3A-1
example, draft documents or documents subject to claims of
privilege should be set aside for review by ORC and other
appropriate staff. At critical tines, such as prior to the
public comment period, the issues regarding these documents
should be completely resolved and the documents included in the
record file, if appropriate.
The record file should be updated while it is available for
public inspection. The additional documents should be placed in
the record file and entered in the index. Any updates to the
record file should be Bade to all copies of the record file.
All documents considered or relied on in selecting the
response action should be in the record file when a decision
document (e.g., a record of decision) is signed. Documents
relevant to the response selection but generated or received
after the decision document is signed should be placed in a post-
decision document file and may be added to the administrative
record file in certain circumstances (see section III.N. at page
40).
D. Index
Each administrative record file must be indexed. The index
plays a key role in enabling both lead agency staff and members
of the public to help locate and retrieve documents included in
the record file. In addition, the index can be used for public
information purposes or identifying documents located elsewhere,
such as those included in the compendium of guidance documents
(see Appendix E). The index also serves as an overview of the
history of the response action at the site.
The index also provides the lead agency with a degree of
control over documents located at or near the site. The creation
of an index will prevent persons from, altering the record simply
by physically adding or removing documents from the record file.
The index should include the following information for each
document:
o Document Number;
o Document Date - date on the document;
o Document Title * one or two line identification. Identify
the actual document, not a transmittal memo or other less
relevant document. Include sufficient information so the
document cannot be confused with another (••g«» the title
"report" may be insufficient);
-------
OSWER Directive No. 9833.3A-1
o Author - Name and affiliation;
o Recipient - Name and affiliation; and
o Document Location.
The index can be organized either by subject or in
chronological order. If documents are customarily grouped
together, as with sampling data and chain of custody documents,
they may be listed as a group in the index to the administrative
record file. Appendix C contains a model index organized by
subject. Computer databases have been helpful in generating and
updating the index.
The index should be updated when the record file is updated.
It is preferable to update the record file when documents are
received, or at least quarterly. Such updates should coincide
with the periodic updating of the record file and review of
material for which there are questions about relevance or
privilege (see section II.C. at page 6). The index should also
be updated before any public comment period commences. The index
should be labeled "draft index" until all relevant documents are
placed in the record file. When the decision document is signed,
the draft index should be updated and labeled "index."
E. Location
E.I. General
Section 113(k)(l) of CERCLA requires that the administrative
record be available to the public "at or near the facility at
issue." Duplicates of the record file may be kept at any other
location. A copy of the record file must be located at the
regional office or other central location. Both copies of the
record file should be available for public inspection at
reasonable times (e.g., 9-4, Monday-Friday). In the case of an
emergency removal, unless requested, the record file needs to be
available for public inspection only at th» central location (see
section II.F.3. at page 14).*
The record file located at or near the site should be placed
in one of the information repositories which may already exist
for community relations purposes. These are typically located in
a library, town hall, or other publicly accessible place. If
there is no existing information repository, or if the repository
5 See 40 C.F.R. §300.805.
6 40 C.F.R. §§300.805(a)(5) and (b).
8
-------
OSWER Directive No. 9833.3A-1
does not have sufficient space for the record file, any other
publicly accessible place nay be chosen to house the record
file. When a Superfund site is located at or near an Indian
reservation, the centrally located copy of the record file may be
located at the Indian tribal headquarters. The Comnunity
Relations Coordinator (CRC) should be consulted on the location
of the information repository and record file.
The record file should be transmitted to the local
repository in coordination with the CRC. The CRC should make the
initial contact to establish the local repository and request
housing for the record file. The Record Coordinator should make
arrangements for delivering the record file to the local
repository*
The record file should include an introductory cover letter
addressed to the librarian or repository manager (see Appendix
F). In addition, a transmittal acknowledgement form should be
included to ensure receipt of the record file (see Appendix G).
Finally, an administrative record fact sheet should accompany the
record to answer questions from the public (see Appendix H).
Updates to the record file should be handled in a similar fashion
(see section II.C. at page 6).
In addition to the publicly available record file, if
feasible, a master copy of the record file should be kept at the
regional office or other central location of the lead agency. To
preserve the integrity of the master copy of the record file, it
should not be accessible to the public. If not feasible to
establish a master copy, the lead agency will need to establish
an effective security system for the publicly available record
file. The master copy of the record file may be maintained in
microform to conserve storage space (see section II.J. at page
21).
E.2. Special Documents
Certain documents which are included in the record file do
not have to be maintained at or near the site or, in some cases,
at the regional office or other central location, because of the
nature of the documents and the burden associated with
maintaining such documents in multiple locations. These
documents, however, must be incorporated in the record file by
reference (e.g., in the index but not physically in the record
7 If the site is located at a federal facility which
requires security clearance, the administrative record file for
that site must be located where security clearance is not
required. The public must have free access to the record file.
-------
OSWER Directive No. 9833.3A-1
file), and the index must indicate where the documents are
publicly accessible. Where a document is listed in the index but
not located at or near the site, the lead agency Bust, upon
request, include the document in the record file at or near the
site. This applies to verified sampling data, chain of custody
forms, and guidance and policy documents. It does not apply to
documents in the confidential file.
Unless requested, the following types of documents do not
have to be located in multiple locations:
Verified Sampling Data9
Verified sampling data do not have to be located in either
administrative record file. The sampling data may be left in its
original storage location (e.g., Environmental Services Division
(ESD) or contract laboratory). Data summary sheets, however,
must be located in the record file. The index must list the data
summary sheets, reference the underlying verified sampling data,
and indicate where the sampling data can be found.
Chain of Custody Forms10
As with verified sampling data, chain of custody forms do
not have to be located in either administrative record file. The
chain of custody forms may be left in the original storage
location. The index must reference the chain of custody forms
and indicate their location.
8 40 C.F.R. |300.805(b).
9 40 C.F.R. |300.805(a)(1). "Verified sampling data" are data
that have undergone the quality assurance and quality control
process. "Invalidated sampling data" have been incorrectly
gathered or analyzed and will not be part of the record file.
"Unvalidated sampling data" are data which has not yet undergone
the quality assurance and quality control process. Because it is
superseded by verified data, the unvalidated data are not generally
part of the record files. However, such data may in some cases be
relied on in selecting a response action, such as an emergency
removal where there is no time for verification. Unvalidated
sampling data which are relied on in selecting a response action
should be included in the record file.
10 40 C.F.R. i300.805(a) (1) .
10
-------
OSWER Directive -No. 9833.3A-1
Confidential and Privileged Documents11
When a confidential or privileged document is included in
the record file, it should be kept in a confidential portion of
the record file. The confidential file should be kept in a
locked cabinet at the regional office or other central location.
It should not be located at or near the cite. The index should
identify the title and location of the document, and describe why
the lead agency considers it confidential or privileged.
Furthermore, the lead agency should summarize or redact the
document to make available, to the extent feasible, factual
information (especially if such information is not found
elsewhere in the record file and is not otherwise available to
the public). This summary or redaction should be performed as
soon as possible after the determination that a document is
privileged or confidential, and inserted in the portion of the
record file available to the public and included in the index.
See also section III.H. at page 34.
Guidance and Policy Documents12
Guidance and policy documents that are not site specific are
available in a compendium located in the regional office.
("Compendium of CERCLA Response Selection Guidance Documents,"
Office of Waste Programs Enforcement, May 1989.) This eliminates
the need for reproducing copies of frequently used documents for
each site record file. The documents in the compendium need not
be physically included in the record file, but the guidance and
policy documents considered or relied on in selecting the
response action must be listed in the record file index along
with their location and availability. See also section III.I. at
page 37 and Appendix E.
Technical Literature13
Publicly available technical literature that was not
generated for the site at issue (e.g., an engineering textbook),
does not have to be located in the regional office or other
central location or at or near the site. The document must be
clearly referenced in the index. However, technical literature
not publicly available must be physically included in the record
file at the regional office or other central location and at or
near the site. See also section XII.J. at page 38.
11 40 C.F.R. |300.805(a) (4) .
12 40 C.F.R. |300.805(a) (2) .
13 40 C.F.R. |300.805(a) (3) .
11
-------
OSWER Directive No. 9833.3A-1
F. Public Availability
F.I. General
Section 113(k) of CERCIA specifies that the administrative
record "shall be available to the public." In satisfying this
provision, the lead agency Bust comply with all relevant public
participation procedures outlined in Sections 113(k) and 117 of
CERCIA. The NCP (see Appendices L and M) contains additional
requirements on public availability (see also "Community
Relations in Superfund: A Handbook," October 1988 - OSWER
Directive No. 9230.0-3A; "Community Relations During Enforcement
Activities," November 3, 1988 - OSWER Directive No. 9836.0-1A).
The availability of the record file will vary depending upon
the nature of the response action. Different procedures are
outlined below for remedial and removal response actions.
In all cases, the lead agency should publish a notice of
availability of the record file when the record file is first
made available for public inspection in the vicinity of the site
at issue. The notice should explain the purpose of the record
file, its location and availability, and how the public may
participate in its development.
The notice should be published in a major local newspaper of
general circulation. The newspaper notices should be distributed
to persons on the community relations mailing list. These
notices should also be sent to all known PRPs if they are not
already included on the community relations mailing list. As
PRPs are discovered, the lead agency should add their names to
the community relations mailing list and mail them all the
notices sent to the other PRPs. Publication of the notice should
be coordinated with the community relations staff. A copy of the
notice of availability and list of recipients should be included
in the record file. Appendix I contains a model notice of
availability.
This public notice may be combined with other notices for
the same site, such as a notice of availability of the community
relations information repository, if they occur at the same time.
In addition to the required newspaper notice, the public can be
informed of the availability of the record file through existing
mechanisms (e.g., general and special notice letters/ Section
104(e) information requests, and the community relations mailing
list). In addition, Headquarters will publish notices in the
14 See 40 C.F.R. |300.815(a) and ||300.820(a)(1) and (b)
12
-------
OSWER Directive No. 9833.3A-1
Federal Register. They will be published quarterly and will list
sites where remedial activity is planned.
F.2. Remedial Actions
The administrative record file for a remedial action must be
available for public inspection when the remedial investigation
begins. For example, when the remedial investigation/
feasibility study (RI/FS) work plan is approved, the lead agency
must place documents relevant to the selection of the remedy
generated up to that point in the record file. Documents
generally available at that time include the preliminary
assessment (PA), the site investigation (SI), the RI work plan,
inspection reports, sampling data, and the community relations
plan. The lead agency must continue to add documents to the
record file periodically after they are generated or received
during the RI/FS process.
The record file must be publicly available both at a
regional office or other central location and at or near the site
(see section II.E. at page 8). In addition, the notice of
availability should be sent to persons on the community relations
mailing list, including all Known PRPs.
with the completion of the RI/FS, the lead agency should
undertake the following public participation procedures:
o Prepare a proposed plan which briefly analyzes the remedial
alternatives evaluated in the detailed analysis of the RI/FS
and proposes a preferred remedial action alternative;
o Make the RI/FS report and proposed plan available in the
record files both at a regional office or other central
location and at or near the site;
o Publish in a major local newspaper of general circulation a
notice of availability and brief analysis of the RI/FS
report and proposed plan. The notice should include the
dates for submission of public comments;
o Mail the notice or copy of the notice to all PRPs on the
community relations mailing list;
o Provide a formal comment period of not less than 30 calendar
days for submission of comments on the proposed plan. Upon
15 40 C.F.R. |300.815(a) .
16 40 C.F.R. |300.805(a) .
13
-------
OSWER Directive No. 9833.3A-1
timely request the lead agency will extend the public
comment period by a minimum of 30 additional days. [Note:
The lead agercy i» encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides
practical benefits both substantively and procedurally.
Early comments may provide important information for the
selection decision, and early consideration provides the
public (and, particularly, PRPs) with additional informal
opportunities for participating in the decisionmafcing
process.];
o Provide the opportunity for a public meeting(s) in the
affected area during the public comment period on the RI/FS
and proposed plan;
o Keep a transcript of the public meeting(s) on the RI/FS and
proposed plan held during the comment period and include a
copy of the transcript in the record file;
o Prepare a discussion (to accompany or be part of the
decision document) of any significant changes to the
proposed plan which occurred after the proposed plan was
made available for public comment which are reflected in the
ROD;
o Prepare a response to each of the significant comments
submitted during the public comment period to accompany the
ROD (see section III.D. at page 30); and
o Publish in a major local newspaper of general circulation a
notice of the availability of the ROD and make the ROD
available to the public before beginning any remedial
action, as required under Section 117(b) of CERCLA.
Comments received after signing the ROD should be placed in
a post-decision document file and may be added to the record file
in certain situations (see section XIX.N. mt page 40).
F.3. Removal Actions
Section 113(fc)(2)(A) of CERCIA requires that the EPA
establish procedures for the appropriate participation of
interested persons in the development of the administrative
record for the selection of a removal action. "Appropriate"
participation depends on the nature of the removal, as outlined
below.
17
40 C.F.R. |300.430(f)(3)(i)(C).
14
-------
OSWER Directive No. 9833.3A-1
Tine-critical Removal Actions
A time-critical removal action is a removal action for
which, based on the site evaluation, the lead agency determines
that a period of less than six months exists before on-site
removal activities must be initiated. This category includes
emergency removal actions which are described in greater detail
below.
The administrative record file for these actions must be
available for public inspection no later than 60 days after the
initiation of on-site removal activity. Where possible, the
record file should be made available earlier. The record file
must be available both at the regional office or other central
location and at or near the site at issue.
If, however, on-site cleanup activity is initiated within
hours of the verification of a release or threat of a release and
on-site cleanup activities cease within 30 days (emergency
actions), the record file need only be available at the regional
office or other central location, unless it is requested that a
copy of the record file be placed at or near the site.
For all time-critical removals, a notice of the availability
of the record file must be published in a major local newspaper
and a copy of the notice included in the record file. This
notice should be published no later than 60 days after initiation
of on-site removal activity.
A public comment period of not less than 30 days should be
held in appropriate situations. In general, a public comment
period will be considered appropriate if cleanup activity has not
been completed at the time the record file is Bade available to
the public and if public comments might have an impact on future
action at the site. If a public comment period is considered
appropriate, it should begin at the time the record file is made
available for public inspection. Note, however, that even if an
action is completed before the record file is available, the
record file should be made available to the public. The notice
for the public comment period may be combined with the notice of
availability of the record file if they occur at the same time.
The notice should be mailed to all PRPs on the community
18
40 C.F.R. |300.805(b).
19 40 C.F.R. §300.415(m) (2) (i).
20
40 C.F.R. i300.415(m)(2)(ii).
15
-------
OSWER Directive No. 9833.3A-1
relations nailing list. The notice should also be sent to all
known PRPs if they are not already on the community relation*
nailing list.
The lead agency Bust respond to all significant comments
received during the public comment period and place the comments
and the responses to them in the record file (see section III.D.
at page 30). Whether or not the lead agency holds a public
comment period, comments received by the lead agency before the
decision document is signed and related to the selection of the
removal action must be placed in the record file. For
information, including comments, generated or received after the
decision document is signed, see section III.N. at page 40.
Non-Time-Critical Removal Actions
A non-time-critical removal action is a removal action for
which, based on the site evaluation, the lead agency determines
that a planning period of at least six months exists before on-
site removal activities must be initiated.
The administrative record file for a non-time-critical
removal action must be made available for public inspection vhen
the engineering evaluation/cost analysis (EE/CA) is made
available for public comment. The record file must b*
available at the regional office or other central location and at
or near the site. A notice of the availability of the record
file must be published in a major local newspaper and a copy of
the notice included in the record file. The notice should be
published in a major local newspaper of general circulation. In
addition, Headquarters will publish these notices in the Federal
Register. They will be published quarterly and will list sites
where non-time critical removal activity is planned. The
newspaper notice should be distributed to persons on the
community relations mailing list and placed in the record file.
These notices should also be sent to all known PRPs if they are
not already on the community relations mailing list. As PRPs are
discovered, the lead agency should add their names to the
community relations mailing list and mail them all the notices
sent to the other PRPs. Publication of the notice should be
coordinated with the community relations staff. A copy of the
notice of availability should be included in the record file.
Appendix I contains a model notice of availability.
40 C.F.R. |300.415(m)(2)(iii).
22 40 C.F.R. |300.415(m) (4) .
16
-------
OSWER Directive No. 9833.3A-1
A public comment period on the EE/CA of not less than 30
days oust be held so that interested persons Bay submit comments
on the response selection for the record file. Upon timely
notice, the lead agency will extend the public comment period by
a minimum of 15 days. A notice of the public comment period
may be combined with the notice of availability of the record
file if they occur at the same time. The lead agency must
respond to all significant comments received during the public
comment period and place the comments and the responses to them
in the record file (see section III.D. at page 30).
The lead agency is encouraged to consider and respond to
significant comments that were submitted before the public
comment period. Considering early comments provides practical
benefits both substantively and procedurally. Early comments may
provide important information for the selection decision, and
early consideration provides the public (and, particularly, PRPs)
with additional informal opportunities for participating in the
decision making process.
Comments generated or received after the decision document
is signed should be kept in a post-decision document file. They
may be added to the record file in certain situations (see
section III.N. at page 40).
G. Maintaining the Record
Document room procedures should be established to ensure
orderly public access to the record files. In establishing
public access procedures, the security and integrity of the
record files must be maintained at all times.
Each regional office or other central location should have a
reading area where visitors are able to review the record files.
The record file must be available during reasonable hours (e.g.,
9-4, Monday-Friday). The public reading area should include,
wherever feasible:
o Administrative record files;
o Guidance Compendium (see section III.I. at page 37);
o Access to a copier; and
o Sign-in book.
23 40 C.F.R. |300.415(m) (4) (iii) .
24 40 C.F.R. |300.415(m) (4) (iv).
17
-------
OSWER Directive No. 9833.3A-1
Controlled access to the files is accomplished by use of a
visitor sign-in book. Sign-in books help minimize instances in
which documents are lost or damaged. They also provide
documentation of the lead agency's efforts to provide public
access to the record files. Pertinent information recorded in
the book should include:
o Date of visit;
o Name;
o Affiliation;
o Address;
o Phone number;
o Site documents viewed; and
o Cost of copied materials (if applicable).
The lead agency may choose not to use sign-in books if the
books deter the public from reviewing the record files.
Since documents in the record file should be complete,
properly organized and legible, the integrity of the record file
must be maintained. If possible, storage and reading areas
should be supervised to maintain proper security. Documents
should not leave the document room or be left unattended. To the
extent feasible, the Administrative Record Coordinator should
check the order of the documents after being viewed by the public
to be certain all documents have been returned intact. The
documents in the record file should be kept secure, either in a
locked room or in locked cabinets.
The record file located at or near the site should be
handled with similar care. If possible, the record file should
be treated as a non-circulating reference; it should not leave
the local repository except under supervision. The phone number
of a record file contact should be provided to record file users
and to the manager of the local repository «o that problems can
be identified and resolved. This information can be included in
an informational fact sheet accompanying the record file (see
Appendix H). In addition, the Record Coordinator should plan
periodic reviews of the local record files.
Where the site is a fund-lead or PRP-lead, EPA should retain
(in addition to the publicly available record file) a master copy
of the record file at the regional office or other central
18
-------
OSWER Directive No. 9833.3A-1
location/ if feasible. Where a state or other federal agency is
the lead agency at a site, EPA should assure that the state or
other federal agency maintains (in addition to the publicly
available record file) a master copy of the record file. The
record files are permanent records that must be retained.
As to the local repository, the statute and regulations are
silent concerning the duration of public availability of the
record file. The lead agency's primary concern is public
participation in development of the administrative record.
Following initiation of the response action, public interest in
background information other than the Record of Decision or RI/FS
may vane. In any event, the statutory provisions for judicial
review and deadlines for filing cost recovery actions provide
useful references for keeping the record file publicly available.
See Sections 113(g) and (h) of CERCLA.
Where there is ongoing (or possible) litigation, the record
file in the regional or other central location should be
available at least until the litigation is over.
The record file continues to serve as a historical record of
the response selection, even after the statute of limitations for
cost recovery action has passed. Where there is considerable
public interest, the local repository may wish to keep the record
file available for public viewing.
H. Confidential File
In certain situations, documents in the record file may be
subject to an applicable privilege (see section III.H. at page
34). To the extent feasible, information relevant to the
response selection which is contained in a privileged document
should be summarized or redacted as to make the document
disclosable and then included in the publicly accessible portion
of the record file. The privileged document should be included
in a confidential portion of the record file.25
The Administrative Record Coordinator should maintain a
confidential portion of the record file for privileged documents.
These documents should be listed in the index to the entire
record file and identified as "privileged." The index should
identify the title and location of the privileged document, and
describe the basis for the asserted privilege.
The confidential portion of the record file should be stored
in locked files at the regional office or other central location
25 See 40 C.F.R. |300.810(d).
19
-------
OSWER Directive No. 9833.3A-1
and should not be located at or near the site. The confidential
portion of the record file should i;e separate from the publicly
available record file to protect against inadvertent disclosure.
Each privileged document should be stamped "confidential11 at the
bottom of each page of the document. Where the material is not a
written document (such as a computer disk or cassette tape) the
jacket should be stamped "confidential." A complete list of all
materials contained in the confidential portion of the record
file should be maintained by the Record Coordinator. The Record
Coordinator should also maintain a log which will include the
time, date, document name, and will identify persons checking out
and returning materials to the confidential file.
As soon as a new record file is established, a routine
access list for the confidential file should be prepared for each
record file. When EPA is the lead agency, this routine access
list must be approved by the Waste Management Division Director
or the Environmental Services Division Director, and ORC. Once
approval is given, persons on the list will be able to access the
confidential files through the Record Coordinator. No one should
have access to the confidential files other than those identified
on the routine access list. For state or other federal agency-
lead sites, the Regions should take steps to insure that state or
other federal agencies develop routine confidential file access
list procedures.
This policy and procedure for privileged materials does not
supersede any policy and procedures established under the Freedom
of Information Act (FOIA), 5 U.S.C. |552, and EPA regulations
implementing FOIA at 40 C.F.R. Part 2. Upon receipt of requests
for the administrative record file pursuant to FOIA, if the
requester is in close proximity to the record file, the lead
agency may respond to FOIA requests by telling a requester the
location and availability of the record file. Decisions
regarding disclosures of materials under FOIA should be
coordinated among the various lead agency officials with access
to such materials.
I. Copying
Section 117(d) of CERCLA requires that each document
developed, received, published, or made available to the public
under Section 117 be made available for public inspection and
copying at or near the site. Under Section 113(k)(2)(B) of
CERCLA, these documents must also be included in the
administrative record file. Under these provisions of CERCLA,
the lead agency must ensure that documents in the record file are
available for copying, but does not bear responsibility for
copying the documents themselves. Therefor*, it is preferable
20
-------
OSWER Directive No. 9833.3A-1
that the record file should be located in a facility which
contains a copying machine (e.g., a public library).
When the administrative record file is available at a
facility at or near the site and copying facilities are available
there, the lead agency may encourage the requester to make use of
the copying facilities at that location. If copying of the
record file located at or near the site is difficult for a
requesting party, the lead agency may arrange for copying on
behalf of a requester at the regional or other central location.
The lead agency may ask that requesters arrange for copying by
contractors or commercial copy centers who then bj.ll the
requester directly.
The lead agency should follow the FOIA regulations at 40
C.F.R. Part 2, in determining the appropriate charge for copying.
Copying fees should be waived for other federal agencies, EPA
contractors or grantees, and members of Congress. The EPA
currently charges $.20 a page for paper copies as provided in 40
C.F.R. Part 2. Reproduction of photographs, microfilms or
magnetic tapes, and computer printouts should be charged at the
actual cost to the lead agency.
J. Micrographics
The lead agency may make the administrative record file
available to the public in microform. Use of micrographics can
significantly reduce the space required to store administrative
record files. In addition, micrographics can simplify the tasks
of reproducing copies of the record file and transmission of the
record files to the local repositories. Any use of micrographics
should be conducted in an orderly manner consistent with records
management procedures. If using micrographics to maintain the
record files, the lead agency must provide a micrographic reader
at the regional office or other central location to ensure public
access to the record file. If a record file is located at or
near the site and micrographics are used, the lead agency must
ensure that a micrographic reader at that location is available.
Microform copies of original documents are admissable in
court if created in an organized fashion. The Business Records
as Evidence Act (28 U.S.C. §1732) specifies that copies of
records, which are made "in the regular course of business" and
copied by any process which accurately reproduces the original,
are "as admissible in evidence as the original itself." See also
Federal Rules of Evidence 1003. Since the NCP provides for use
of microform, microform copies of administrative record documents
26 See 40 C.F.R. |300.805(C).
21
-------
OSWER Directive No. 9833.3A-1
that are produced in the regular course of business are likely to
be admissible in couru.
The Office of Information Resources Management (OIRM) has
granted approval for the use of micrographics in establishing
administrative records (see Appendix J). Any use of
micrographics should still comply with the remaining provisions
of Chapter 6 of the EPA Records Management Manual (7/13/84).
K. Certification
A certification as to the completeness of the administrative
record must be performed when the record is filed in court.
Appendix K contains a model court certification.
When EPA is the lead agency such certification should be
signed by the Regional Administrator's designee, after
consultation with ORC. Any certification of the record should be
made by program staff and not legal staff. The region may also
choose to have the Administrative Record Coordinator certify that
the record was compiled and maintained in accordance with
applicable agency regulations and guidance. Such certification
would attest that the record was compiled in accordance with
current agency procedures and would not address the completeness
of the record file.
If a state or other federal agency is the lead agency that
agency must certify that the record was compiled and maintained
in accordance with applicable EPA regulations and guidance.
After the state or federal agency provides this certification,
the Regional Administrator's designee should certify as to the
completeness of the record, as provided in Appendix K.
III. CONTENTS OP THE ADMINISTRATIVE RECORD
A. Remedial Actions
The administrative record for selection of a remedial action
should consist of:
o documents which were considered or relied on to select the
remedial action; and
o documents which demonstrate the public's opportunity to
participate in and comment on the selection of the remedial
action.27
27 See 40 C.F.R. H300.810 and 300.815.
22
-------
OSWER Directive No. 9833.3A-1
Below is a list of documents that are usually generated vhen
a remedial response action is selected. These documents should
be included in the administrative record file if they are
generated and considered or relied on in selecting the remedial
response action. Documents that demonstrate the public's
opportunity to participate in and comment on selecting the
remedial response action should also be included in the record
file. Documents not listed below, but meeting the above
criteria, should be included.
Factual Information/Data
o Preliminary Assessment (PA) report;
o Site Investigation (SI) report;
o Remedial Investigation/Feasibility Study (RI/FS) work plan;
o Amendments to the final work plan;
o Sampling and Analysis Plan (SAP): consisting of a quality
assurance project plan (QAPP) and a field sampling plan;
o Sampling data: verified data during the RI/FS, or any data
collected for previous actions such as RCRA or removal
actions which are considered or relied on in selecting the
remedial action. Unvalidated data should be included only
if relied on in the absence of validated data (see note 9 at
page 10);
o Chain of custody forms;
o Inspection reports;
o Data summary sheets;
o Technical studies performed for the site (e.g., a ground-
water study);
o Risk evaluation/endangerment assessment and underlying
documentation (see section III.C. at page 29);
o Fact sheet or summary information regarding remedial action
alternatives generated if special notice letters are issued
to PRPs at an early stage of the RI/FS (see "Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange," October 19, 1987 - OSWER Directive No. 9834.1);
o RI/FS (as available for public comment and as final, if
different); and
23
-------
OSWZR Directive No. 9833.3A-1
o Data submitted by the public, including PRPs.
Policy and Guidance
o Memoranda on site-specific or issue-specific policy
decisions. Examples include memoranda on off-site disposal
availability, special coordination needs (e.g., dioxin),
applicable or relevant and appropriate requirements (ARARs)
(to the extent not in the RI/FS), cost effectiveness and
utilization of permanent solutions and alternative treatment
technologies;
o Guidance documents (see section III.I. at page 37); and
o Technical literature (see section III.J. at page 38).
Public Participation (Include the documents that show the public
was notified of site activity and had an opportunity to
participate in and comment on the selection of response action)
o Community relations plan;
o Newspaper articles showing general community awareness;
o Proposed plan;
o Documents sent to persons on the community relations mailing
list and associated date when such document was sent;
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings and notices of
opportunities to comment;
o The community relations mailing list (including all known
PRPs) ;**
o Documentation of informal public meetings: information
generated or received during meetings with the public and
Individual names and addresses of members of the general
public which are on the community relations mailing list should
not be included in the public record file. Disclosure of such
information may result in a Privacy Act violation (see also section
III.H. at page 34) or inhibit the general public from requesting
information about the site. The lead agency should then place
individual names and addresses in the confidential portion of the
record file.
24
-------
OSWER Directive No. 9833.3A-1
memoranda or notes summarizing significant information
submitted during such meetings;
o Public comments: complete text of all written comments
submitted (see also section III.D. at page 30);
o Transcripts of formal public meetings: including meetings
held during the public comment period on the RI/FS, proposed
plan, and any waiver of ARARs under Section 121(d)(4) of
CERCLA;
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a remedial action; and
o Responses to comments from the state and other federal
agencies.
Enforcement Documents (Include if the document contains
information that was considered or relied on in selecting the
response selection or shows that the public had an opportunity to
participate in and comment on the selection of response action.
Do not include enforcement documents solely pertaining to
liability)
o Administrative orders;
o Consent decrees;
o Affidavits containing relevant factual information not
contained elsewhere in the record file;
o Notice letters to PRPs;
o Responses to notice letters;
o Section 104(e) information request letters and Section
122(e) subpoenas; and
o Responses to Section 104(e) information request letters and
Section 122(e) subpoenas.
Other Information
o Index (see section II.D. at page 7);
o Documentation of state involvement: documentation of the
request and response on ARARs, Section 12-1 (f) (1) (G) notices
and responses, a statement of the state's position on the
proposed plan (concurrence, nonconcurrence, or no comment at
25
-------
OSWER Directive No. 9833.3A-1
the tine of publication), opportunity to concur in the
selected remedy and be a party to a settlement (see section
IV.A. at page 42);
o health assessments, health studies, and public health
advisories issued by the Agency for Toxic Substances and
Disease Registry (ATSDR)(see section IV.c. at page 45); and
o Natural Resource Trustee notices and responses, findings of
fact, final reports and natural resource damage assessments
(see section IV.D. at page 45)
Decision Documents
o Record of decision (ROD): remedial action decision document
(including responsiveness summary);
o Explanations of significant differences (under Section
117(c)) and underlying information; and
o Amended ROD and underlying information.
The administrative record serves as an overview of the
history of the site and should be understandable to the reader.
Appendix B provides a model file structure for organizing the
record file. Appendix C contains a model index.
B. Removal Actions
The administrative record for selection of a removal action
should consist of:
o documents which were considered or relied on to select the
removal action; and
o documents which demonstrate the public's opportunity to
participate in and comment on the selection of the removal
action, when appropriate.
Belov is a list of documents that are usually generated when
a removal response action is selected. These documents should be
included in the administrative record file if they are generated
and considered or relied on when selecting the removal action.
Documents that demonstrate the public's opportunity to
participate in and comment on the removal response action should
also be included in the record file. Documents not listed below,
but meeting the above criteria, should be included.
29 See 40 C.F.R. ||300.810 and 300.820,
26
-------
OSWER Directive No. 9833.3A-1
Factual Information/Data
o Preliminary assessment (PA) report;
o Site evaluation (SI) report;
o EE/CA (for a non-time-critical removal action);
o Sampling plan;
o Sampling data: verified data obtained for the removal
action, or any data collected for previous actions such as
RCRA or other response actions which are considered or
relied on in selecting the removal action. Unvalidated data
should be included only if relied on in the absence of
validated data (see note 9 at page 10);
o Chain of custody forms;
o Inspection reports;
o Technical studies performed for the site (e.g., a ground
water study);
o Risk evaluation/endangerment assessment and underlying
documentation; and
o Data submitted by the public, including PRPs.
Policy and Guidance
o Memoranda on site-specific or issue-specific policy
decisions. Examples include memoranda on off-site disposal
availability, compliance with other environmental statutes,
special coordination needs (e.g., dioxin);
o Guidance documents (see section III.I. at page 37); and
o Technical literature (see section III.J. at page 38).
Public Participation (Include the documents that show the public
was notified of site activity and had an opportunity to
participate in the response selection.)
o Community relations plan;
o Newspaper articles showing general community awareness;
o Documents sent to persons on the community relations mailing
list and associated date when such documents was sent;
27
-------
OSWER Directive No. 9833.3A-1
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of Meetings, and notices of
opportunities to comment;
o The community relations nailing list (including all known
PRPs) ;M
o Documentation of public meetings: information generated or
submitted during meetings with the public (including PRPs)
and memoranda or notes summarizing significant information
submitted during such meetings;
o Public comments: complete text of all written comments
submitted (see section III.D. at page 30) ;
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a removal action; and
o Responses to comments from states and other federal
agencies.
Enforcement Documents (Include if the document contains
information that was considered or relied on in selecting the
response selection or shows that the public had an opportunity to
participate in and comment on the selection of response action.
Do not include enforcement documents solely pertaining to
liability)
o Administrative orders;
o Consent decrees;
o Affidavits containing relevant factual information not
contained elsewhere in the record file;
o Notice letters to PRPs;
30 Individual names and addresses of •embers of the general
public which are on the community relations mailing list should
not be included in the public record file. Disclosure of such
information may result in a Privacy Act violation (see also section
III.H. at page 34) or inhibit the general public from requesting
information about the site. The lead agency should then place
individual names and addresses in the confidential portion of the
record file.
28
-------
OSWER Directive No. 9833.3A-1
o Responses to notice letters;
o Section 104(e) information request letters and Section
122(e) subpoenas; and
o Responses to Section 104(e) information request letters and
Section 122(e) subpoenas.
Other Information
o Index (see section II.D. at page 7);
o Documentation of state involvement (see section IV.A. at
page 42) ;
o ATSDR health assessments, health studies, and public health
advisories (see section IV.C. at page 45); and
o Natural Resource Trustee notices and responses, findings of
fact, final reports and natural resource damage assessments
(see IV.D. at page 45).
Decision Documents
o EE/CA Approval Memorandum;
o Action Memorandum;
o Amended Action Memorandum; and
o Other documents which embody the decision for selection of a
removal action.
The administrative record serves as an overview of the
history of the site and should be understandable to the reader.
Appendix B provides a Model file structure for organizing the
record file. Appendix C contains a model index.
C. Imminent and Substantial Endangerment
Under Section 106 of CERCLA, the EPA may find the existence
of an imminent and substantial endangerment to the public health
or welfare or the environment because of an actual or threatened
release of a hazardous substance.
Determining the existence of an imminent and substantial
endangerment is an important component in selecting the response
action. Therefore, all documents considered or relied on in
making that determination, including any risk assessment, and its
supporting documentation, must be included in the administrative
29
-------
OSWER Directive No. 9833.3A-1
record file.31 If there is proper documentation of the
determination of an imminent and substantial endangerment in the
record file, judicial review of that determination in an action
under Section 106 of CERCLA should be limited to the
administrative record.
D. Public Comments
The administrative record file should document the public's
opportunity to be involved in selecting a response action. This
can be accomplished by including in the record file all documents
related to the opportunity to participate (e.g., notices and fact
sheets), and relevant written comments and information submitted
by the public (e.g., reports and data)
Public requests for information (e.g., Freedom of
Information Act (FOIA) requests for copies of reports), need not
be included in the record file.
The lead agency should request that substantive oral
comments (either in person or over the phone) be put in writing
by the commenter and submitted to the record file. The commenter
should be advised that the obligation to reduce the comment to
writing rests with the commenter. The lead agency, however, may
reduce it to writing where the lead agency will want to rely on
the comment.
The lead agency may respond to comments received prior to a
public comment period in various ways, depending on the nature
and relevance of a particular comment. The lead agency's
consideration of such a comment may be in the form of a written
response, or reflected by documented actions taken after
receiving the comment, or even by changes in subsequent versions
of documents. Zf the lead agency prepares a written response to
a comment, the comment and response should be included in the
record file.
The lead agency may notify commenters that comments
submitted prior to a formal public comment period must be
resubmitted or specifically identified during the public comment
period in order to receive formal response by the lead agency.
Alternatively, the lead agency may notify a commenter that the
lead agency will respond to the comment in a responsiveness
summary prepared at a later date. The lead agency, however, has
31 See "Guidance on Preparing Superfund Decision Documents:
The Proposed Plan, The Record of Decision, Explanation of
Significant Differences, ROD Amendment," OSWER Directive No.
9355.3-02, June 1989.
30
-------
OSWER Directive No. 9833.3A-1
no duty to respond to any comments received before the formal
public comment period, or to respond to comments during the
public comment period until the close of the public comment
period.
The lead agency, however, is encouraged to consider, respond
to and include in the record file significant comments that were
submitted before the public comment period. Considering early
comments provides practical benefits both substantively and
procedurally. Early comments Bay provide important information
for the selection decision, and early consideration provides the
public (and, particularly, PRP's) with additional informal
opportunities for participating in the decision Baking process.
All comments received by the lead agency during the formal
public comment period are to be included in the record file in
their original form, or if not feasible, an explanation should be
placed in the record file explaining why such comments were not
included. Comments received during the formal public comment
period must be addressed in the responsiveness summary (included
with the ROD in remedial response actions). The responses may be
combined by subject or other category in the record file.
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.* Such
comments should be handled as post-decision information (see
section III.N. at page 40).
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 in limited circumstances (see section
III.N. at page 40).
E. Enforcement Actions
The same procedures should be used for .establishing an
administrative record whether or not a response action is
selected in the context of an enforcement action. The following
additional information, however, Bay assist the lead agency where
there is enforcement activity.
E.I. Negotiation Documents
During negotiations with the lead agency, a potentially
responsible party (PRP) Bay produce documents and claim that they
See 40 C.F.R. ||300.815(b), 300.825(a)(2) and (b)(2)
31
-------
OSWER Directive No. 9833.3A-1
constitute confidential business information (CBI) or offers of
settlement subject to Rule 408 of the Federal Rules of Evidence.
Generally, those documents are not part of the
administrative record for response selection unless they are
submitted by PRPs for consideration in selecting a response
action and are considered or relied on in selecting the response
action. A privileged document which was considered or relied on
in selecting the response action should be placed in the
confidential portion of the record file. Such a document should
be summarized and the summary included in the publicly accessible
portion of the record file (see section ZZ.H. at page 19). If
the information cannot be summarized in a disclosable Banner, the
information should be placed in the confidential portion of the
record file only and listed in the index to the file.
E.2. PRP-Lead RI/FS
Where a PRP is conducting the RI/FS, the PRP must submit all
technical information on selection of the remedial action
generated during the RI/FS to the lead agency. Technical
information includes work plans, campling data, reports, and
memoranda. The lead agency, and not the PRP, will establish and
maintain the administrative record file (see "Interim Guidance on
Potentially Responsible Party Participation in Remedial
Investigations and Feasibility Studies," May 16, 1988, OSWER
Directive No. 9835.la and "Model Administrative Order on Consent
for Remedial Investigation and Feasibility Study," January 30,
1990, OSWER Directive No. 9835.10.)
PRPs may be delegated responsibility for some record file
maintenance activities, such as housing the files at or near the
site. PRPs cannot, however, be responsible for decisions on what
documents comprise the record file, because of, among other
things, the potential for a conflict of interest.
E.3. Administrative Orders and Consent Decrees
Final administrative orders and consent decrees issued prior
to selection of the response action (e.g., ordering a PRP to
conduct the RI/FS), should be included in the administrative
record file. Administrative orders or consent decrees issued
after the signing of the ROD or the action memorandum should not
be included in the record file, unless the consent decree or
administrative order meets the criteria for the inclusion of
post-decision documents in the record file (see section XII.N. at
page 40). Drafts of administrative orders and consent decrees
should not be included in the record file, unless the drafts
contain factual information that was considered or relied on and
is not found elsewhere in the record file.
32
-------
OSWER Directive No. 9833.3A-1
The issues relating to administrative records for
administrative orders and de minimis settlements are not
addressed by this guidance.
F. Excluded Documents
Certain documents should not be included in the
administrative record file because they are irrelevant to the
selection of the response action. Documents should be excluded
from the record file if they were not considered or relied on in
selecting the response action.
Material beyond the scope of the record file should be kept
in separate files maintained at the regional office or other
central location. These files need not be aade publicly
available, although many of the documents in the files may be
available to the public if requested under FOZA.
Examples of documents that are irrelevant to the decision on
selecting a response action may include Hazard Ranking System
(HRS) scoring packages, contractor work assignments, cost
documentation (as opposed to cost effectiveness information), and
National Priorities List (NFL) deletion information. If,
however, these documents contain information that is considered
or relied on in the response action selection and is not
contained elsewhere in the record file, then the documents should
be included in the record file.
Information regarding FRP liability is generally not
included in the record file for selection of the response action
except to the extent such information (typically substance
specific) is considered or relied on in selecting the response
action. Documents relating to PRP liability, however, should be
compiled and maintained in the regional office or other central
location so that they are available at the time of notice to PRPs
or referral of any litigation.
6. Draft Documents and Internal Memoranda
In general, only final documents should be included in the
administrative record file. The record file should not include
preliminary documents such as drafts and internal memoranda.
Such documents are excluded from the record file because drafts
and internal memoranda are often revised or superseded by
subsequent drafts and memoranda prior to the selection of the
response action. The preliminary documents are, therefore, not
considered or relied on in making the response action decision.
Drafts (or portions of them) and internal memoranda should
be included, however, in three instances. First, if a draft
33
-------
OSWER Directive No. 9833.3A-1
document or internal memorandum is the basic for a response
decision the draft document or internal memorandum should be
placed in the record file. This *ay occur if the draft contains
factual information which was relied on but is not included in a
final document, a final document does not exist, or a final
document did not exist when the response decision was made.
Second, if a draft document or internal memorandum is
circulated by the lead agency to other persons (e.g., the support
agency, PRPs or the general public) who then submit comments
which the decisionmaker considers or relies on when making a
response action decision, relevant portions of the draft document
or the memorandum and comments on that document should be
included in the record file.
Third, if a draft document or internal memorandum explains
or conveys decisions on the procedures for selecting the remedy
or the substantive aspects of a proposed or selected remedy
(e.g., the scope of a site investigation or the identification of
potential ARARs), the document should be placed in the record
file, even though the document was signed by a person other than
the Regional Administrator and generated long before the decision
document was signed.
Examples of internal memoranda and staff notes which should
not be included in the record file are documents that express
tentative opinions or internal documents that evaluate
alternative viewpoints. Recommendations of staff to other staff
or management should also not be included in the record file,
except for those staff recommendations which ultimately embody a
final decision relevant to response selection. Drafts and
internal memoranda may also be subject to claims of privilege
(see section III.H., below).
H. Privileged Documents
Some documents in the administrative record file may be
protected from public disclosure on the basis of an applicable
privilege. Any documents which are considered or relied on in
a response action selection, but withheld from the public portion
of the record file based on privilege, must be placed in a
confidential portion of the record file (eee section II.H. at
page 19).
If a document is excluded from the public portion of the
record file based on privilege, the relevant information should,
to the extent feasible, be extracted and included in the public
33 See 40 C.F.R. |300.810(c).
34
-------
OSWER Directive No. 9833.3A-1
record film. This can often be accomplished by deleting or
redacting the privileged information from the document.
The privileges discussed below may be asserted with respect
to documents that are considered or relied on in the selection of
a response action. The head of the office responsible for
developing the document in question should assert the privilege.
In all cases, the official asserting a privilege should consult
with ORC.
Public disclosure of a privileged document may result in
waiver of the privilege, although the nature and extent of the
waiver will depend on the privilege asserted and the
circumstances of the disclosure. If the privilege is waived and
the document becomes a public document, it must be disclosed to
any requester. In light of the potential for waiver, it is
important that personnel not release potentially privileged
documents to any party without consulting with ORC.
Deliberative Process
The deliberative process privilege applies to pre-
decisional, deliberative communications that express opinions,
advice, and recommendations of staff to other staff or
management. The privilege functions to encourage the honest and
free expression of opinion, suggestions and ideas among those
formulating policy for government agencies (see "Guidance for
Assertion of Deliberative Process Privilege," 10/3/84).
In general, if a document contains factual information
forming the basis for the selection of the response action, the
factual portion should be included in the record file.
Use of the deliberative process privilege should be balanced
with the statutory mandate of including the public in the
response action selection process. The privilege should be
asserted if disclosure of the document will have an inhibiting
effect on frank and open discussion among government staff and
decisionmafcers. Documents should not be withheld solely because
they would reveal flaws in the case or information embarrassing
to the government. Specific procedures exist for assertion of
the deliberative process privilege, which include consulting with
ORC.
Confidential Business Information (CBI)
The EPA must withhold from the public record trade secrets
and commercial and financial information that is subject to
protection under 40 C.P.R. Part 2. However, Section I04(e)(7) of
CERCLA greatly restricts the assertions of confidentiality claims
35
-------
OSWER Directive No. 9833.3A-1
by PRPs at CERCLA sites. The decisionmaker should attempt to
avoid using CBI in Baking response action decisions and can do so
in nost cases by using other infomation instead. Where the
decisionmaker must use CBI in Baking its decision, 40 C.F.R. Part
2 and Section 104(e)(7) of CERCIA will apply and such information
should be placed in the confidential portion of the
administrative record file.
Attorney Work Product
This exclusion applies to documents prepared in anticipation
of possible litigation. The work product privilege covers all
documents prepared by an attorney or under an attorney's
supervision, including reports prepared by a consultant or
program employee. Litigation need not have commenced but it must
be reasonably contemplated. These documents generally relate to
enforcement or defensibility of a decision and are not considered
or relied on in selecting a response action. These documents
should not, therefore, be in the administrative record file.
Attorney-Client Communication
The attorney-client privilege applies to confidential
communications made in connection with securing or rendering
legal advice. The privilege is limited to communications where
there was an intention to keep the information confidential.
Personal Privacy
This exemption covers information about individuals in
personnel, medical, and similar files, the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy. The records must pertain to an individual, and not a
business, to be excluded from the public portion of the
administrative record file under this exemption. Often,
information subject to the protection under the personal privacy
privilege can be redacted from the document and the redacted
version can be placed in the public portion of the record file.
State Secrets
The lead agency is authorized to exclude from public
scrutiny information which, if released, would harm national
security or interfere with the government's ability to conduct
foreign relations. This privilege could be particularly
important where the PRP is a federal agency or a contractor for a
federal agency. In the case of a federal facility cleanup, an
See 40 C.F.R. |300.810(d).
36
-------
OSWER Directive No. 9833.3A-1
Inter-Agency Agreement should spell out procedures for asserting
this privilege.
Confidential Informant
Statements obtained from witnesses who have been granted
confidentiality nay be privileged.
Information Exempted by Other Statutes
Information specifically exeapted from disclosure by a
federal statute need not be part of the public record. The
statute in question must leave no discretion as to the
requirement that matters be withheld from the public, or it must
establish particular criteria for withholding or refer to
particular types of matters to be withheld.
I. Guidance Documents
Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a response action should
be included in the administrative record file for that response
action. Any guidance documents generated to address issues that
specifically arise at the site for which the record file is being
compiled should be physically included in the record file.
Certain guidance documents, however, do not have to b* kept in
the record file. Guidance documents not generated for the
particular site for which the record is being compiled may be
kept in a compendium of guidance documents maintained at the
regional office or other central location.
Each Region should maintain a compendium of guidance
documents which are frequently used in selecting response
actions. As with an administrative record file, the compendium
of guidance documents must be available to the public, but only
at the regional office or other central location. The record
file located at or near the site should contain an index to the
compendium of guidance documents. The Administrative Record
Coordinator should maintain and update the compendium of guidance
documents. If a guidance document maintained in the compendium
is considered or relied on when making a response action
decision, the index to the record file must list the document and
indicate its location and availability. See also Appendix E.
If a guidance document is listed in a bibliography to a
document included in the record file (e.g., listed in the
bibliography to the RI/FS), it need not be listed again in the
35 See 40 C.F.R. |300.805(a) (2) .
37
-------
OSWER Directive No. 9833.3A-1
index to th« record file. In this case, however, the index Bust
state that document* listed as bibliographic sources night not be
listed separately in the index.
If a guidance document which is not included in the guidance
compendium is considered or relied on in selecting the response
action, the document should be physically included in the record
file.
J. Technical Literature
Technical literature generated for the site at issue should
be physically included in the administrative record file for that
site, whether or not it is publicly available.
Similarly, technical literature not specifically generated
for the site which is not publicly available should also be
included in the site-specific record file. Such documents
include technical journals and unpublished documents that are not
available through the Library of Congress or not circulated to
technical libraries.
Publicly available technical literature not generated for
the site, however, need not be located at or near the site or at
the regional office or other central location if the documents
are referenced in the index to the record file. These
documents do not have to be physically included in the record
file, unless requested, because they are already available to the
public. Copying such documents creates a significant burden to
the lead agency and copyright laws may pose additional barriers
to such copying. Examples of publicly available technical
literature include engineering manuals, groundwater monitoring or
hydrogeology textbooks, ATSDR toxicological profiles, and
articles from technical journals.
Zf technical literature is listed in a bibliography to a
document included in the record file («.g., listed in the
bibliography to the RI/FS), it need not be listed again in the
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in the index.
Computer models and technical databases need not be
physically included in the record file but should be referenced
in the index to the record file and made available upon request.
Printouts or other documents produced from the models and
databases should be physically included in the record file if
36 See 40 C.F.R. |300.805(b) (3)
38
-------
OSWER Directive No. 9833.3A-1
such documents contain information which was considered or relied
on in selecting the response action.
K. Legal Sources
Copies of statutes and regulations cited in documents
included in the record file need not be included in the record
file if they are readily available to the public. For example,
the NCP and other regulations are easily accessible since they
are published in the Federal Register and the Code of Federal
Regulations (C.F.R.).
Copies of the actual standards (statutes or regulations)
comprising federal and state ARARs should be physically included
in the record file if they are not easily accessible. Also,
other federal and state criteria, advisories, and guidance
documents pertinent to the site (e.g., what the EPA refers to as
"TBCs," or standards "to be considered"), may not be easily
accessible. If such documents are cited in an RI/FS, appendix to
the RI/FS, EE/CA, or ROD, those advisories which are not readily
available should be included in the record file.
L. NPL Rulemaking Docket Information
Generally, information included in the National Priorities
List (NPL) rulemaking docket, such as the Hazard Ranking System
(MRS) scoring package and comments received on the listing, need
not be included in the record file for selection of a response
action. The NPL docket contains information relevant to the
decision to list a site, which may be irrelevant to the decision
on response action selection.
Documents in the NPL docket which contain sampling data or
other factual information which was considered or relied on in
selecting a response action should be included in the record file
if the information is not available already in the record file.
Such information may include early sampling data taken by parties
other than the lead agency or its contractors (e.g., a State).
M. RCRA Documents
If an action is taken under CERCLA at a site with a history
of Resource Conservation and Recovery Act (RCRA) activity, much
of the information relating to those RCRA activities may be
considered or relied on in making the CERCLA response action
selection. Any relevant RCRA information, particularly
information on waste management and RCRA corrective action at the
site, should be included in the administrative record file (e.g.,
RCRA permit applications, inspection reports, RCRA Facility
Assessment (RFA), RCRA Facility Investigation (RFI), Corrective
39
-------
OSWER Directive No. 9833.3A-1
Measures Studies (CMS), or responses to RCRA information
requests).
Not all pre-existing RCRA information will be considered or
relied on in selecting a CERCLA response action, but information
on types of wastes, quantity of wastes, and observations of
potential threats gathered during RCRA investigations generally
will be considered and thus should be included in the record
file.
N. Post-Decision Information
In all cases, documents generated or received after signing
the decision document should be kept in a post-decision document
file. This file is not part of the administrative record file
and should be maintained only at the regional office or other
central location.
In general, post-decision documents should not be added to
the administrative record file. Since the record file contains
the information which was considered or relied on in selecting
the response action, documents generated or received after
•electing the response action are not relevant to that response
decision and should not be included in the record file. Such
documents may, however, be relevant to later response selection
decisions and, if so, should be included in the record file
pursuant to Section 300.825 of the NCP.
Documents kept in the post-decision document file may be
added to the record file in the situations described below:
o Where a decision document does not address or reserves a
portion of the decision to be made at a later date.37 For
example, a decision document that does not resolve the type
of treatment technology. In such cases, the lead agency
should continue to add documents to the record file which
form the basis for the unaddressed or.reserved portion of
the decision;
o Where there is a significant change in the selected response
action. Changes that result in a significant difference
to a basic feature of the selected remedial action (e.g.,
timing, ARARs), with respect to scope, performance, or cost
57 40 C.F.R. |300.825(a) (1).
38 40 C.F.R. 1300.825(0)(2). See 40 C.F.R. |300.435(C)(2) (i).
40
-------
OSWER Directive No. 9833.3A-1
nay be addressed in an explanation of significant
differences. Section 117(c) of CERCIA states:
[a]fter adoption of a final remedial action plan -
(1) if any remedial action is taken, (2) if any
enforcement action under section 106 is taken, or
(3) if any settlement or consent decree under
section 106 or section 122 is entered into, and if
such action, settlement, or decree differs in any
significant respects from the final plan, the
President or the State shall publish an
explanation of the significant differences and the
reasons such changes were made.
The record file should include the explanation of
significant differences, underlying documentation for the
response action changes, any significant comments from the
public, and the lead agency responses to any significant
comments. A formal public comment period is not required
for an explanation of significant differences;
Where the changes are so significant that they fundamentally
alter the very nature or basis of the overall response
action, such changes will require an amended decision
document. The Region will decide whether a change to a
response action is considered a significant or a fundamental
change for purposes of addressing the change (see Chapter 8
of "Interim Final Guidance on Preparing Superfund Decision
Documents: The Proposed Plan and Record of Decision,1* June
1989, OSWER Directive No. 9355.3-02).
When the decision document is amended, the amended decision
document, the underlying documentation, any significant
comments from the public, and the lead agency's responses to
any significant comments, should be included in the record
file. ROD amendments will require a formal public comment
period;M
Where comments containing significant information are
submitted by interested persons after the close of the
public comment period. The lead agency must consider such
comments only to the extent that the comments contain
significant information not contained elsewhere in the
record file which could not have been submitted during the
public comment period and which substantially support the
39 40 C.F.R. |300.825(a) (2).
40 40 C.F.R. |300.435(C) (2) (ii).
41
-------
OSWER Directive No. 9833.3A-1
need to significantly alter the response action.41
Documents meeting this test should be included in the record
file, along with the lead agency's responses to the
significant comments, whether or not such information
results in a change to the selected decision. In this case,
the comments and the lead agency responses to such comments,
including any supporting documents, should be included in
the record file; and
o Where the lead agency holds public comment periods after the
selection of the response action. The lead agency may
hold additional public comment periods or extend the time
for submission of public comment on any issue concerning
response selection. Such comment should be limited to the
issues for which the lead agency requested additional
comment. All comments responsive to the request submitted
during such comment periods, along with any public notices
of the comment period, transcripts of public meetings, and
lead agency responses to the comments, should be placed in
the record file.
IV. INVOLVEMENT OF OTHER PARTIES
A. States
A.I. State Involvement in Federal-Lead Sites
The administrative record for a federal-lead site must
reflect the state's opportunity to be involved in selecting the
response action. The record for a remedial action should include
documents that reflect at least the following state participation
or the opportunity for state participation:
o Letter to state requesting identification of ARARs and the
final response from state identifying ARARs (and
certification from the state);
o Comments, or the opportunity to comment, on a proposed
finding or decision to select a response action not
attaining a level or standard of control at least equivalent
to a state ARAR;
41 40 C.F.R. |300.825(C).
42 40 C.F.R. |300.825(b).
43 See also Section 121 (f) of CERCLA
42
-------
OSWER Directive No. 9833.3A-1
o Comments, or the opportunity to comment, on the final draft
RI/FS, the proposed plan and EPA responses to the comments;
o Significant post-decision comments by the state and EPA
responses to the comments (place in the post-decision
document file for possible inclusion in the record file -
see section III.N. at page 40).
The administrative record for a removal action should
reflect any state participation, especially any state comments
and EPA responses to the comments.
The record file should only include final state comments,
unless the comments explain or convey decisions on substantive
aspects of a proposed or selected remedy (e.g., the scope of a
proposed action or the identification of potential ARARs). Any
preliminary deliberations between the state and EPA relevant to
the response selection need not be part of the record file if
superseded by documentation of the state's final position.
The governing body of an Indian tribe should be afforded the
same treatment as a state in accordance with Section 126 of
CERCLA.
A. 2. Federal Involvement in State-Lead Sites
Where a state has been officially designated the lead agency
for a CERCLA site, the state must compile and maintain the
administrative record for that site in accordance with Section
113(k) of CERCLA and Section 300.800 of the NCP. since EPA has
ultimate responsibility for both the selection of a response
action (e.g., EPA signs the ROD) and the record on which that
response action is based, EPA must participate in compiling and
maintaining the record. In such cases, EPA must assure that the
record file forms a complete basis for the selection of the
response action.
The state as lead agency must maintain the record file at a
state office (e.g., the state's central environmental agency
office) and at or near the site. At a minimum, the state as lead
agency also must transmit a copy of the index, the RI/FS work
plan, the RI/FS released for public comment, the proposed plan,
and any public comments received on the RI/FS and the proposed
plan to the appropriate EPA Regional office. These documents
should be transmitted to EPA as they are generated or received.
Transmittal of the index will not suffice. In addition, other
documents may be requested by EPA on a case-by-case basis.
** See 40 C.F.R. |300.800(C).
43
-------
OSWER Directive No. 9833.3A-1
The Superfund Memorandum of Agreement (SMOA), or Cooperative
Agreement (CA), must address the administrative record
requirements. The following language should be included in the
SNOA or CA where the state has been officially designated the
lead agency for a CERCLA site:
The state must compile and maintain the administrative
record upon which the selection of the [remedial,
removal] action is based. The compilation and
maintenance of the record must follow 40 C.F.R. Part
300, Subpart I and EPA guidance on the administrative
record. The administrative record must be located at
the state [environmental agency] office, and at or near
the site. In addition, the state must submit copies of
the index, the RI/PS wor)qplan, the RI/FS released for
public comment, the proposed plan, and any public
comments received on the RI/FS and proposed plan to the
EPA Regional office, as they are added to the
administrative record file. In addition, the state
must submit other documents that are requested by EPA.
The state shall comply with Section 113 of CERCLA and
any applicable regulations. EPA may require the
retention of other documents for cost recovery
purposes.
The record file compiled by the state should reflect EPA's
participation, comments, concurrence, and disagreements at the
same stages as are required for state involvement in a federal-
lead site. The state must place in the record file any documents
submitted by EPA for inclusion in the record file.
B. Federal Facilities
Federal agencies have the responsibility, pursuant to
Executive Order 12580, to establish the administrative record for
federal facilities under their jurisdiction, custody, or control
where using CERCLA authority for a response action. The record
file for a federal facility must include all documents considered
or relied on in selecting a response action, including documents
submitted by EPA on the selection of the response action. The
federal agency must comply with all NCP (see Appendix N) and
CERCLA requirements in compiling and maintaining the record,
including the minimum public participation requirements in
Sections 113 and 117 of CERCIA.
*5 See 40 C.F.R. |300.800(b)
44
-------
OSWER Directive No. 9833.3A-1
The federal agency must maintain the record file at or near
the site and ensure easy public access to the record file. If,
for example, a site is a Department of Defense facility, the
record file should be housed in a location which does not require
military clearance for access. The federal agency should keep a
complete copy of the record file at a location within the federal
agency office comparable to an EPA Regional office.
At NPL sites and any other site where EPA is involved in
selecting a response action at a federal facility, EPA must
participate in compiling and maintaining the record. In such
cases, EPA must assure that the record file forms a complete
basis for the selection of the response action. At a minimum,
the federal agency must transmit a copy of the index, the RI/FS
workplan, the RI/FS released for public comment, the proposed
plan, and any public comments received on the RI/FS and proposed
plan to the appropriate EPA Regional office. These documents
should be transmitted to EPA as they are generated. Transmittal
of the index will not suffice. In addition, other documents may
be requested by EPA on a case-by-case basis. Inter-Agency
Agreements (lAGs) should spell out procedures for compiling and
maintaining the record.
C. ATSDR
Participation in the selection of a response action by the
Agency for Toxic Substance and Disease Registry (ATSDR) should be
reflected in the administrative record. The record file must
include the initial and subsequent health assessments and any
other information EPA solicits and obtains from ATSDR which EPA
considers or relies on in its selection of a response action.
Draft versions of the health assessment and other draft
documents upon which ATSDR comments should not be included in the
record file. If, however, EPA solicits comments from ATSDR on a
draft document such as a draft work plan or RI report, and
receives formal comments from ATSDR which EPA considers or relies
on in selecting a response action, then the document and comments
should be included in the record file.
In the event that the ATSDR health assessment and EPA's risk
assessment appear inconsistent, a document explaining the
difference should be generated and placed in the record file.
D. Natural Resources Trustees
Section 122(j)(l) of CERCLA requires that the EPA give
notice to the Natural Resources Trustee of a release or
threatened release of any hazardous substance which may have
resulted in damages to natural resources. The administrative
45
-------
OSWER Directive No. 9833.3A-1
record file must include the notice to the Natural Resources
Trustee, and any subsequent final communications (e.g., a release
or final report). in addition, any factual information provided
by the Natural Resources Trustee which is considered or relied on
in selecting a response action should be included in the record
file.
In the event that the Natural Resources Trustee's damage
assessment and EPA's risk assessment appear inconsistent, a
document explaining the difference should be generated and placed
in the record file.
V. DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. They are not intended and
cannot be relied upon to create any rights, substantive or
procedural, enforceable by any party in litigation with the
United States. EPA reserves the right to act at variance with
these policies and procedures and to change them at any time
without public notice.
VI. FURTHER INFORMATION
For further information concerning this memorandum, please
contact Gary Worthman in the Office of Waste Programs Enforcement
at FTS (202) 382-5646.
46
-------
OSWER Directive No. 9833.3A-1
GLOSSARY
Administrative Record; as used in this guidance, the body of
documents that were considered or relied on which form the basis
for the selection of a response action.
Administrative Record File: as used in this guidance, the
ongoing collection of documents which are anticipated to
constitute the administrative record when the selection of
response action is made.
ARAR; applicable or relevant and appropriate requirements (see
Section 121(d) of CERCLA).
ATSPR; Agency for Toxic Substance and Disease Registry.
CA: cooperative agreement (entered into with a state or local
government to transfer funds to conduct response activities).
CBI; confidential business information.
CERCLA: Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (also known as Superfund).
C.F.R.; Code of Federal Regulations.
CMS; corrective measure study (RCRA corrective action document,
equivalent to an FS).
CRC: Community Relations Coordinator.
CRP; community relations plan.
Document; as used in this guidance, includes writings, drawings,
graphs, charts, photographs, and data compilation from which
information can be obtained. It does not, however, include
physical samples.
DOJ; Department of Justice.
EE/CA; engineering evaluation/cost analysis (removal document).
EPA; United States Environmental Protection Agency.
ESP; Environmental Services Division.
Explanation of Significant Differences; post-ROD document
described in Section 117(c) of CERCLA.
47
-------
OSWER Directive No. 9833.3A-1
FQIA; Freedom of Information Act.
FSP: field sampling plan.
HRS: Hazard Ranking System.
IAG; inter-agency agreement (made with a federal agency).
Lead Agency; the agency that provides the OSC or RPM to plan and
implement a response action under the NCP.
NCP; National Oil and Hazardous Substances Pollution Contingency
Plan, as revised on March 8, 1990 (55 FR 8859).
NPL: National Priorities List.
OE: EPA Office of Enforcement.
OERR; EPA Office of Emergency and Remedial Response.
OIRM; EPA Office of Information Resources Management.
Operable Unit; a discrete action that comprises an incremental
step toward comprehensively addressing site problems (see section
300.5 of the NCP).
ORC; EPA Office of Regional Counsel.
OSC; On-Scene Coordinator (project manager for a removal action)
OSWER; EPA Office of Solid Waste and Emergency Response.
OWPE; EPA Office of Waste Programs Enforcement.
PA; preliminary assessment.
PRP; potentially responsible party.
OAPP; quality assurance project plan.
RA: remedial action.
RCRA; the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act.
RD; remedial design.
RI/FS; remedial investigation/feasibility study.
48
-------
OSWER Directive No. 9833.3A-1
RFA: RCRA facility assessment (RCRA document, equivalent to a
PA/SI).
RFI; RCRA facility investigation (RCRA corrective action
document, equivalent to an RI).
ROD: Record of Decision (documents the selection of a remedial
action).
RPM: remedial project manager (project manager for a remedial
action).
gAP: sampling and analysis plan.
SARA; Superfund Amendments and Reauthorization Act of 1986 (see
CERCLA above).
Site File: the file containing all site documentation.
gj; site investigation.
SMOA: Superfund memorandum of agreement (made with a state).
Support Agency: the agency that provides the support agency
coordinator to furnish necessary data to the lead agency, review
response data and documents, and provide other assistance as
requested by the lead agency. The support agency may also concur
on decision documents.
49
-------
APPENDIX A
SECTION 113 (J) OP CERCLA
tj) JUDICIAL REVIEW.—
(1) LIMITATION.—In any judicial action under this Act. judi-
cial review of any issues concerning the adequacy of any re-
sponse action taken or ordered by the President shall be limit.
ed to the administrative record. Otherwise applicable princi-
ples of administrative law shall govern whether any supple-
mental materials may be considered by the court.
(2) SrAJfDARD.—In considering objections raised in any judi-
cial action under this Act, the court shall uphold the Presi-
dent's decision in selecting the response action unless the ob-
jecting party can demonstrate, on the administrative record.
that the decision was arbitrary and capricious or otherwise not
in accordance with Law.
(3) REMEDY.—If the court finds that the selection of the re-
sponse action was arbitrary and capricious or otherwise not in
accordance with law, the court «h«ll award (A) only the re-
spons* costs or damages that are not inconsistent with the na-
tional contingency plan, and (B) such other relief as is consist-
ent with the National Contingency Plan.
(4) PEOCTDURAL XK&ORS.—In reviewing alleged procedural
errors, the court may disallow costs or damages only if the
errors were so serious and related to matters of such central
relevance to the action that the action would have been signifi-
cantly changed had such errors not been made.
50
-------
SECTION H3 (K) OF CERCIA
(k) ADMINISTRATIVE RECORD AND PARTICIPATION PROCEDURES.—
(1) ADMmiSTRATivE RECORD.—The President shall establish
an administrative record upon which the President shall base
the selection of a response action. The administrative record
shall be available to the public at or near the facility at issue.
The President also may place duplicates of the administrative
record at any other location.
(2) PARTICIPATION PROCEDURES.—
(A) REMOVAL ACTION.—The President shall promulgate
regulations in accordance with chapter 5 of title 5 of the
United States Code establishing procedures for the appro-
priate participation of interested persons in the develop-
ment of the administrative record on which the President
will base the selection of removal actions and on which ju-
dicial review of removal actions will be based.
(B) REMEDIAL ACTION.—The President shall provide for
the participation of interested persons, including potential-
ly responsible parties, in the development of the admim«.
trarive record on which the President will base the selec-
tion of remedial actions and on which judicial review of re-
medial actions will be based. The procedures developed
under this subparagraph shall include, at a minirnntn,
each of the following:
(i) Notice to potentially affected persons and the
public, which shall be accompanied by a brief analysis
of the plan and alternative plans that were consid-
ered.
(ii) A reasonable opportunity to comment and pro-
vide information regarding the plan.
(iii) An opportunity for a public meeting in the af-
fected area, in accordance with section HT(aX2) (relat-
ing to public participation).
(iv) A response to each of the «jgnifir*nt comments,
criticisms, and new data submitted in written or oral
presentation*.
(v) A statement of the bads and purpose of the se-
lected action.
For purpoMt of this subparagraph, the administrative
record shall include all item* developed and received
under thai subparagraph and all item* deacribed in the
second sentence of section 117(d). The Preaident shall pro-
mulgate regulations in accordance with chapter 5 of title 5
of the United States Code to carry out the requirement* of
thi« subparagraph.
(C) brmnc EBCORD.—Until such regulations under sub-
paragraphs (A) and (B) art promulgated, the administra-
tive record shall consist of all items developed and re-
cadved pursuant to current procedures for selection of the
response action, indu'ti^g procedure* for the participation
of interested partiea and the public. The development of an
administrative record and the selection of response action
under this Act shall not include an adjudicate^ hearing.
(D) PornrnAiLT IHPONBBUI PAJOTB.—This Prtsidsnt
shall ™«if« reasonable efforts to identify and notify poten-
tially responsible parties as early as possible before selec-
tion of a response action. Nothing in this paragraph snail
be construed to be a defense to liability.
51
-------
APPENDIX B
MODEL FILE STRUCTURE
This model file structure may be used to compile an
administrative record file for a remedial action, a removal action,
or a combination of both remedial and removal actions. If the
record documents a remedial action decision, section 2 of the file
will contain only those removal action documents which (a) predate
the remedial record of decision and (b) are relevant to the
selection of the remedial action. If the record documents a removal
action decision, sections 3, 4, and 5 of the file will contain only
those remedial action documents which (a) predate the removal action
memorandum and (b) are relevant to the selection of the removal
action.
Justification is unnecessary for file categories without any
documents. Those categories should be left out of the index.
A document should be filed in only one category/ even if it
falls into more than one category. It may be referenced in another
category. If necessary, additional subcategories may be developed
to accommodate documents not falling in any of the defined
subcategories. Avoid adding categories of miscellaneous documents.
The correspondence subcategory can include comments and
responses specific to the category. If the comments and responses
are general in nature or address more than one category/ they may be
included in the public participation category.
52
-------
INDEX [FIRST DOCUMENT]
1.0 SITE IDENTIFICATION
1.1 Background - RCRA and other information
1.2 Notification/Site Inspection Reports
1.3 Preliminary Assessment (PA) Report
1.4 Site Investigation (SI) Report
1.5 Previous Operable Unit Information
2.0 RZMOVAJL RESPONSE
2.1 Sampling and Analysis Plans
2.2 Sampling and Analysis Data/Chain of Custody Forms
2.3 EE/CA Approval Memorandum (for non-time-critical removals)
2.4 EE/CA
2.5 Action Memorandum
2.6 Amendments to Action Memorandum
3.0 REMEDIAL INVESTIGATION (RI)
3.1 Sampling and Analysis Plan (SAP)
3.2 Sampling and Analysis Data/Chain of Custody Forms
3.3 Work Plan
3.4 RI Reports
4.0 FEASIBILITY STUDY (FS)
4.1 ARAR Determinations
4.2 FS Reports
4.3 Proposed Plan
4.4 Supplements and Revisions to the Proposed Plan
5.0 RECORD OF DECISION (ROD)
5.1 ROD
5.2 Amendments to ROD
5.3 Explanation* of Significant Differences
6.0 STATE COORDINATIOH
6.1 Cooperative Agreements/SMOAs
53
-------
5.2 State Certification of A_RARs
7.0 ENFORCEMENT
7.1 Enforcement History
7.2 Endangerment Assessments
7.3 Administrative Orders
7 . 4 Consent Decrees
7.5 Affidavits
7.6 Documentation of Technical Discussions with PRPs on
Response Actions
7.7 Notice Letters and Responses
8.0 HEALTH ASSESSMENTS
8.1 ATSDR Health Assessments
8.2 Toxicological Profiles
9.0 NATURAL RESOURCE TRUSTEES
9.1 Notices Issued
9.2 Findings of Fact
9.3 Reports
10.0 PUBLIC PARTICIPATION
10.1 Comments and Responses
10.2 Community Relation* Plan
10.3 Public Notice(s) (Availability of the Administrative Record
File, Availability the Proposed Plan, Public Meetings)
10.4 Public Meeting Transcripts
10.5 Documentation of Other Public Meetings
10.6 Fact Sheets and Press Releases
10.7 Responsiveness Summary
10.8 Late CoaMnts
11.0 TECHNICAL SOURCES AND GUIDANCE DOCUMENTS
11.1 EPA Headquarters Guidance
11.2 EPA Regional Guidance
11.3 State Guidance
54
-------
11.4 Technical Sources
55
-------
APPENDIX C
MODEL INDEX
Attached is an excerpt of the Index of documents included in
the Administrative Record for the Love Canal site. The Index lists
the documents according to the EPA file structure (category number)
The Index includes the following information fields:
DOCUMENT NUMBER.
TITLE,
AUTHOR.
RECIPIENT.
DATE
TYPE.
CATEGORY,
indicates the first and last page numbers of
the document. Both page numbers will be the
same for one-page documents. In this
particular index, the document number
consists of a three letter site code
followed by microfilm reel and frame
numbers.
indicates the title or an enhanced
description of the document in parentheses.
indicates the author or primary originator
and the author's corporate affiliation.
indicates the addressee or primary recipient
and the addressee's corporate affiliation.
indicates document date by month/day/year.
/ / means no date was available.
indicates the document type.
indicates the EPA file structure number.
56
-------
APPENDIX D
MODEL POSITION DESCRIPTION FOR ADMINISTRATIVE RECORD COORDINATOR
INTRODUCTION
The incumbent serves as an Administrative Record Coordinator in
one of the Regional offices of the Environmental Protection Agency
(EPA). [Each Region may want to add an introduction to Superfund
and the Regional office here.] The incumbent is responsible for
compiling and maintaining administrative record files for CERCLA
(Superfund) response action decisions.
Section 113(k) of CERCLA requires the establishment of an
administrative record upon which the selection of a response action
is based. Such a record is a compilation of all documents which the
Agency considered or relied on in making its response action
decision. Judicial review of any issues concerning the adequacy of
any response action decision is limited to the administrative
record. Public participation in the development of the record is
required by law.
Establishment of thorough and complete administrative records is
essential to EPA's Superfund program. Administrative records which
include public participation and withstand judicial scrutiny allow
EPA to meet its goals and objectives.
The incumbent will be responsible for compiling and maintaining
administrative records for large numbers of Superfund sites. Each
record requires coordination with many people including: Federal
staff, state and local officials, private contractors, the general
public and potentially responsible parties. Further
responsibilities include deliberations over which materials to
include in each record and requirements for dealing with privileged
materials.
MAJOR DUTIES AMD RESPOND I BILjITIBfi
1. The incumbent is responsible for compiling and maintaining all
of the administrative records for selection of CZRCLA response
actions for a Regional office of the EPA. The incumbent must
have complete knowledge of all rules and procedures governing
development of the administrative record files.
2. Receives end reviews all documents submitted by the Remedial
Project Manager (RPM), On-Scene Coordinator (08C), Office of
Regional Counsel (ORC) and other appropriate staff for inclusion
in the administrative record files. The incumbent will
coordinate with staff responsible for deciding what documents
are included in the record and will arrange for adding documents
to the record file.
57
-------
3. Compiles the administrative record file for each CERCLA
response action. This includes logging the receipt of each
document, maintaining a central master file of documents,
redacting information from privileged documents as directed
by ORC, maintaining any privileged portions of each record
using Agency security measures, arranging for copying of
documents in each record and transmitting the documents to
appropriate repositories.
4. Coordinates the compilation of the administrative record
files with state and federal agencies. This includes
receiving records maintained by state and federal agencies
and notifying appropriate personnel of these records for
their review.
5. Maintains and updates (monthly) an index of each
administrative record file in conformance with Agency
guidelines.
6. Ensures public access to administrative record files. This
includes notifying th« public of the availability of the
record, making the record available for public inspection,
coordinating with personnel at the facility where the record
is located, maintaining an adequate copying facility and
maintaining a log of persons reviewing documents. The
incumbent will have to respond to phone calls and visitors
wanting information on and from the record. These functions
will be coordinated with the Office of Public Affairs and
Superfund Community Relations Coordinators.
7. Maintains the Regional Superfund Central Library of guidance
documents and technical references.
CONTROLS OVER WORK
The incumbent works under the general supervision of the
[Hazardous Waste. Branch Chief]. An administrative record is
reviewed and certified for litigation by a person designated by
the Regional Administrator.
58
-------
APPENDIX' E
COMPENDIUM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
USERS MANUAL
U. S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WASTE PROGRAMS ENFORCEMENT
MAY 1989
59
-------
TABLE OF CONTENTS
Section Pgge
i 0 INTRODUCTION ;;;
2.0 OVERVIEW OF COMPENDIUM USE /;)
:.l USE BY EPA PERSONNEL (I"
2.: USE BY THE PUBLIC •*;
3.0 STRUCTURE OF THE COMPENDIUM
3.1 FILE STRUCTURE ......................................... •}>
3.2 INDEX STRUCTURE ......................................... 3
4.0 UPDATING THE COMPENDIUM ....................................... ,'5j
4.1 REGIONAL INPUT
4.2 KEEPING THE COMPENDIUM CURRENT
LIST OF TABLES
Table
3-1 COMPENDIUM CATEGORIES AND NUMBER SERIES
Appendix
R]
COORDINATORS
(A") REGIONAL COMPENDIUM LOCATIONS AND ADMINISTRATIVE RECORD
(*) COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
INDEX
60
-------
1.0 INTRODUCTION
This manual describes how to use the "Compendium of CERCLA Response Selection
Guidance Documents" (Compendium). Each U.S. Environmental Protection Agency (EPA)
Regional Office maintains a compendium of guidance documents frequently used during
development and selection of response actions under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA).
EPA Headquarters used several sources to develop the initial Compendium. These sources
included a pamphlet titled "Selected Technical Guidance for Superfund Projects" (OSWER
Directive 9200.7-01); the OSWER Directive System; the Superfund, Resource Conservation and
Recovery Act (RCRA), and Enforcement dockets; the Hazardous Waste Collection Database; and
any existing regional compendiums. The documents in the Compendium are referenced in
administrative records for decisions on selection of response actions.
The administrative record described here is the body of documents that form the basis for
selection of a CERCLA response action. Establishment of the administrative record is required
by §113(k) of CERCLA. An administrative record is the compilation of documents considered or
relied on by EPA in making t decision. Documents that EPA anticipates will be included in the
administrative record when the decision on a response action selection is made, are referred to as
the 'administrative record file." Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a CERCLA response action should be part of an
administrative record file.
Certain frequently used guidance documents may be referenced in the index to an
administrative record but not physically included in the administrative record file. The reference
should indicate the title and location of any documents included in the administrative record but
maintained in the Compendium, which is kept at a central regional location. If a guidance
document that a not listed ia the Compendium is considered or relied on in selecting the response
action, the dooMMt must be physically included in the administrative record file. The
Compendium itfct reduce the burden of copying and storing multiple copies of frequently used
guidance doctUBMta.
Section 2.0 of this manual briefly discusses use of the Compendium by EPA personnel and
the public. Section 3.0 discusses the Compendium's file and index structure. Documents in the
Compendium are filed in three-ring binders and listed on an index which is generated by and
(1)
61
-------
maintained on a computer database. Procedures for updating the Compendium are presented in
Section 40.
2.0 OVERVIEW OF COMPENDIUM USE
The Compendium is intended for use by two groups: EPA personnel, during the process
of response action selection and administrative record development, and the public, for review of
documents referenced in the index to an administrative record.
The user should note that although the term "guidance" is often used in discussing the
Compendium, it does not imply that only guidance documents are included. The documents may
also be policies, memoranda, clarifications, cue studies, manuals, handbooks, reports, and other
documents used in the selection of CERCLA response actions.
2.1 USE BY EPA PERSONNEL
EPA personnel use the Compendium primarily to reference frequently used guidance
documents that may be maintained in the Compendium rather than physically included in each
administrative record file. The index must indicate which documents are physically located in
the Compendium and must specify the location and accessibility of the Compendium. The index
should also reference only the specific documents in the Compendium that were considered or
relied on for the site for which the record is being compiled. The index should not reference the
entire Compendium.
2.2 USE BY THE PUBLIC
As with any unrestricted document included in a record, the Compendium documents are
accessible for public review. When EPA publishes a notice of availability of an administrative
record file, that notice will include the location of the Compendium. The Compendium will be
available for pobefc viewing at a central regional establishment (for example, the EPA Regional
Office), and Me$ or near the site for which the record is being compiled. (See Appendix A for
a list of the location of each regional copy of the Compendium and the names of the Regional
Administrative Record Coordinators.)
(2)
62
-------
3.0 STRUCTURE OF THE COMPENDIUM
Currently, the Compendium is organized into 10 categories. An overview of the file
;;ruc:^.-e \s presented below. as well as a discussion of the index that identifies the documents
included in the Compendium. This section also discusses the data elements identified in the
index. The data elements provide vital information on the documents included in the
Compendium and are contained in a database used to compile the Compendium and generate the
index.
3.1 FILE STRUCTURE
The Compendium is structured according to 10 major categories that generally reflect the
various components of a response action selection under CERCLA. Table 3-1 lists the current
Compendium categories. The documents are further grouped into subcategories that indicate
their more specific nature, when applicable. For example, the remedial investigation/feasibility
study (RI/FS) section of the Compendium is broken down into more specific subcategories to
identify the wide range of RI/FS documents available. When the documents apply to multiple
categories, secondary references are provided in the Compendium index.
Each document has been assigned a unique four-digit document number. The bound
documents contained in etch category are arranged numerically. When a user wants to access a
document, he or she will find the document filed according to the assigned number. The four-
digit number series assigned to each category ire also listed in Table 3-1.
3.2 INDEX STRUCTURE
When an administrative record index refers to a document contained in the Compendium,
that document is also identified in the Compendium index. The index, contained as the first
document in the Compendium, provides the information necessary to identify and locate the
desired docuoMB (For a copy of the current Compendium index, see Appendix B.)
BectUM ia flMMt c*»e$ the user will know the title of the document rather than the number
assigned, the index lists the documents under each category in alphabetical order. An
alphabetical listing of secondary references follows the primary documents listed under each
category.
(3)
63
-------
TABLE 3-1
COMPENDIUM CATEGORIES AND NUMBER SERIES
CATEGORIES NUMBER SERIES
Index 0000
Pre-Remedial 0001-0999
Removal Action 1000-1999
Remedial Investigation/ 2000-2999
Feasibility Study
General 2000-2099
RI Data Quality/Site &
Waste Assessment 2100-2199
Land Disposal Facility Technology 2200-2299
Other Technologies 2300-2399
Groundwater Monitoring &
Protection 2400-2499
ARARj1 3000-3999
Wattr Quality 4000-4999
Risk Assessment 5000-5999
Cost Analysis 6000-6999
Community Relatiou 7000-7999
Enforcement 1000-1999
Set**** R..*y/DeeMoi 9000-9999
1 Applicable or Relevant and Appropriate Requirements
64
-------
The Compendium index is maintained on a database using dBASE III Plus software. This
database contains numerous data elements that store the information distinguishing and grouping
each document into the appropriate categories. The database is currently maintained at EPA
Headquarters.
Maintaining the index in a database allows the information to be organized in different
<*ays. For example, should the Region need an index that is sorted entirely in alphabetical order
by title, chronologically by document date, numerically by the number assigned each document.
etc., EPA Headquarters can generate and forward such an index. The data elements of the
Compendium database, as identified on the index, are included in Appendix B.
4.0 UPDATING THE COMPENDIUM
The Compendium is designed to allow for the periodic addition of newly developed policy
or guidance documents. Updates to the Compendium are necessary in the following cases: (1)
EPA releases relevant new guidance, policy, reports, etc.; (2) regional staff find additional
documents that should be included in the Compendium; and (3) existing documents are revised or
superseded. EPA Headquarters will continue to monitor the information sources used to develop
the initial Compendium for new or revised documents that may qualify for inclusion in the
Compendium.
Guidance documents identified for addition to the Compendium will be reviewed and
relevant information will be entered into the existing database. After the database is updated, a
new index will be generated and sent to each Regional Office. This new index will replace any
previous indices. Hard copies of the additional documents will be sent to each region for
inclusion in the Compendium. The revised index will indicate the category for each new
document.
4.1 RXGIONAL INPUT
in the response action selection process, as well as Administrative Record
Coordinator*, mtj find documents that are frequently included in administrative records but are
not referenced ia tht Compendium. In such cases it may be desirable to include the documents
in the Compendium as part of the updating process. However, since the Compendium is designed
to be nationally applicable, only documents used frequently in different regions will be included.
Any region-specific document should be maintained in separate regional files and not in the
Compendium.
(5)
65
-------
4.2 KEEPING THE COMPENDIUM CURRENT
Once a document is included m :he Compendium, it will remain in the Compendium ;o
maintain the integrity of any record that refers to it. However, documents contained in the
Compendium may be revised in the future to reflect changes, for example, changes in policy,
technology, or law. The most current version of these documents will be added to the
Compendium, as appropriate, so that they will be available for the administrative record process.
Although no document included in the Compendium will ever be replaced or removed
once an administrative record index refers to it, those documents that are superseded will be
flagged and identified on a separate index (superseded index) attached to the Compendium's mam
index. The superseded index will also identify the corresponding revised version added to the
Compendium to indicate the new document that should be used.
Response action selections frequently rely on technical data generated at Superfund sites
across the country. Such data is often maintained on national databases. Depending on their use
and availability, certain of these databases may be included in the Compendium. For example,
the Public Health Risk Evaluation Database (PHRED) is part of the Compendium. PHRED is
stored on two floppy diskettes that are regularly updated as additional information becomes
available. Whenever updated PHRED diskettes are generated, they will be added to the
Compendium. Those diskettes that were previously included will also remain in the Compendium
and will be identified on the superseded index.
(6)
66
-------
(APPENDIX A)
REGIONAL COMPENDIUM LOCATIONS AND ADMINISTRATIVE RECORD COORDINATORS
Region
I
II
III
IV
VI
Address
90 Canal Street
Boston, MA 02203
60 Westview Street *
Lexington, MA 02173
26 Federal Plaza
New York, NY 10278
Woodbridge Avenue *
Raritan Depot - Bldg 10
Edison, NJ 08837
841 Chestnut Street
Philadelphia, PA 19107
345 Courtland Street, N.E.
Atlanta, GA 30365
230 South Dearborn Street
Chicago, IL 60604
1445 Ross Avenue
12th Floor, Suite 1200
Dallas, TX 75270
Coordinator/PH *
1. Remedial
2. Removal
1. Brenda Haslett
(617)573-1759
FTS 833-1759
2. Pam Bruno
(617)860-4309
1. Jenny Delcimento
(212)264-8676
FTS 264-8676
2. Norman Vogelsang
(201)321-6657
FTS 340-6657
1. Margaret Leva
(215)597-3037
FTS 597-3037
2. Joan Henry
(215)597-2711
FTS 597-2711
1. Debbie Jourdan
(404)347-2930
FTS 257-2930
2. Same
1. Jamie Bell
FTS 353-7446
2. Jan Pfundheller
FTS 353-7626
1. Karen Witten
(214)655-6720
FTS 255-6720
2. Joann Woods
(214)655-2270
FTS 255-2270
The Compendium was initially distributed to remedial
Administrative Record Coordinators only. Copies may be
located at this address.
67
-------
Region
VII
VIII
IX
Address
726 Minnesota Avenue
Kansas City, KS 66101
25 Funston Road *
Kansas City, KS 66115
999 18th street
Suite 500
Denver, CO 80202
215 Fremont Street
San Francisco, CA 94105
1200 Sixth Avenue
Seattle , WA 98101
Coordinator/PH #
1. Remedial
2. Removal
1. Barry Thierer
FTS 276-7052
2. Helen Bennett
(913)236-3881
FTS 757-3881
1. Carole Macy
FTS 330-1281
2. Tina Ardemus
FTS 330-7039
1. Tom Mix
FTS 484-1960
Don Briggs
FTS 556-6637
2. Holly Hadlock
(415)768-1354
1. Lynn Williams
(206)442-2121
FTS 399-2121
2. Same
The Compendium was initially distributed to remedial
Administrative Record Coordinators only. Copies may not be
located at this address.
68
-------
(APPENDIX 8s)
COMPENDIUM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
INDEX
69
-------
TABLE OF CONTENTS
Cr;; :-•• - Subcaieggrv
P-e- Remedial OCOl-0002
Removal Ac:ion 1000-1008
RI FS - General 2000-2012
RL FS - RI Data Quality/Site it Waste Assessment 2100-21 19
RI, FS - Land Disposal Facility Technology 2200-2212
RI/ FS - Other Technologies 2300-2320
RI, FS - Ground-Water Monitoring & Protection 2400-2408
ARARs 3000-3005
Water Quality 4000-4003
Risk Assessment 5000-5015
Cost Analysis 6000-6001
Community Relations 7000-7000
Enforcement 8000-8001
Selection of RiHrtr/Dtcisioa Documents 9000-9001
Data Element Definitions
List of Organizational Abbreviations and Acronyms Identified in the Index
*The range for each number series identified represents the numbers assigned to those document
currently in the Compendium.
70
-------
PAGE NO. 1
02/03/92
DOC
No Vol Title/ID Nurtber
-INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Date Authors
======== ================
Super
No. Pages
0000 1 INDEX TO COMPENDIUM OF CERCLA RESPONSE SELECTION
GUIDANCE DOCUMENTS
**** Pre-Remedial
05/01/89 OWPE PRC-ENVIRONMENTAL
MANAGEMENT. INC.
0001 1 EXPANDED SITE INSPECTION (ESI) TRANSITIONAL
GUIDANCE FOR FY-88; OSUER #9345.1-02
000? 1 PRELIMINARY ASSESSMENT (PA) GUIDANCE FISCAL YEAR
1988; OSWER «f9345.0-01
**** Removal Action
10/01/87 OERR
01/01/88 OERR/KSCD
74
83
1000 1 CERQA REMOVAL ACTIONS AT METHANE RELEASE SITES;
OSUfcR K9J60.0-8
01/23/86 LONGEST, H.L./OERR
1001 1 COSTS OF REMEDIAL RESPONSE ACTIONS AT UNCONTROLLED
HAZARDOUS WASTE SITES
1002 1 EMERGENCY RESPONSE PROCEDURES FOR CONTROL OF
HAZARDOUS SUBSTANCE RELEASES; EPA-600/D-84-023
1003 1 ENVIRONMENTAL REVIEW REQUIREMENTS FOR REMOVAL
ACTIONS; OSWER 09318.0-05
1004 1 GUIDANCE ON IMPLEMENTATION OF THE "CONTRIBUTE TO
EFFICIENT REMEDIAL PERFORMANCE" PROVISION; OSWER
*9360.0-13
01/01/81 RISHEL, H.L.. ET.AL./SCS
ENGINEERS ALBRECHT, O.W./MERL
01/01/83 MELVOLD, R.W./ROCKWELL
INTERNATIONAL MCCARTHY,
(K/13/87 OERR/ERD
04/06/87 OSWER
164
23
1005
1 INFORMATION ON DRINKING WATER ACTION LEVELS
04/19/88 FIELDS, JR., T./OSWER/ERD
17
-------
I'AI.I MO.
<>,vnv°2
- INDEX-
COMPENDIUM OF CERCIA RESPONSE
SELECTION GUIDANCE DOCUMENTS
Vol Title/ID Number
Date Authors
Super
No. Pages
•*•• Removal Action
11106
1 SUPERFUND REMOVAL PROCEDURES, REVISION #3; OSUER
#9360.0-038
inn/ 1 THE ROLE OF EXPEDITED RESPONSE ACTIONS (EPA) UNDER
SARA; OSUER #9560.0-15
1(108 2 GUIDANCE ON NON-NPL REMOVAL ACTIONS INVOLVING
NATIONALLY SIGNIFICANT Oft PRECEDENT SETTING
ISSUES; OSUER #9360.0-19
*** Secondary References ***
M1I12 ?6 INTERIM FINAL GUIDANCE ON REMOVAL ACTION LEVELS AT
CONTAMINATED DRINKING UATER SITES; OSUER
#9360.1-01
6IKM 32 REMOVAL COST MANAGEMENT MANUAL; OSUER #9360.0-028
"** RI/FS - General
?000 2 CASE STUDIES 1-23: REMEDIAL RESPONSE AT HAZARDOUS
UASTE SITES; EPA 540/2-B4/002B
2001 3 EPA GUIDE FOR MINIMIZING ADVERSE ENVIRONMENTAL
EFFECTS OF CLEANUP OF UNCONTROLLED HAZARDOUS-UASTE
SITES; EPA/600/8-85/008
2002 3 GUIDANCE FOR CONDUCTING REMEDIAL INVESTIGATIONS
AND FEASIBILITY STUDIES UNDER CERCLA; OSUER
#9355.3-01
02/01/88 OSUER/OERR
04/21/87 LONGEST, H.L./OERR
04/03/89 LONGEST, H.L./OERR
10/06/87 OSUER/OERR
04/01/88 OSUER/OERR
03/01/84 ORD/OEET/MERL OSUER/OERR
06/01/85 ENVIRONMENTAL RESEARCH
LABORATORY
10/01/88 OSUER/OERR
365
170
830
250
390
-------
I-AI.I MO.
(I//HJ/9?
-INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Wo vol Title/ID Nurtber
**** RI/FS - General
Date
Authors
2003
?005
?n(V>
?008
2009
2010
2011
2012
3 JOINT CORPS/EPA GUIDANCE; OSUER 09295.2-02
4 MODEL ING REMEDIAL ACTIONS AT UNCONTROLLED
HAZARDOUS WASTE SITES (VOl. I -IV); OSWER
09355.0-08
<• POLICY ON FLOOD PLAINS AND WETLAND ASSESSMENTS FOR
CERCLA ACTIONS; OSWER #9280.0 02
I- REMEDIAL RESPONSE AT HAZARDOUS WASTE SITES:
SUMMARY REPORT; EPA 540/2 -84/002 A
<; REVISED PROCEDURES FOR IMPLEMENTING OFF-SITE
RESPONSE ACTIONS; OSWER #9834.11
4 RI/FS IMPROVEMENTS; OSWER 09355.0-20
4 RI/FS IMPROVEMENTS FOLLOW-UP; OSWER 09355.3-05
4 SUPERFUNO FEDERAL-LEAD REMEDIAL PROJECT MANAGEMENT
HANDBOOK (DRAFT); OSWER 09355.1-1
5 SUPERFUNO REMEDIAL DESIGN AND REMEDIAL ACTION
GUIDANCE; OSWER 09355. 0-4A
5 SUPERFUMO STATE-LEAD REMEDIAL PROJECT MANAGEMENT
HANDBOOK; OSWER 09355.2-1
33 GETTING READY - SCOPING THE RI/FS [QUICK REFERENCE
FACT SHEET); OSUER 09355. 3-01FS1
06/24/83 OERR/PAS
04/01/85 BOUTWELL. S.H.,
ET.AL./ANDERSON-NICHOLS AND CO.
OSWER/OERR AMMON, D.C. AND
BORNWELL, JR.. T.O./HWERL
08/01/85 HEDEMAN, JR., W.N./OERR LUCERO.
G./OWPE
03/01/84 ORD/MERL
11/13/87 PORTER, J.W./OSWER
07/23/87 LONGEST, H.L./OERR
04/25/88 LONGEST, H.L./OERR
12/01/86 OERR
06/01/86 OERR
12/01/86 OERR
11/01/89 OSWER
Super
No. Pages
42
350
95
20
11
16
179
100
130
-------
I'Al.f MO.
- INDEX-
COMPENDIUM OF CERCLA RESPONSE
SELECTION GUIDANCE DOCUMEN1S
Vol Title/ID Number
Date Authors
Super
No. Pages
••*• RI/FS • General
?OU 33 GUIDANCE ON REMEDIAL ACTIONS FOR SUPERFUHD SITES
WITH PCB CONTAMINATION; OSUER *9355.4-01
33 GUIDE FOR CONDUCTING TREATABILITY STUDIES UNDER
CERCLA; INTERIM FINAL;; EPA/540/2-89/058
?016 33 MODEL STATEMENT OF WORK FOR A REMEDIAL
INVESTIGATION AND FEASIBILITY STUDY CONDUCTED BY
POTENTIALLY RESPONSIBLE PARTIES; OSUER t9835.8
33 RI/FS IMPROVEMENTS PHASE II, STREAMLINING
RECOMMENDATIONS; OSUER 09355.3-06
?OIB 33 iHt FEASIBILITY sruor - DEVELOPMENT AHD SCREENING
OF REMEDIAL ACTION ALTERNATIVES (QUICK REFERENCE
FACT SHEET); OSWER 09355.3-01FS3
-------
NO.
-INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
No Vol Title/ID Number
•••• RI/FS Rl Data Quality/Site I Waste Assessment
;i01 6 DATA QUALITY OBJECTIVES FOR REMEDIAL RESPONSE
ACTIVITIES: DEVELOPMENT PROCESS; OSUER #9355.0-78
710? 6 DATA QUALITY OBJECTIVES FOR REMEDIAL RESPONSE
ACTIVITIES: EXAMPLE SCENARIO: RI/FS ACTIVITIES AT
A SITE W/ CONTAMINATED SOILS AND GROUNOUATER;
OSUER #9355.0-78
Date Authors
03/01/87 COM FEDERAL PROGRAMS CORP.
OERR/OWPE
03/01/87 CDM FEDERAL PROGRAMS CORP.
OERR/OUPE
Super
No. Pages
150
120
7103
?105
2106
?107
?108
2109
6 DESIGN AND DEVELOPMENT OF A HAZARDOUS WASTE
REACTIVITY TESTING PROTOCOL; EPA-600/2-84-057
6 MUD SCREENING FOR ORGANIC CONTAMINANTS IN
SAMPLES FROM HAZARDOUS WASTE SITES
6 FIELD SCREENING METHODS CATALOG: USER'S GUIDE;
EPA/540/2-88/005
6 FIELD STANDARD OPERATING PROCEDURES MANUAL *4-SITE
ENTRY; OSUER #9285.2-01
7 FIELD STANDARD OPERATING PROCEDURES MANUAL #6-UORK
ZONES; OSUER #9285.2-04
7 FIELD STANDARD OPERATING PROCEDURES MANUAL «8 AIR
SURVEILLANCE; OSUER #9285.2-03
7 FIELD STANDARD OPERATING PROCEDURES MANUAL #9-SITE
SAFETY PLAN; OSUER #9285.2-05
7 GFOPHYSICAL METHODS FOR LOCATING ABANDONED WELLS;
H'A 600/4 84 065
02/01/84 WOLBACH. C.D., ET. AL./ACUREX
CORP. BARKLEY, N./MERL
04/02/86 ROFFMAN, H.K., ET. AL./NUS CORP.
CARTER, A./MICHIGAN DEPT. OF
NATURAL RESOURCES THOMAS, T./EPA
09/01/88 OERR/HSED
01/01/85 OERR/HRSD
04/01/85 OERR/HRSD
01/01/85 OERR/HSCD
04/01/85 OERR/HRSD
07/01/84 FRISCHKNECT, L.M., ET. AL./U.S.
GEOLOGICAL SURVEY VANEE,
150
11
90
19
24
26
211
-------
I'AC.I NO.
-INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
lint
No
?111
?11?
Vol Title/ID Nunfcer
RI/FS RI Data Quality/Site t Waste Assessment
7 GEOPHYSICAL TECHNIQUES FOR SENSING BURIED WASTES
AND WASTE MIGRATION; EPA-600/7-84/064
8 GUIDELINES AND SPECIFICATIONS FOR PREPARING
QUALITY ASSURANCE PROGRAM DOCUMENTATION
Date
Authors
06/01/84 BENSON, R.C., ET. AL./TECHNOS.
INC. VANEE, J.J./EMSL
06/01/87 ORD/OUALITY ASSURANCE MANAGEMENT
STAFF
Super
No. Pages
236
31
2113 8 LABORATORY DATA VALIDATION FUNCTIONAL GUIDELINES
FOR EVALUATING INORGANICS ANALYSES (DRAFT)
?114 8 tABORATORY DATA VALIDATION FUNCTIONAL GUIDELINES
FOR EVALUATING ORGANICS ANALYSES (DRAFT)
?I1S 8 PRACTICAL GUIDE FOR GROUND-WATER SAMPLING;
EPA/600/2-85/104
?11(S 8 SEDIMENT SAMPLING QUALITY ASSURANCE USER'S GUIDE;
EPA/600/4-85/048
?117 8 SOIL SAMPLING QUALITY ASSURANCE USER'S GUIDE; EPA
600/4-84/043
?118 9* TEST METHODS FOR EVALUATING SOLID WASTE.
LABORATORY MANUAL PHYSICAL/CHEMICAL METHODS, THIRD
EDITION (VOLUMES IA, IB, 1C, AND II)
2119 11 USER'S GUIDE TO THE CONTRACT LABORATORY PROGRAM;
OSWER 09240.0-1
07/01/88 EPA DATA REVIEW WORK GROUP
BLEYLER, R./VIAR AND CO./SAMPLE
MGMT. OFFICE/ HSED
02/01/88 BLEYLER, R./VIAR AND CO./SAMPLE
MGMT. OFFICE EPA DATA REVIEW
WORKGROUP HSED
09/01/85 BARCELONA, M.J., ET.AL./ILLINOIS
ST. WATER SURVEY SCALF,
M.R./ORD/ERL
07/01/85 BARTH, D.S. t STARKS. T.S./UNIV.
OF NEV, LAS VEGAS BROUN,
05/01/84 BARTH, D.S. t MASON, B.J./U. OF
NEVADA, LAS VEGAS BROWN,
K./ORD/EARD
11/01/86 OSWER
12/01/88 OERR/CLP SAMPLE MANAGEMENT
OFFICE
20
45
175
120
104
3000
220
-------
I'Ai.l NO. 7
IV/OV9?
One
-INDEX-
COMPENOIUM OF CERCLA RESPONSE
SELECTION GUIDANCE DOCUMENTS
No vol Title/ID Nuntoer
---- -T= = = = = = = = = = = = = = = = = = = = = = = = r = s:r = ««a««x*a« = x = = = = = = = = :i = = =
"•• Rl/fS • HI Data Quality/Site I Waste Assessment
*•* Secondary References ***
Sli?S 37 THE REMEDIAL INVESTIGATE - SITE CHARACTERI2ATION
AMD TREATABILITY STUDIES [QUICK REFERENCE FACT
SHEET); OSUER *9355.3-01FS2
**** RI/FS - Land Disposal Facility Technology
Date Authors
== ======== =========================
12 COVERS FOR UNCONTROLLED HAZARDOUS WASTE SITES;
EPA/540/2- 85/002
-V01 1J DESIGN. CONSTRUCTION, AND EVALUATION OF CLAY
LINERS FOR WASTE MANAGEMENT FACILITIES;
EPA/530/SW-86/007F
?/>(]? 13 EVALUATING COVER SYSTEMS FOR SOLID AND HAZARDOUS
WASTE; OSUER K9476.00-1
??03 13 GUIDANCE MANUAL FOR MINIMIZING POLLUTION FROM
WASTE DISPOSAL SITES; EPA-600/2-78-U2
2204 13 LAND DISPOSAL RESTRICTIONS
2?05 U LINING OF WASTE CONTAINMENT AND OTHER IMPOUNDMENT
FACILITIES; EPA/600/2-88/052
?206 15 LINING OF WASTE IMPOUNDMENT AND DISPOSAL
FACILITIES; OSWER 09480.00-4
15 PROCEDURES FOR MODELING FLOW THROUGH CLAY LINERS
10 DETERMINE REQUIRED LINER THICKNESS (DRAFT);
OSUfR »9480.00 90
Super
No. Pages
11/01/89 OSWER
09/01/85 McANENY. C.C.. ET. Al./U.S.
COE/WES HOUTHOOFD, J.M./HWERL
11/01/88 GOLDMAN, J.L., ET. AL./HUS
ROULIER, M.H./RREL
09/01/82 LUTTON, R.J./U.S.A. COE/WES
LANDRETH, R.E./MERL
08/01/78 TOLMAN, A.L., ET. AL./A.W.
MARTIN ASSOCIATES, INC. SANNING.
08/11/87 LONGEST, H.L./OERR LUCERO,
09/01/88 MATRECON, INC. LANDRETH,
R./ORD/RISK REDUCTION
ENGINEERING LAB
03/01/83 LANDRETH. R./MERL
01/01/W OSW
500
58
83
23
950
480
145
-------
IA(,| NO. 8
-INDEX
COMPENDIUM OF CERCLA RESPONSE
Hoc
Wo
n
??13
22K
?215
is TECHNICAL GUIDANCE DOCUMENT: CONSTRUCTION QUALITY
ASSURANCE FOR HAZARDOUS WASTE LAND DISPOSAL
FACILITIES; OSWEH #9472.003
15 TREATMENT OF REACTIVE WASTES AT HAZARDOUS WASTE
LANDFILLS: PROJECT SUMMARY; EPA/600/S2-83/118
33 APPLICABILITY OF LAND DISPOSAL RESTRICTIONS TO
RCRA AND CERCLA GROUND WATER TREATMENT REINJECTION
SUPERFUND MANAGEMENT REVIEW: RECOMMENDATION
NO. 26; OSWER 09234.1-06
33 SUPERFUND LDR GUIDE #1 OVERVIEW OF RCRA LAND
DISPOSAL RESTRICTIONS (LDR»); OSWER 09347. 3-01FS
33 SUPERFUND LOR GUIDE *2 COMPLYING WITH THE
CALIFORNIA LIST RESTRICTIONS UNDER LAND DISPOSAL
RESTRICTIONS (LDRs); OSWER *9347.3-02FS
33 SUPERFUND LDR GUIDE #3 TREATMENT STANDARDS AND
MINIMUM TECHNOLOGY REQUIREMENTS UNDER LAND
DISPOSAL RESTRICTIONS (LDRs); OSWER #9347.3-03FS
SELECTION GUIDANCE DOCUMENTS
Date Authors
07/01/82 EPA
05/01/85 MURPHY. W.I. GILBERT, P.A.
08/07/86 WEDOLE, B.R./PERMITS AND STATE
PROGRAMS OIV.
10/01/86 HERRMANN,J.G./HWERL/LANO
POLLUTION CONTROL DIV./ OSWER
01/01/84 SHOOTER,D. ET.AL./ARTHUR D.
LITTLE, INC. LANDRETH, R./MERl
12/27/89 CLAY, O.R./OWSER
07/01/89 OERR
07/01/89 OERR
07/01/89 OERR
Super
Ho. Pages
===== ==s=s
30
38
88
-------
I »l.l NO 9
H.VIH/9?
-INDEX-
COHPEMD1UM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
No Vol Title/ID Number
--- - -•=•? = = = = = = =====rsTssrr5:r = = = s»saes«
•••• Rl/fS Land Disposal Facility Technology
,V17 33 SUPER FUND LDR GUIDE *4 COMPLYING WITH THE HAMMER
RESTRICTIONS UNDER LAND DISPOSAL RESTRICTIONS
(LDRs); OSUER »9347.3-04FS
33 SUPERFUND LDR GUIDE *5 DETERMINING WHEN LAND
DISPOSAL RESTRICTIONS (LDRs) ARE APPLICABLE TO
CERCLA RESPONSE ACTIONS; OSUER #9347.3-05FS
??19 33 SUPERFUND LDR GUIDE #6A OBTAINING A SOIL AND
DEBRIS TREATABILITY VARIANCE FOR REMEDIAL ACTIONS;
OSWtR 19347. 3-06FS
35 SUPERFUND LDR GUIDE 07 DETERMINING WHEN LAND
DISPOSAL RESTRICTIONS (LDRs) ARE RELEVANT AND
APPROPRIATE TO CERCLA RESPONSE ACTIONS; OSUER
*9347.3-08FS
"** Secondary References ***
25 APPLICABILITY OF THE HSUA MINIMUM TECHNICAL
REQUIREMENTS RESPECTING LINERS AND LEACHATE
COLLECTION SYSTEMS; OSWER 19480.01(85)
RI/FS - Other Technologies
16 A COMPENDIUM OF TECHNOLOGIES USED IN THE TREATMENT
OF HAZARDOUS WASTES; EPA/625/8-87/014
16 CARBON ABSORPTION ISOTHERMS FOR TOXIC ORGANICS;
EPA/600/8-80-023
3000
2300
?501
Date Authors
Super
No. Pages
07/01/89 OERR
07/01/89 OERR
07/01/89 OERR
12/01/89 OERR
04/01/85 SKINNER, J./OSU
09/01/87 ORD/CERI
04/01/80 DOBBS, R.A./MERL COHEN,
J.M./MERL
49
321
-------
f'AU NO. 10
fl,>/OV92
-INDEX-
COMPENDIUM OF CERCLA RESPONSE
SELECTION GUIDANCE DOCUMENTS
Doc
No Vol Title/10 Number
~-~~ --- ===-==================r====x=sa=aaa*==============
•••• RI/FS Other Technologies
?J02 17 ENGINEERING HANDBOOK FOR HAZARDOUS WASTE
INCINERATION; OSUER #9488.00-5
2503 17 EPA GUIDE FOR IDENTIFYING CLEANUP ALTERNATIVES AT
HAZARDOUS-WASTE SITES AMD SPILLS: BIOLOGICAL
TREATMENT; EPA-600/3-83-063
?504 17 EPA GUIDE FOR INFECTIOUS WASTE MANAGEMENT; OSWER
#9410.00-2
Date
Authors
09/01/81 BONNER, T.A., ET. AL./MONSANTO
RESEARCH CORP. OBERACKER,
/ / PACIFIC NORTHWEST LABORATORY
RANIERE, L.C./CORVALLIS
ENVIRONMENTAL RESEARCH LAB
05/01/86 OSWER/OSW
Super
No. Pages
445
120
75
17 GUIDANCE DOCUMENT FOR CLEANUP OF SURFACE
IMPOUNDMENT SITES; OSWER #9380.0-06
?306 17 GUIDANCE DOCUMENT FOR CLEANUP OF SURFACE TANK AND
DRUM SITES; OSWER #9380.0-03
2)07 18 HANDBOOK FOR EVALUATING REMEDIAL ACTION TECHNOLOGY
PLANS; EPA-600/2-83-076
2308 18 HANDBOOK FOR STABILIZATION/SOLIDIFICATION OF
HAZARDOUS WASTE; EPA/540/2-86-001
2509 19 HANDBOOK REMEDIAL ACTION AT WASTE DISPOSAL SITES
(REVISED); EPA/625/6-85/006
2510 20 LEACHATE PLUME MANAGEMENT; EPA/540/2-85/004
20 MOBILE TREATMENT TECHNOLOGIES FOR SUPERFUND
WASTES; EPA/540/2-86-003F
06/01/86 COH/WOODWARD-CLYDE/ROY F. WESTON
BARTH, E./OERR
05/28/85 CDM/WOODWARD-CLYDE/ROY F.
WESTON/C.C. JOHNSON BARTH, E.
AND BIXLER, B./OERR
08/01/83 EHRENFELD, J. AND BASS.
J./ARTHUR D. LITTLE INC. PAHREN,
06/01/86 CULL INANE JR., M.J. ET. AL./U.S.
COE/WES HOUTHOOFD,
10/01/85 ORD/HUERL/ OSWER/OERR
11/01/85 REPO, E. AND KUFS, C./JRB
ASSOCIATES BARKLEY, N./EPA
09/01/86 CAMP, DRESSER, AND MCKEE INC.
GALER, L.D./HRSD
39
135
439
125
560
590
130
-------
l'A(,f NO. 11
1)2/03/92
-INDEX-
COMPENDIUM OF CERCLA RESPONSE
Doc
No Vot Title/10 Nuifcer
**»* RI/FS • Other Technologies
2312 21 PRACTICAL GUIDE-TRIAL BURNS FOR HAZARDOUS WASTE
INCINERATORS; EPA/600/2-86/050
2513 21 PRACTICAL GUIDE-TRIAL BURNS FOR HAZARDOUS WASTE
INCINERATORS. PROJECT SUMMARY; EPA/600/S2-86/050
2314 21 PROHIBITION ON THE PLACEMENT OF BULK LIQUID
HAZARDOUS WASTE IN LANDFILLS-STATUTORY
INTERPRETIVE 'GUIDANCE; OSWER *9487.00-2A
21 REVIEW Of IN PLACE TREATMENT TECHNIQUES FOR
CONTAMINATED SURFACE SOILS-VOL. 2: BACKGROUND
INFORMAIION FOR IN-SITU TREATMENT;
EPA 540/2 -84- 003b
?316 21 REVIEW OF IN-PLACE TREATMENT TECHNIQUES FOR
CONTAMINATED SURFACE SOILS-VOL. 1: TECHNICAL
EVALUATION; EPA/540/2-84-0038
2317 22 SLURRY TRENCH CONSTRUCTION FOR POLLUTION MIGRATION
CONTROL; EPA/540/2-84-001
2318 22 SYSTEMS TO ACCELERATE IN SITU STABILIZATION OF
WASTE DEPOSITS; EPA 540/2-86/002
2319 22 TECHNOLOGY SCREENING GUIDE FOR TREATMENT OF CERCLA
SOILS AND SLUDGES; EPA 540/2-88/004
2320 22 TREATMENT TECHNOLOGY BRIEFS: ALTERNATIVES TO
HAZARDOUS WASTE LANDFILLS; EPA/600/8-86/017
SELECTION GUIDANCE DOCUMENTS
Date Authors
Super
No. Pages
04/01/86 GORMAN, P., ET. AL./MIDWEST
RESEARCH INSTITUTE OBERACKER,
D.A./HWERL
07/01/86 GORMOtt. P.. ET.AL./MIDWEST
RESEARCH INSTITUTE OBERACKER,
06/11/86 OSWER/OSW
11/01/84 SIMS, R.C., ET.AL./JRB
ASSOCIATES BARKLEY, N./MERL
09/19/84 OSWER/OERR/ ORD/MERL
02/01/84 OERR/ ORD/MERL
09/01/86 AMDURER, M., ET.AL./ENVIROSPHERE
CO. GRUBE, W./HWERL
09/01/88 OSWER/OERR
07/01/86 HWERl
63
35
350
165
220
285
130
35
-------
CAM NO. 12
(V/03/92
-INDEX-
COMPENDIUH OF CERCLA RESPONSE
Vol Title/ID Number
Doc
No
•••* Rl/fS - Other Technologies
?121 33
SELECTION GUIDANCE DOCUMENTS
Date Authors
ADVANCING THE USE OF TREATMENT TECHNOLOGIES FOR
SUPERFUND REMEDIES; OSUER 1*9355.0-26
?J?2 33 GUIDE TO TREATMENT TECHNOLOGIES FOR HAZARDOUS
WASTES AT SUPERFUND SITES; EPA/540/2-89/052
2323 33 INNOVATIVE TECHNOLOGT - BEST SOLVENT EXTRACTION
PROCESS (QUICK REFERENCE FACT SHEET]; OSUER
09200. 5-253FS
2324 33 INNOVATIVE TECHNOLOGY - GLYCOLATE DEHALOGENATION
(QUICK REFERENCE FACT SHEET]; OSUER *9200.5-254FS
33 INNOVATIVE TECHNOLOGY - IN-SITU VITRIFICATION
(QUICK REFERENCE FACT SHEET); OSUER (K9200.5-251FS
2326 33 INNOVATIVE TECHNOLOGY - SLURRY -PHASE
BICOEGRADATION [QUICK REFERENCE FACT SHEET);
OSUER (K9200.5-252FS
2327 33 INNOVATIVE TECHNOLOGY - SOIL WASHING (QUICK
REFERENCE FACT SHEET]; OSUER f9200.5-250FS
2328 33 TECHNOLOGICAL APPROACHES TO THE CLEANUP OF
RAOIOLOG1CALLY CONTAMINATED SUPER FUND SITES;
EPA/540/2-M/002
**** RI/FS - Ground-U»ter Monitoring t Protection
2400 23 CRITERIA FOR IDENTIFYING AREAS OF VULNERABLE
HYDROGEOLOGY UNDER RCRA: STATUTORY INTERPRETIVE
GUIDANCE; OSWER #94 72 . 00 - 2A
Super
No. Pages
02/21/89 OERR/OUPE
03/01/89 RREL
11/01/89 OSUER
11/01/69 OSUER
11/01/89 OSUER
11/01/89 OSUER
11/01/89 OSWER
08/01/88 ORD
07/01/86 OSUER/OSU
26
120
950
-------
<•»(.( MO. 13
-INDEX
COMPENDIUM OF CERCLA RESPONSE
SELECTION GUIDANCE DOCUMENTS
Dot
M«
,>401
?/.f)2
Vol Title/ID Number
~-~ -~== = = = - = s = = === = ====:= = :K = i::5 = = *xe*aE* = = « = c = = = :s = = = = = = r =
BI/FS - Ground-Water Monitoring t Protection
24 FINAL RCRA COMPREHENSIVE GROUND-WATER MONITORING
EVALUATION (CME) GUIDANCE DOCUMENT; OSUER *9950,2
24 GROUND-WATER MONITORING AT CLEAN-CLOSING SURFACE
IMPOUNDMENT AND WASTE PILE UNITS; OSWER
#9476. 00- H
Date Authors
2 = ======== s = r = = rsr= = = = = = ;::
Super
No. Pages
12/19/86 LUCERO. G.A./OUPE
03/31/88 PORTER, J.U./OSWER
55
?'.H3 24 GROUND-WATER PROTECTION STRATEGY;
EPA/440/6-84-002
?UV.
A06
?4D8
2409
?i. GUIDELINES FOR GROUND-WATER CLASSIFICATION UNDER
IHE EPA GROUND-WATER PROTECTION STRATEGY (DRAFT)
24 OPERATION AND MAINTENANCE INSPECTION GUIDE (RCRA
GROUND-WATER MONITORING SYSTEMS); OSWER 09950-3
24 PROTOCOL FOR GROUND-WATER EVALUATIONS; OSWER
#9080.0-1
25 RCRA GROUND-WATER MONITORING TECHNICAL ENFORCEMENT
GUIDANCE DOCUMENT (TEGD); OSUER §9950.1
25 RCRA GROUND-WATER MONITORING TECHNICAL ENFORCEMENT
GUIDANCE DOCUMENT, TEGO: EXECUTIVE SUMMARY;
OSWER »9950.1-a
34 A GUIDE ON REMEDIAL ACTIONS FOR CONTAMINATED
GROUND WATER [QUICK REFERENCE FACT SHEET]; OSWER
#9283.1-2FS
54 CONSIDERATIONS IN GROUND WATER REMEDIATION AT
SUPfRFUND SITES; OSWER #9355.4-03
08/01/84 OFFICE OF GROUND-WATER
PROTECTION
12/01/86 OFFICE OF GROUND-WATER
PROTECTION
03/30/88 OSWER/OWPE/RCRA ENFORCEMENT
DIVISION
09/01/86 HAZARDOUS WASTE GROUND WATER
TASK FORCE
09/01/86 EPA
07/01/87 LUCERO, G.A./OWPE
04/01/89 OSWER
10/18/89 OSWER
65
600
50
200
270
-------
TAI.f NO. U
'WOJ/92
-1NDEX-
COMPENOIUM OF CERCLA RESPONSE
(me
No Vol Title/10 Nuntoer
- - -- - - ~ = = = = = = = = = = = w = = = ^r = = = = = = 3ix=*3aac«ces = = 3 = = = = = = = = = = = =
"" RI/FS - Ground-Water Monitoring I Protection
34 DETERMINING SOIL RESPONSE ACTION LEVELS BASED ON
POTENTIAL CONTAMINANT MIGRATION TO GROUNDUATER: A
COMPENDIUM OF EXAMPLES; EPA/540/2-89/057
34 EVALUATION OF GROUND-WATER EXTRACTION
REMEDIES-VOLUME 1 SUMMARY REPORT;
EPA/540/2-89/054
2413 34 GUIDANCE ON REMEDIAL ACTIONS FOR CONTAMINATED
GROUND WATER AT SUPER FUND SITES; OSWER #9283.1-2
•*• Secondary References ***
5014 34 CONTROL OF AIR EMISSIONS FROM SUPER FUND AIR
STRIPPERS AT SUPERFUND GROUNDWATER SITES; OSWER
#9533.0-28
SELECTION GUIDANCE DOCUMENTS
Date Authors
10/01/89 OERR
09/01/69 OERR
12/01/88 OERR
06/15/89 OSWER/OAOPS
Super
No. Pages
===== ===== x=s==
144
60
125
**•* ARARs
3000 25 APPLICABILITY OF THE HSUA MINIMUM TECHNICAL
REQUIREMENTS RESPECTING LINERS AND LEACHATE
COLLECTION SYSTEMS; OSWER 09480.01(85)
3001 25 CERCLA COMPLIANCE WITH OTHER ENVIRONMENTAL
STATUTES; OSWER #9234.0-2
3002 25 CERCLA COMPLIANCE WITH OTHER LAWS MANUAL (DRAFT);
OSWER #9234.1-01
3003 25 EPA'S IMPLEMENTATION OF THE SUPERFUND AMENDMENTS
AND REAUTHOR1ZATION ACT OF 1986
04/01/85 SKINNER, J./OSW
10/02/85 PORTER, J.W./OSWER
08/08/88 OERR
05/21/87 THOMAS, L. M./EPA
19
245
-------
PAW NO.
(I7/OV92
doc
No Vol
*•** ARARs
5004 25
3005 25
3006 34
5007 J4
3008 J4
5009 34
M110 34
34
Titte/ID Hunter
- INDEX-
COMPEHDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Date Authors
Super
No. Pag«s
= = ===== =arss
5012 34
GUIDANCE MANUAL ON THE RCRA REGULATION OF RECYCLED
HAZARDOUS WASTES; OSUER 09441. 00-2
INTERIM RCRA/CERCLA GUIDANCE ON MON- CONTIGUOUS
SITES AND ON-SITE MANAGEMENT OF WASTE AND
TREATMENT RESIDUE; OSWER «9347.0-1
ARARs Q'S t A'S (QUICK REFERENCE FACT SHEET);
OSUER *9234.2-01FS
ARARs SHORT GUIDANCE QUARTERLY REPORT [QUICK
REFERENCE FACT SHEET]; OSUER «9234. J-OOI
ARARs SHORT GUIDANCE QUARTERLY REPORT [QUICK
REFERENCE FACT SHEET); OSUER (V9234. 3-001
CERCLA COMPLIANCE UITH OTHER LAUS MANUAL - CERCLA
COMPLIANCE UITH STATE REQUIREMENTS (QUICK
REFERENCE FACT SHEET); OSWER 09234. 2-05FS
CERCLA COMPLIANCE UITH OTHER LAUS MANUAL - CERCLA
COMPLIANCE UITH THE CUA AND SDUA (QUICK REFERENCE
FACT SHEET); OSWER (T9234.2-06FS
CERCLA COMPLIANCE UITH OTHER LAUS MANUAL -
OVERVIEW OF ARARs - FOCUS ON ARAR WAIVERS (QUICK
REFERENCE FACT SHEET); OSWER 09234. 2-03FS
CERCLA COMPLIANCE UITH OTHER LAUS MANUAL - SUMMARY
OF PART II - CAA. TSCA, AND OTHER STATUTES [QUICK
REFERENCE FACT SHEET); OSUER 09234.2-07FS
03/01/86 INDUSTRIAL ECONOMICS, INC. OSU
03/27/86 PORTER, J.U./OSUER
05/01/89 OSWER
12/01/89 OSUER
03/01/90 OERR/OPM
12/01/89 OSUER
02/01/90 OSWER
12/01/89 OSWER
04/01/90 OERR/OPM
350
-------
I'AOf MO. 16
(WOV9?
- INDEX -
COMPENDIUM OF CERCL* RESPONSE
foe
No
**** ARARs
Vol Title/ID Nunfcer
SELECTION GUIDANCE DOCUMENTS
Dat« Authors
Super
No. Pages
5013 34 CERCLA COMPLIANCE WITH OTHER LAWS MANUAL PART II:
CLEAN AIR ACT AMD OTHER ENVIRONMENTAL STATUTES AND
STATE REQUIREMENTS; OSUER #9234.1-02
50 K 34 CONTROL OF AIR EMISSIONS FROM SUPER FUND AIR
STRIPPERS AT SUPER FUND GROUNDUATER SITES; OSWER
•9533.0-28
3015 34 INTERIM GUIDANCE ON ESTABLISHING SOIL LEAD CLEANUP
LEVELS AT SUPERFUND SJTES; OSWER #9355.4-02
5016 34 IA*D DISPOSAL RESTRICTIONS AS RELEVANT AND
APPROPRIATE REQUIREMENTS FOR CERCLA CONTAMINATED
SOU AND DEBRIS; OSUER £9347.2-01
3017 34 RCRA ARARs: FOCUS ON CLOSURE REQUIREMENTS [QUICK
REFERENCE FACT SHEET); OSUER 09234. 2- 04 FS
3018 34 TREATMENT STANDARDS AND MINIMUM TECHNOLOGY
REQUIREMENTS UNDER LAND DISPOSAL RESTRICTIONS
(LOR); OSWER #9347.3-03FS
2014
??08
••• Secondary References ***
33 GUIDANCE ON REMEDIAL ACTIONS FOR SUPERFUND SITES
WITH PCB CONTAMINATION; OSWER f9355.4-01
15 RCRA GUIDANCE DOCUMENT: LANDFILL DESIGN LINER
SYSTEMS AND FINAL COVER (DRAFT)
35 APPLICABILITY OF LAND DISPOSAL RESTRICTIONS TO
RCRA AND CERCLA GROUND WATER TREATMENT RE INJECT ION
SUPEAFUNO MANAGEMENT REVIEW: RECOMMENDATION
MU ^6. OSUli »92J4.1 06
08/01/89 OERR
06/15/89 OSUER/OAOPS
09/01/89 OERR
06/05/89 OERH
10/01/89 OSWER
07/01/89 OSWER
175
08/01/90 OERR
07/01/82 EPA
12/27/89 CLAY, D.R./OWSER
ISO
30
-------
PAGF NO. 17
02/OV92
for
Ho
- INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Vol Title/ID Nunfcer Date Authors
= = : = = = = = = = = = = = = z = = = = = = = = = = = «3s:x*s««K*3r»*s = = = = = = = = = = = :: = = s ======== = = = = = = = =
ARARs
*** Secondary References cont. ***
7218 33 SUPER FUND LDR GUIDE *5 DETERMINING WHEN LAND 07/01/89 OERR
DISPOSAL RESTRICTIONS (LDRs) ARE APPLICABLE TO
CERCLA RESPONSE ACTIONS; OSWER 09347.3-O5FS
2219 33 SUPERFUND LDR GUIDE «6A OBTAINING A SOIL AND 07/01/89 OERR
DEBRIS TREATABILITY VARIANCE FOR REMEDIAL ACTIONS;
OSWER 09347.3-06FS
Super
No. Pages
====3 z==r*
22?0 3} SUPERFUND LDR GUIDE #7 DETERMINING WHEN LAND
DISPOSAL RESTRICTIONS (LDRs) ARE RELEVANT AND
APPROPRIATE TO CERCLA RESPONSE ACTIONS; OSUER
»9347.3-OBFS
2400 23 CRITERIA FOR IDENTIFYING AREAS OF VULNERABLE
HYDROGEOLOGY UNDER RCRA: STATUTORY INTERPRETIVE
GUIDANCE; OSUER K9A77.00-2A
2401 24 FINAL RCRA COMPREHENSIVE GROUND-WATER MONITORING
EVALUATION (CME) GUIDANCE DOCUMENT; OSWER f9950.2
2403 24 OPERATION AND MAINTENANCE INSPECTION GUIDE (RCRA
GROUND-WATER MONITORING SYSTEMS); OSWER 09950-3
2407 25 RCRA GROUND-WATER MONITORING TECHNICAL ENFORCEMENT
GUIDANCE DOCUMENT(TEGD); OSWER f9950.1
2408 25 RCRA GROUND-WATER MONITORING TECHNICAL ENFORCEMENT
GUIDANCE DOCUMENT, TEGD: EXECUTIVE SUMMARY;
OSWER #9950.1-a
12/01/89 OERR
07/01/86 OSWER/OSW
12/19/86 LUCERO, G.A./OWPE
03/30/88 OSWER/OWPE/RCRA ENFORCEMENT
DIVISION
09/01/86 EPA
07/01/87 LUCERO, G.A./OWPE
950
55
50
270
-------
I'AM NO. 18
- INDEX -
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Dor
Mo Vol Title/10 Nuntoer Date Authors
•*** ARARs
Super
No. Pages
••• Secondary References coot. **•
9001 32 RCRA/CERCLA DECISIONS MADE ON REMEDY SELECTION
•"• Water Qua I ity
06/24/85 KILPATRICK, M./COHPL1ANCE
BRANCH, OUPE
4.000 26 ALTERNATE CONCENTRATION LIMIT GUIDANCE PART 1, ACL 07/01/87 OSU/UMO
POLICY AND INFORMATION REQUIREMENTS; OSUER
#9481.00-6C
4001 26 GUIDANCE DOCUMENT FOR PROVIDING ALTERNATE WATER
SUPPLIES; OSWER #9355.3-03
02/01/88 OERR
4(102 26 INTERIM FINAL GUIDANCE ON REMOVAL ACTION LEVELS AT 10/06/87 OSUER/OCRS
CONTAMINATED DRINKING WATER SITES; OSUER
#9360.1-01
4003 26 QUALITY CRITERIA FO* WATER 1986; EPA/440/5-86-001 05/01/87 OFFICE OF WATER REGULATIONS AND
STANDARDS
*•* Secondary References ***
1005 1 INFORMATION ON DRINKING WATER ACTION LEVELS
2301 16 CARBON ABSORPTION ISOTHERMS FOR TOXIC ORGANICS;
EPA/600/8-80-023
**** Risk Assessment
SOnO 27 ATSDR HEALTH ASSESSMENTS ON NPL SITES (DRAFT)
04/19/88 FIELDS. JR., T./OSWER/ERD
04/01/80 DOBBS, R.A./MERL COHEN,
J.M./MERL
06/16/86 DEPT. OF HEALTH AND HUMAN
SERVICES/ATSOR
124
64
325
17
521
14
-------
!•»(,( NO. 19
fW
-------
r»l.l NO. ?0
-INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
No Vol Title/ID Number
•*•• Risk Assessment
Date Authors
Super
No. Pages
==rax vxxx*
MHO 51 INTERIM POIICY FOR ASSESSING RISKS OF "DIOXINS"
OTHER THAN 2,3,7.8-TCDO
Milt 31 PUBLIC HEALTH RISK EVAUATtOH DATABASE (PHRED)
tUSER'S MANUAL AND TUO DISKETTES CONTAINING THE
DBASEIM PLUS SYSTEM ARE INCLUDED]
01/07/87 THOMAS, L.M./EPA
09/16/88 OERR/TOXICS INTEGRATION BRANCH
50
18
',nt? 31 ROLE OF ACUTE TOXICITY BIQASSAYS IN THE REMEDIAL
ACTION PROCESS AT HAZARDOUS UASTE SITES;
EPA/600/8-87/OU
08/01/87 ATHEY, L.A., ET.AL./PACIFIC
NORTHWEST LABORATORY MILLER.
U.E./CORVALLIS ENVIRONMENTAL
RESEARCH LAB
106
Mill 31 SUPERFUND EXPOSURE ASSESSMENT MANUAL; OSUER
•9285.5-1
04/01/88 OERR
SOU 31 SUPERFUND PUBLIC HEALTH EVALUATION MANUAL; OSWER 10/01/86 OERR OSWER
160
500
Sim 31 TOXICOLOGY HANDBOOK; OSUER 4(9850.2
SD16 35 AIR/SUPERFUNO NATIONAL TECHNICAL GUIDANCE STUDY
SERIES VOLUME I - APPLICATION OF AIR PATHWAY
ANALYSES FOR SUPERFUND ACTIVITIES
SOU 35 AIR/SUPERFUNO NATIONAL TECHNICAL GUIDANCE STUDY
SERIES VOLUME II - ESTIMATION OF BASELINE AIR
EMISSIONS AT SUPERFUND SITES; EPA/450/1-89/002
MMfl 36 AIR/SUPERFUND NAUONAL TECHNICAL GUIDANCE STUDY
SERIES VOLUME III - ESTIMATION OF AIR EMISSIONS
FROM CIEANUP ACTIVITIES AT SUPERFUND SITES;
I PA/450/1 89/003
08/01/85 LIFE SYSTEMS, INC. /TYBURSKI,
T.E./OWPE
12/01/88 EPA REGION III/NUS CORP.
01/01/89 OAOPS/RADIAN CORP.
01/01/89 OAOPS/RADIAN CORP
126
90
235
230
-------
F'AGf NO.
02/03/92
Ooc
No Vol
***• Risk
5019 36
21
- INDEX-
COMPENDIUM OF CERCLA RESPONSE
Title/ID Nmtwr
= = = ssaca:xx = aBE!;s =
Assessment
SELECT ION GUIDANCE DOCUMENTS
Date Authors
AIR/SUPERFUNO NAT'L TECHNICAL GUIDANCE STUDY
SERIES - VOLUME IV PROCEDURES FOR DISPERSION
MODELING AND AIR MONITORING FOR AIR PATHWAY
ANALYSES (DRAFT)
5020 37 EXPOSURE FACTORS HANDBOOK; EPA/600/8-89/043
5021 37 GUIDANCE FOR SOIL INGEST ION RATES; OSUER 09850.4
5022 37 OPTIONS FOR INTERIM POLICY FOR SOIL INGEST I ON
ASSUMPTIONS
5023 37 RISK ASSESSMENT GUIDANCE FOR SUPERFUND, VOLUME I,
HUMAN HEALTH EVALUATION MANUAL; OSUER
»9285.7-01a
5024 37 RISK ASSESSMENT GUIDANCE FOR SUPERFUND, VOLUME II,
ENVIRONMENTAL EVALUATION MANUAL; EPA/540/1-89/001
5025 37 THE REMEDIAL INVESTIGATION - SITE CHARACTERIZATION
AND TREATABILITY STUDIES (QUICK REFERENCE FACT
SHEET); OSWER *9355.3-01FS2
5026 37 TOXICOLOGICAL PROFILE FOR 1. 4 - DICHLOROBENZENE
5027 37 TOXICOLOGICAL PROFILE FOR 2. 3, 7. 8
TETRACHLORO-DIBENZO-P-DIOXIN
5028 37 TOXICOLOGICAL PROFILE FOR ARSENIC
S029 38 TOXICOLOGICAL PROFILE FOR BENZENE
12/01/88 EPA REGION llt/NUS CORP.
07/01/89 OHEA
01/27/89 OSWER
10/04/88 EPA
09/29/89 OERR
03/01/89 OERR
11/01/89 OSWER
01/01/89 ATSOR
06/01/89 ATSOR
03/01/89 ATSOR
05/01/89 ATSOR
No. Pages
295
285
3
5
290
57
95
129
125
173
-------
r»r,f wo. 22
-INDEX-
COMPENDIUM OF CERCLA RESPONSE
Doc
NO Vot Title/ID Muifcer
- ~~~ •=-- = = = = 33 = = aE3ta = = = = = = = E = nae««*»*»"»«»»«»»ern*3KZ = === = =
*•** Risk Assessment
5030 38 TOXICOLOGICAL PROFILE FOR BERYLLIUM
5031 38 TOXICOLOGICAL PROFILE FOR CADMIUM
5032 3B TOXICOLOGICAL PROFILE FOR CHLOROFORM
5033 38 TOXICOLOGICAL PROFILE FOR CHROMIUM
5034 38 TOXICOLOGICAL PROFILE FOR
DI(2-ETHrLHEXYL)PHTHALATE
5035 39 TOXICOiOGICAL PROFILE FOR HEPTACHLOR/HEPTACHLOR
E POX IDE
5036 39 TOXICOLOGICAL PROFILE FOR METHYLENE CHLORIDE
5037 39 TOXICOLOGICAL PROFILE FOR N-NITRO SOOIPHENYLAMINE
5038 39 TOXICOLOGICAL PROFILE FOR NICKEL
5039 39 TOXICOLOGICAL PROFILE FOR SELECTED PCBs
(AROCLOR-1260, -1254. -12*8, -12*2, -1232. -1221.
AND -1016}
5040 39 TOXICOtOGICAL PROFILE FOR TRICHLOROETHYLEME
5041 39 TOXICOLOGICAL PROFILE FOR VINYL CHLORIDE
*** Secondary References •**
2015 33 GUIDE FOR CONDUCTING TREATABILITY STUDIES UNDER
CERCLA; INTERIM FINAL;; EPA/540/2- 89/058
SELECTION GUIDANCE DOCUMENTS
Date
12/01/88
03/01/89
01/01/89
07/01/89
04/01/89
04/01/89
04/01/89
12/01/88
12/01/88
06/01/89
10/01/89
08/01/89
Super
Authors No.
»«*================================ ===ax
ATSDR
ATSDR
ATSOR
ATSOR
ATSDR
ATSOR
ATSDR
ATSDR
ATSOR
ATSOR
ATSOR
ATSOR
Pages
cxcxx
91
107
115
135
119
109
111
65
111
135
139
107
12/01/89 ORD/06RR
118
-------
PACE NO. 23
07/03/92
-INDEX-
COMPENOIUM OF CERCIA RESPONSE
Doc
No Vol Title/ID Hunter
•••• Risk Assessment
*•* Secondary References cont. •**
2020 33 TREATABILITY STUDIES UNDER CERCLA: AN OVERVIEW
(QUICK REFERENCE FACT SHEET]; OSWER f9380.3-02FS
8000 32 ENDANGERMENT ASSESSMENT GUIDANCE; OSUER f9850.0-1
"•• Cost Analysis
6000 32 REMEDIAL ACTION COSTING PROCEDURES MANUAL
6001 32 REMOVAL COST MANAGEMENT MANUAL; OSUER 09360.0-02B
*** Secondary References •••
1001 1 COSTS OF REMEDIAL RESPONSE ACTIONS AT UNCONTROLLED
HAZARDOUS WASTE SITES
1003 1 ENVIRONMENTAL REVIEW REQUIREMENTS FOR REMOVAL
ACTIONS; OSUER «9318.0-05
**" Community Relations
7000 32 COMMUNITY RELATIONS IN SUPERFUND: A HANDBOOK
(INTERIM VERSION); OSWER 09230.0-03B
**** Enforcement
8000 32 ENOANGEHMENT ASSESSMENT GUIDANCE; OSUER H9850.0-1
SELECTION GUIDANCE DOCUMENTS
Date Authors
Super
No. Pages
12/01/89 OSWER
11/22/85 PORTER, J.W./OSWER
10/OV87 JRB ASSOCIATES/CH2M HILL
ORD/MERL OSUER/OERR
04/01/88 OSUER/OERR
01/01/81 RISHEL. H.L.. ET.AL./SCS
ENGINEERS ALBRECHT, O.U./MERL
04/13/87 OERR/ERD
06/01/88 OERR
11/22/85 PORTER. J.U./OSWER
11
56
170
164
188
11
-------
CAM MO. 24
IW05/92
-INDEX-
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTS
Doc
No Vol Title/ID Nuifcer
~~~- ~-- = = = = = = x = = = = = = = r =
•*•• Enforcement
Date
Authors
Super
No. Pages
8001 32 INTERIM GUIDANCE ON POTENTIALLY RESPONSIBLE PARTY
PARTICIPATION IN REMEDIAL INVESTIGATIONS AND
FEASIBILITY STUDIES; OSUER f9835.U
*** Secondary References *••
2016 33 MODEL STATEMENT OF WORK FOR A REMEDIAL
INVESTIGATION AND FEASIBILITY STUDY CONDUCTED BY
POTENTIALLY RESPONSIBLE PARTIES; OSUER 09835.0
••** Selection of Remedy/Decision Documents
vono 32 INTERIM GUIDANCE ON SUPERFUND SELECTION OF REMEDY;
OSUER K9355.0-19
05/16/88 PORTER, J.U./OSUER
06/02/89 OUPE
12/24/86 PORTER, J.U./OSUER
37
31
10
9001 32 RCRA/CERCLA DECISIONS MADE ON REMEDY SELECTION
9002 39 A GUIDE TO SELECTING SUPERFUND REMEDIAL ACTIONS;
OSUER f9355.0-27FS
06/24/85 KI (.PATRICK, M. /COMPLIANCE
BRANCH, OUPE
04/01/90 OERR/HSCO
-------
DATA ELEMENT
The data elements of the Compendium database, 15 identified on the index, are $.-.:*?,
teiow:
DATA ELEMENT
Doc No
Vol
Title
Datt
Authors
Status
Pafts
Tltr
Attachaeitt
DEFINITION
four-digit number assigned to a document m;:u_ei
in the Compendium according to category.
Volume number of the binder in which the hard copy of
the document is contained.
Title of the document. Secondary Reference u identified
following the title when a document relates to more than
one category. The document itself is filed under the
number series assigned to its primary category.
The date the document was published by or released from
the issuing office or entity.
Authors) and affiliation(s). Also includes identification of
the EPA Project Officer and issuing office, where
applicable.
Indicates the status of a document, either draft or f.nal
version.
Total number of printed pages of the document, including
any attachments.
Tier 1 or Tier 2. Tier 1 documents are the core documents
of the Compendium as listed in the pamphlet titled
Elected Technical Guidance for Superfund Projects.'
compiled by OER1L Tier 2 documents are all other
documents included in the Compendium.
Attachments to a document by complete or abbreviated
title.
EPA report or OSWER Directive System numb«n. *hert
applicable.
83
-------
LIST OF ORGANIZATIONAL ABBREVIATIONS AND ACRQNYV^ TESTIFIED IN THE
Agency for Toxic Substances and Disease Registry
Center for Environmental Research Information
Contract Laboratory Program
U.S. Corps of Engineers
Exposure Assessment Research Division
Environmental Criteria and Assessment Office
Environmental Monitoring Systems Laboratory
Emergency Response Division
Environmental Research Laboratory
Hazardous Response Support Division
Hazardous Site Control Division
Hazardous Site Evaluation Division
Hazardous Waste Engineering Research Laboratory
Municipal Environmental Research Laboratory
Office of Environmental Engineering and Technology
Office of Emergency and Remedial Response
Office of Health Effects Assessment
Office of Research and Development
Off ice of SotiftJtaM
Office of SoUf WhM» and Emergency Response
Office of Watt* Programs Enforcement
Policy Analysis Staff
Waterways Experiment Station
Waste Management Division
Acronym
ATSDR
CERI
CLP
COE
EARD
ECAO
EMSL
ERD
ERL
HRSD
HSCD
HSED
HWERL
MERL
OEET
OERR
OHEA
ORD
osw
OSWER
OWPE
PAS
WES
WMD
84
-------
APPENDIX P
MODEL TRANSMITTAL COVER LETTER
[Name of Contact]
[Address]
Dear [Name of Contact]:
The U.S. Environmental Protection Agency is required by law to
establish administrative records "at or near a facility at issue."
This administrative record consists of information upon which the
Agency bases its selection of response action for a particular
Superfund site.
By providing the public with greater access to these records, it
is our hope that they will be better equipped to comment
constructively on site activities and to understand the issues
relating to the selection of the response action at the site.
We appreciate having the [Name of local repository] as the
designated administrative record facility for the [Name of site]
Superfund site. The enclosed record files, along with any future
documents relating to technical activities at the site should be
placed in the [Name of local repository] and be available for public
review. The record files should be treated as a non-circulating
reference - it should not be removed from your facility.
Also enclosed is a fact sheet to assist you and your staff in
answering questions posed by the public concerning administrative
records for selection of response actions at Superfund sites.
Please feel free to distribute this guide to the public.
To ensure the receipt of the administrative record file, I would
appreciate your completion of the attached Document Transmittal
Acknowledgment form. Please return this form in the enclosed self-
addressed, stamped envelop*.
Again, I would like to thank you for your cooperation with the
U.S. EPA in serving as a Field Repository. If you have any
questions or comments, please contact [Name of EPA contact] at
[Phone No.].
Sincerely,
[Name]
Administrative Record Coordinator
85
-------
APPENDIX G
MODEL DOCUMENT TRANSMITTAL ACKNOWLEDGMENT
Proa: [Regional Office Address]
To: [Field Repository Address]
I acknowledge that I have received the following documents from the
U.S. EPA Region Office, pertaining to [Site Name] Superfund
site.
Administrative Record Name - rsite Name"!
Administrative Record Document Numbers -
Signed
Date
Please return this fora to: [Regional Office Address]
86
-------
APPENDIX H
PACT SHEET
:ive Records in Local Repositories
The "administrative record" is the collection of documents which
form the basis for the selection of a response action at a Superfund
site. Under section 113(k) of the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (CERCLA), EPA is
required to establish an administrative record for every Superfund
response action and to make a copy of the administrative record
available at or near the site.
The administrative record file must be reasonably available for
public review during normal business hours. The record file should
be treated as a non-circulating reference document. This will allow
the public greater access to the volumes and also minimize the risk
of loss or damage. Individuals may photocopy any documents
contained in the record file, according to the photocopying
procedures at the local repository.
The documents in the administrative record file may become
damaged or lost during use. If this occurs, the local repository
manager should contact the EPA Regional Office for replacements.
Documents may be added to the record file as the site work
progresses. Periodically, EPA may send supplemental volumes and
indexes directly to the local repository. These supplements should
be placed with the initial record file.
The administrative record file will be maintained at the local
repository until further notice. Questions regarding the
maintenance of the record file should be directed to the EPA
Regional Office.
The Agency welcomes comments at any time on documents contained
in the administrative record file. Please send any such comments to
[name and address]. The Agency may hold formal public comment
periods at certain stages of response process. The public is urged
to use these formal reviev periods to submit their comments.
For further information on the administrative record file,
contact [name Mfcft phone no. of Administrative Record Coordinator].
87
-------
APPENDIX I
MODEL NOTICE OF PUBLIC AVAILABILITY
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANNOUNCES THE AVAILABILITY OF THE
ADMINISTRATIVE RECORD
XYZ SITE, [Locality, State]
The U.S. Environmental Protection Agency (EPA) announces the
availability for public review of files comprising the
administrative record for the selection of the [remedial, removal]
action at the XYZ site, [Locality, State]. EPA seeks to inform the
public of the availability of the record file at this repository and
to encourage the public to comment on documents as they are placed
in the record file.
The administrative record file includes documents which form the
basis for the selection of a [remedial, removal] action at this
site. Documents now in the record files include [preliminary
assessment and site investigation reports, validated sampling data,
RI/FS work plan, and the community relations plan]. Other documents
will be added to the record files as site work progresses. These
additional documents may include, but are not limited to, the RI/FS
report, other technical reports, additional validated sampling data,
comments and new data submitted by interested persons, and EPA
responses to significant comments.
The administrative record file is available for review during
normal business hours at:
[Repository Name] and U.S.EPA - Region Z
[Address and Phone I] [Address and Phone f]
Additional information is available at the following locations:
Verified sampling data - Contract laboratory,
and documentation [Address and Phone I]
GuidsjsM documents and - EPA-Region Z
tsjeftalcal literature [Address and Phone I]
Written consents on the administrative record should be sent to:
[Name], Office of Public Affairs
U.S. EPA - Region Z
[Address and Phone I]
88
-------
APPENDIX J
MICROFORM APPROVAL MEMORANDUM
. .*—.* * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ AAj/^. * WASHINGTON. O.C. 20460
OCT 2 I
SQL'O WAS*? AND
MEMORANDUM
SUBJECT: Microfilming t :e Admir.strative Record
FROM: Edward J. Hanley, Director
Office of Information Resources Management
TO: Asa R. Frost, Jr., Director^
OSWER Information Management Staff
In accordance with EPA Records Management Manual, Chapter 6,
dated 7/13/8U, I approve OSWER's request for an
administrative record micrographic system for regional
hazardous waste management programs.
The feasibility study prepared for OWPE, entitled
"Assessment it the Suitability and Costs of Alternatives for
the Adminis:.-ative Record" (June 30, 1988), satisfactorily
documents and justifies the need for converting the
administrative record to microform. In particular, the
requirement under SARA to make the administrative record
publicly available at or near each hazardous waste site
makes microform a cost-effective storage medium.
Please inform aaeh regional hazardous waste program of my
approval of OSWER's request and of the need to comply with
the remaining provisions of Chapter 6 of the EPA Records
Manual should the region proceed with implementing an
administrative record micrographic system.
cc: SIRHOs, Region 1 - X
89
-------
APPENDIX K
MODEL CERTIFICATION
IN THE [NAME OF COURT;
UNITED STATES OF AMERICA,
Plaintiff,
v.
;NAMES OF DEFENDANTS]
Defendants,
[number]
v.
[NAMES OF THIRD PARTY
DEFENDANTS]
Third Party Defendants
CIVIL ACTION NO,
CERTIFICATION OF DOCUMENTS
COMPRISING THE ADMINISTRATIVE RECORD
The United States Environmental Protection Agency (EPA) hereby
certifies that the attached documents constitute the administrative
record for selection of response actions under the Comprehensive
Environmental Response Compensation and Liability Act or 1980, as
amended, for the [name of site] site in [City or County], [State].
By the United States Environmental Protection Agency:
In witness whereof I have subscribed my
nan* this day of , 19
in fcitvI
r signature!
ftyped name
-------
APPENDIX L
PREAMBLE TO SUBPART I OF NCP
Subaart I—Administrative Record for
Selection of Response Action
Subpart I of the NCP is entirely new.
tt impiemenu CERCLA requirements
concerning the establishment of an
administrative record for selection of a
response action. Section 113(k)(l) of
CERCLA requires the establishment of
"an administrative record upon which.
the President shall base the selection of
a response action." Thus, today's rule
requires the establishment of an
administrative record that contains
documents that form the basis for the
selection of a CERCLA response action.
la addition, section 113{k)(2) requires
the promulgation of regulations
establishing procedure* for the
participation of interested persona in the
development of the administrative
record.
These regulations regarding the
administrative record include
procedures for public participation.
Because one purpose of the
administrative record is to facilitate
public involvement procedures for
91
-------
establishing snc maintaining !he record
«rp closely related to the procedures
governing public participation. General
community relations provisions found in
other parti of the proposed NCP art
addressed elsewhere in this preamble.
The following section* discuss the
major comments received on the
proposed subpart 1 and EPA s responses.
\crne: General comments.
Proposed rue. Subpart 1 detdils how
the administrative record is assembled.
maintained and made available to the
public
Respor.se to comments: Comments on
the administrative record regulations
included the suggestion that the
preamble provide a general statement
differentiating between the
administrative record and the
information repository.
EPA agrees that while subpart t
includes ample information on the
requirements of the administrative
record, a brief clarification would help
to differentiate the record from Ihe
information repository.
The information repository includes a
divene group of documents that relate
to • Superfund site and to the Superfund
program in general, including documents
on lite activities, information about the
site location, and background program
and policy guides. EPA requires an
information repository at til remedial
action litei and any site where a
removal action is likely to extend
beyond 120 days. The purpose of the
information repository is to allow op«n
and convenient public access to
documents explaining the action* Ukiaf
place at a sit*.
The administrative record discussed
in this subpart. by contrast is the body
of document* that forms the basis of the
agency's selection of a particular
response at • ittt. i.e.. document*
relevant to a rtsponae selection that tht
lead agency relies on. a* well as
relevant comment* and information that
the lead agency consider* but may reject
in the ultimate response selection
decision. Thus, the record wfll include
document* the lead and support agency
generate. PRP and public comments, and
technical and site-specific information.
These document* occasionally overlap
with those included in the information
repository. The administrative; record
includes such information as site-
specific data and comment*, guidance
documents and technical references
used in the selection of the response
action. The information repository nny
include guides to the Superfund process.
background information, fact sheets
press releases, maps, and other
information to aid public understanding
of .1 site response, regardless of whether
the information has bear.ng on the
eventual response selection at that site.
One commenter felt that there was no
mechanism for PRPi to participate in the
development of the administrative
record. In response. PRPs are given a
chance to participate in the development
of the administrative record throughout
its compilation. EPA will make available
information considered in selecting the
response action, to PRPs and others
through the administrative record file.
Interested persons may peruse the
record file, submit information to be
included in the administrative record
Pile, or may comment on its contents
during the ensuing public comment
period.
Same: Section 300JOO(a).
Establishment of an administrative
record Section 300.B10(a). Contents of
the administrative record.
Proposed rule: Section 113(k)(l) of
CERCLA states that the "President shall
establish aji administrative record upon
which the President shall base the
selection of a response action." EPA
used similar language in f 300.800(a) of
the proposed rule "The lead agency
shall establish an administrative record
that contains the documents that/o/oi
tht basis for the selection of a response
action." (Emphasis added.) Section
300.0lO(a) states that the
"administrative record file for selection
of a response action typically, but not in
all cases, will contain the following
types of documents • * '," followed by
an enumeration of those documents.
Aespo/w to commtnU: EPA's choice
of the phrase "form the basis" In
I 300JOO(a) drew many comments. The
comments expressed concern that me
lead agency would have the discretion
to include in the administrative record
only those documents that support
EPA's selected remedy.
These comments appear to be bated
on a misunderstanding of what the
phrase "forms the basis or means as it
was used m the proposed rule. The
statute define* the administrative record
as the "record upon which the President
shall base the selection of a response
action." EPA's intent in defining the
record as the file that "contains the
documents that form the besis for the
selection of a response action** was
simply to reflect the statutory language.
For example, an administrative record
will contain the public comments
submitted on the proposed actioa even
if the lead agency rejects the comments,
because the lead agency is required to
consider these comments and respond to
significant comments in making a final
decision. Thus, these comments also
"form the basis of" the final response
selection decision. EPA intends that the
regulatory language defining the
administrative record file embody
general principles of administrative law
concerning what documents are
included in an "administrative record"
for an agency decision. As a result.
contrary to the suggestion of the
commenters. the proposed definition of
the administrative record does not mean
that the record will contain only those
documents supporting the selected
response action.
A commenter asked that the phrase
"but not m all cases" be deleted from
f 300.810(a). or specify the cases wnere
documents are excluded from the
administrative record. EPA believes it ij
better not to attempt to list excluaed
document* in the NCP since EPA cannot
possibly anticipate all the types of
documents that wUl be generated for a
sue or for future sites, and which of
these documents should be excluded
except as generally described m
i 300.810(b). It should be noted, for
example, that although a health
assessment done by ATSOR would
normally be included in the
administrative record, it would not be if
the assessment was generated by
ATSOR after the response is selected.
Others commented that certain
documents should always be included in
the administrative record. EPA believes
that only a small group of document*
will always be generated for every type
of CERCLA site, since each site is
unique. Other documents may or may
not be generated or relevant to the
selection of a particular response action
at a lite. EPA understand* that a
definitive list of required documents
would assist parties in trying to assess
the completeness of the administrative
record, but such a list would not be
practical Different sites require
different documents.
A related group of comment* asked
that the administrative record always
include certain documents, including.
specifically, "verified sampling data."
draft and "predectsional" document*.
and technical studies. One comment
stated that "invalidated" sampling data
and drafts must be part of the
administrative record in some
situations. Verified sampling data. i.e..
data that have gone through the quality
assurance and quality control process.
will be included in the record when they
have been used in the selection of a
response action. "Invalidated" data, i.e..
data which have been found to be
incorrectly gathered, are not ut:d by
EPA in selecting the response action and
should therefore not be included in the
92
-------
roaerai
r«r.->rd. These snouid be distinguished
from -.invalidated data—data that have
not betn through '.be quality control
process— which may us limited
circumstances b« coasidered by the
agency m Mlectmg the response action.
It 11 EPA's policy to avoid using
unvaiidated data whenever possible.,
Nonetheless, there are times when the
need for action and the lack of validated
data requires the consideration of tuch
data in selecting an emergency removal
action. Ifiuch data axe used, they will
be included in the record
In general, only final documents axe
included in the administrative record
files. Draft documents axe not part of the
record for a decision because they
generally are revised or superseded by
subsequent drafts and thus are not the
actual documents upon which the
decision-maker relies. However, drafts
(or portions of them) generally will be
included in the administrative record for
response selection if there is no final
document generated at the time the
response i* selected and the draft t* the
document relied on. In addition, a draft
which ha* bttn released to the public
for th* purpOM of receiving comment* ia
also part of the record, along with any
cocameau received.
Similarly, predacisional and
deliberative document*, such aa staff
notes or staff policy recommendation*
or option* papers, do not generally
belong ia the administrative record
because they merely reflect internal
deliberation* rather than final decisions
or factual information upon which the
response selection i* based. However.
pertinent factual information or
documents stating final decision* on
response selection issues for a site
generally would be included in the
record.
Technical studies are also part of the
record, again, if considered by the lead
agency in selecting the response action.
The commenter seems to have
misinterpreted EPA's intent by assuming
that only factual portions of a «y|tr"H
study are part of the record. The entire
study, or relevant part of the ttady.
should be pert of the record.
Another comment stated lint tike
administrative record should iochsde
any studies on cost cost-effecthren***,
permanence, and treatment that underlie
the record of decision. These studies are
already pert of the rented)*!
investigation and feasibility study.
which ia aiweys included In toe record.
Another party stated that sampling
protocols should be in the
administrative record Sampling
protocols are pan of the RI/FS work
plan, which ia also part of the
administrative record. And because
sarnoung protocols, iue cnam of custody
documents, are generally grouped
together. EPA has provided in this
rulemaking that such grouped or serial
documents may be Listed as a group m
the index to the administrative record
f:le.
A related comment requested that all
documents generated by contractors
should be inducted in the record. In
response, any document that forms the
basis of a response selection decision
will be included in the administrative
record. It i* immaterial who develop*
the document—it can be a contractor.
the public (including a PRP). a state or
EPA.
One commenter asked that ARAR
disputes involving a diaagreetnent over
whether a requirement i* substantive or
administrative be documented in the
record. Other comment* stated that EPA
must ensure that complete ARAR
documentation and documentation of all
remedial option*, not jus* the selected
remedy, be placed in th* record. Where
ARAR issues arc relevant to response
selection, lesd and support agency-
generated document* and public
information submitted to the lead
agency on thi* i*sue would be part of
th* record. The record will include
documentation of each alternative
remedy and ARAR studied during the
RI/FS process, and the criteria used to
select the preferred remedy during the
remedy selection process.
EPA also received sereral comments
staring mat every document contributing
to decision-making should be part of the
administrative record. EPA cannot
concur in this formulation of the
administrative record since it is unclear
what "contributing to" means and diet
phrase may be overly broad. For
instance, the term "contributing to"
could be interpreted to Include *D draft
document* leading up to a final product
Theee draft document* do not generally
form d»e bests of th* response selection.
Ihmevsr. because die administrative
record mdudes document* which form
the besis for die decision to select th*
response action. EPA believe* mat most
-contributing'' document* wiO be
included.
One comment steted that th* heard
ranting system (HRS) information
should be included in die administrative
record for selection of me response
action. Specifically, they suggested that
internal memoranda, daily ao4*e. aad
the original HRS scar* should be made
available. Th* National Priorities List
(NPL) docket is a public docket, and
already contain* th* relevant ranking
information, Th* information generally
relevant to Ib* listing of* stteon th*
NPL i* preliminary and not necessarily
rcievant to trie selection of ;Jie
action. If. however, there is mfoma.ion
in the NPL docket that is relied on m
selecting the response action, it will be
included m the administrative recora.
Another commenter stated that ail
materials developed and received dunng
the remedy selection process should be
made a part of the record, and stated
thai the NCP currently omits inclusion of
transcripts. As noted above, certain
documents simply will not be relevant to
the selection of response actions. EPA
will, a* required by the statute, include
in the record all those materials.
including transcripts, that form the basis
for the selection of a response action.
whether or not the materials support the
decision.
Several commenters asked that the
lead agency be required to mail them
individual copies of documents kept m
the administrative record. These
requests included copies of sampling
data, a copy of any preliminary
assessment petitions, potential
remedies, the risk assessment a list of
ARAR*. and notification of all future
work to be done. Commenters al*o
asked to be notified by mail when a lead
agency begin* sampling at a site and
when a contractor is chosen for a
response action. In addition, many
asked for the opportunity to comment on
the documents tnantiooed above. A
related comment suggested that EPA
maintain a mailing list for each site and
mail copies of key document* in the
record to every party on the list.
EPA believes that maintaining an
administrative record Ale in two pieces.
in addition to a more general
information repository, with provisions
for copying facilities reflects EPA's
strong commitment to keeping the
affected public including PRP*.
informed and providing the opportunity
for public involvement in response
daosaoa-making. Requiring EPA to meil
individual copies of documents
available in the record file is beyond
any statutory requirements, unnecessary
due to tiM ready availability of the
documents is die file, and a severe
burdea on Agency staff and resources.
Moat of die document* requested above
will generally be available in the
administrative record for public review
and copying. Additionally, the lead
agency snouid maintain a mailing list of
Interested persons to whoa key site
information aad node* of sit* activities
can be mailed a* pert of their
commasuty relations plac for a tit*.
One eosjuBenter asked that all PRP
comment* and comments by other
interested parties be included in the
record, regardles* of their
93
-------
s «-.ncj"e." EPA ^-.l! :r.c:jde all
corr.men',3 received during the comment
period in the administrative record.
regardless of their significance. When
the lead agency considers comments
submitted after the decision document
has been signed, the "significance" of a
comment has a bearing on whether it
will be included in the administrative
record, as specified in { 300.82S(c). In
addition, while EPA is under no legal
obligation tc place in the record or
consider comment* submitted prior to
the comment period. EPA will generally.
as a matter of policy, consider
significant comments submitted prior to
the comment period, place them into the
record, and respond to them at an
appropna'.e time. However, persons who
wish to ensure that the comments they
submitted prior to the comment period
ere included in the record must resubmit
such comments during the comment
period.
Final rule: Section 300.800(a) is
promulgated as proposed.
Name: Section 300.800(b).
Administrative record for federal
facilities.
Prcpoted rule: Section 300.800(b)
states that the lead agency for a federal
facility, whether EPA. the U.S. Coast
Guard, or any other federal agency,
shall compile and maintain an
administrative record for that facility.
When federal agencies other than EPA
are the lead at a federal facility site,
they must furnish EPA with copies of the
record index in addition to other
specified documents included in the
record. The preamble to the proposed
NCP discussion of { 300.800(b) (53 FR
51464) states that EPA will establish
procedures for interested parties to
participate in the administrative record
development and that EPA may furnish
documents which the federal agency is
required to placa in the record
Response to comments: One comment
stated that EPA should b« the custodian
for administrative records for federal
facilities, especially where the federal
facility is a PRP, to avoid any conflict of
interest in questions of liability or
litigation. Another comment stated that
the requirements in I 300400(b) of the
proposed rule would be burdensome to
federal agencies in compiling and
maintaining the record.
Executive Order 12580 grants federal
agencies the authority to "establish the
administrative record for selection of
response actions for federal facilities
under their jurisdiction, custody or
control" To avoid the potential for
conflicts of interest by federal agencies
who are PRPs and in charge of compiling
and maintaining the record, EPA retains
control over the development of the
record by specifying what goes into the
record, by supplementing the record and
by requiring an accounting of what is in
the record through a report of the
indexed contents. EPA believes that
these requirements represent sufficient
Agency oversight to avoid potential
conflicts of interest at federal facilities
while ensuring that federal lead
agencies remain responsible for
compiling and maintaining their own
administrative record.
EPA is making a minor editorial
change in \ 300.800(b)(l) to reflect that
the federal agency compiles and
maintains an administrative record for a
facility, and not at a facility, since
{ 300.800(a) already provides that the
record will be located at or near that
facility.
Final rule: EPA is promulgating the
rule as proposed, except for the
following minor editorial change in the
first sentence of I 300.800(b)(l): "If a
federal agency other than EPA is the
lead agency for a federal facility, the
federal agency shall compile and
maintain the administrative record for
the selection of the response action for
that facility in accordance with this
subpart"
Name: Section 300.800(cK
Administrative record for state-lead
sites.
Proposed rule: Section 113(k) of*
CERCLA states that the President "shall
establish an administrative record upon
which the President shall base the
selection of a response action." Section
300.800(c), entitled "Administrative
record for state-lead sites," requires that
states compile administrative records.
for state-lead sites in accordance with
the NCP.
Response to comments: Several
commenters believe that the new
administrative record procedures place
an onerous burden on the state, **rd
request that state requirements such as
Open Records Acts should be allowed
aa a substitute for compliance with
subpart L Another commenter
recommended that states be allowed to
determine whether a complete
administrative record is needed at or
near the site when a site is state-lead.
Where a response is taken under
CERCLA at a state-lead site. EPA is
ultimately responsible for the selection
of a response action. Therefore, under
section I13(k). EPA must establish an
administrative record for the CERCLA
response action at the site, and must at
a Tnin.e recorc.. Subpart 1 s',ar»s ir.e
minimum requirements for section
113(k). Lead agencies, inducing states.
may provide additional public
involvement opportunities at a site. In
response to whether or not states should
maintain a complete administrative
record at or near the site. EPA believes
that states must have such a record in
order to meet CERCLA section 113(k)
requirements.
EPA has included a minor editorial
change in J 300.800fc) to reflect that a
state compiles and maintains an
administrative record for rather than at
a given site.
Final rule: EPA is promulgating
§ 300.800fc) as proposed, except for a
minor editorial change in the first
sentence as follows: "If a state is the
lead agency for a site, the state shall
compile and maintain the administrative
record for the selection of the response
action for that site in accordance with
this subpart"
Name: Sections 300.800(d) and
300.800(e). Applicability.
Proposed rule: Section 300.800(d)
states that the provisions of subpart I
apply to all remedial actions where the
remedial investigation began after the
promulgation of these rules, and for all
removals where the action
memorandum is signed after the
promulgation of these rules. Section
300.800(d) also proposes that "(Tjhis
subpart applies to ail response actions
taken under section 104 of CERCLA or
sought secured, or ordered
administratively or judicially under
section 106 of CERCLA." Section
300.800(e) states that the lead agency
will apply subpart I to all response
actions not included in f 300.flOO(d) "to
the extent practicable."
Response to comments: One
commenter argued that the applicable
provisions of subpart I should be
amended to require agencies to comply
with the subpart for all sites where the
remedy selection decision was made
more than 90 days after proposal of tSe
revised NCP for comment Another
comment stated that | 300JOO(e) be
revised to state that lead agencies must
comply with subpart I in any future
actions they take, and that all lead
agency actions must comply with
subpart I "to the maximum extent
practicable)."
In response. EPA will adhere as
closely as possible to subpart I for sites
where the remedial investigation began
before these regulations are
promulgated. EPA will not however,
require that these sites comply with
requirements which, because of the
94
-------
:,m:r.q of 'ha resoorse ac::on reU;!%c '.o
(he promulgation of these rules, cannot
be adhered '.o. For example, under the
final rule the administrative record file
must be available at the beginning of the
remedial investigation phase, ff these
regulation* are promulgated when a site
is m the middle of the remedial
investigation process, and the
administrative record is not yet
available, the lead agency cannot at this
point comply with these regulations.
Additionally. EPA believes that adding
language to proposed NCP 5 300.800(e)
to state that lead agencies will comply
with provisions of subpart I in any
future acQon after promulgation of the
new rule i» unnecessary and redundant:
compliance mil be legally required, and
applicability to all future response
action* 11 implicit in the rule. Likewise.
insertion of the word "maximum" before
the phrase "extent practicable" La
unnecessary sine* it would g)ve
additional emphasis out would not
substanuwiy change the requirement or
the meaning of the rule.
One comment agreed with EPA'a
interpretation that subpart I applies to
all response actions "sought, secured or
ordered administratively or judicially."
but others disagreed. Several staled that
the term "judicially" should be deleted
from i 3OOJOO(d] because they argue
that response actions ordered judicially
would receive dtnovo adjudication.
instead of administrative record review.
CERCLA section 113(j)U) states: "la soy
judicial action under this Act judicial
review of any issues concerning the
adequacy of any response action taken
or ordered by the President shall be
limited to the administrative record."
Commenters contend that this section
does not apply to injuactive actions
under CERCLA section 100 because
these an not actions "taken or ordered
by the President" To the contrary, the
selection of a response action is a
"response action taken * * * by the
President" Accordingly, section 113(13(1)
requires that judicial review of th«
response action selected by the ifancy
is "limited to the administrative record."
Further, section 113fj](2) stipulates that.
"in any judicial action under this
chapter"—whether for injunctive reliel
enforcement of sn administrative order
or recovery of response costs or
damages—a party objecting to "the
President's decision in selecting the
response action" must demonstrate, "on
the administrative record, that the
decision was arbitrary or capricious or
otherwise not In accordance with law.*
EPA received several comments
objecting to EPA's determination that
judicial review of an endangerment
assessment be limited to Lhe
administrative record. They stated thdt
as a matter uf administrative and
constitutional law. a finding of imminent
and substantial endangerment is not an
issue concerning "the adequacy of the
response action. " as stated in CERCLA
section n3(j). and therefore must
receive de nova review by a. court. A
second comment requested that EPA
state in the regulation that review of
EPA's expenditures in the
implementation of a remedy is d« novo.
An assessment of endangerment at a
site is a factor highly relevant to the
selection of s response action, and is in
fact part of the remedial investigation
(Rr) process central to the decision to
select a response action. Therefore, the
determination of endangerment (which
mil generally be included in the
decision document) will be included in
the administrative record for selection
of a response action and should be
reviewed as part of that record. (EPA
notes that the term "endangerment
aseessment" document has been
superseded by the term "risk
assessment" document and while
assessment* of endangerment at a site
are still conducted during the RI. it is the
"risk assessment" document that
becomes pert of the record.) In response
to the comment that Agency
expenditures on a response action
should receive dt novo review. EPA
note* that this issue was not raised In
the proposed NGP. and is therefore not
addressed in the Baal rule.
fTra/ro/ar EPA is promulgating the
rule as proposed.
Nam* Section 300J05. Location of the
administrative record file.
Propotfdrul* Section U3(kMlJ of
CERCLA states that "the administrative
record shall be available to the public at
or near the facility at issue. The
President also may place duplicates of
the administrative record at any other
location.'' Sec^^m "KfftO* of the
proposed NCP provides five exemptions
for information which need not be
placed at or near the facility at issue
Sampling «n<4 toting data, guidance
rifM*i{fly]^fl t jt publicly available technical
literature, documents in the confidential
portion of die file, aad emergency
removal actions lasting lasa than 30
days.
SssponM to comments; One
coouiantar supported limiting thai
amount of information which must be
located at or near the site, but many
oommantars stated that every document
contributing to decision-making.
fidential documents which
art part of the record, should be located
at or near Ifie sits and agency
convergence i» not a ju:f:c:ent reason -n
exclude documents Crom :he site. They
assered that such exclusions underrmne
active public involvement at the sue and
are contrary to statutory intent Another
comment stated that requiring the
administrative record to be kept in two
places, at a central location and at or
near the site, runs counter to the
statutory requirement of keeping a
record only "at or near the facility dt
issue.' One commenter asked that EPA
acknowledge that Indian tribal
headquarters may be a logical place to
keep the administrative record when a
Superfund site is located on or near an
Indian reservation. A final comment
requested that EPA endorse through
regulatory language that administrative
records can be kept on microfiche or
other record management technologies.
and have the equivalent legal validity to
paper records.
Requiring sampling data and guidance
documents to be placed at the site is
both unnecessary and. in many cases.
very costly. Administrative records are
often kept at public libraries where
space is limited and cannot
accommodate voluminous sampling data
for large, complex sites. Sum manes of
the data are included in the RI/FS.
which is located at or near the site In
addition, requiring publicly available
technics] literature at the site will
require copying copyrighted material, an
additional expenditure of limited
Superfund' dollars. Moreover. Agency
experience is mat. as yet. relatively fevr
people view me administrative record
Gle at or near the site or request review
of tfce sampling data or general guidance
document* listed In the index to the site
Hie.
However. EPA has revised the rale to
specify that If an individual wishee to
review a document Hated In the index
bat not available in the file located at or
near the site, svch document o not
confidential will be provided for
Indusion in dn Hit upon request. The
individual will aot need to submit a
Freedom of Information Act Request in
order to have the information made
available for review in the file near the
site. EPA believes that provision of such
documents m the file near me site upon
request meets the requirement of
CERCLA section U3(k) that the record
be "available" at or near me site. la
addition, this rule doss aot bar lead
agencies from deciding to place this
infonnadoa in the sits file without
waiting for a request Lead agencies are
encoursftd to plica as much of this
information at or near the sits as
practical "** to automatically placa
information at sites where there is a
95
-------
li:gh probability that the information
will tie in demand or the information it
central to the response selection
decision.
The confidential portion of the Tile
need not be located at or near the site.
and will not be available upon request
either at the site or at the central
location, since the information is not
available for public review.
EPA believes that requiring that the
record be located in two places is
r.ecesiary to ensure both adequate
public access to the record filet and
better lead-agency control over the
record documents. The statutory
requirement in CERCLA lection
113(k)(l) states that the President may
also place duplicates of the
administrative record at any other
location. This section clearly provides
authority to maintain a second
administrative record at a central
location. Section 300.805 of the proposed
NCP (53 FR 51515) reflects EPA's
decision to make this statutory option a
regulatory requirement. A centrally
located record may offer easier access
to interested parties located far from the
response site.
EPA agrees with the commenter that
housing the centrally located copy of the
record at Indian tribal headquarters may
be appropriate whan a Superfund site is
located at or near an Indian reservation.
In the 1986 amendments to CERCLA.
Indian tribes are accorded status
equivalent to states, and can be
designated lead agencies for response
actions, in which case they would also
be required to compile and maintain the
administrative record at or near the site.
Finally, as EPA stated in the preamble
to the proposed NCP. maintaining the
administrative record on microfiche is
already recognized as a legally valid
and effective practice: "EPA may make
the administrative record available to
the public in microform. EPA may'
microform-copy documents that form the
basis for the selection of a CERCLA
response action in the refular course of
business" (53 FR 51468). EPA agrees that
this should be specified In tht rale and
has added } 300.805(e) accordingly.
providing that the lead aftncy may
make the record available is microform.
Final mlt: Section 300 JOS is modified
as follows:
1. Section 300.805(b) is added to the
rule as follows; "Where documents are
placed in the central location but not in
the file located at or near the site. «uch
documents shall be added to the file
located at or near the site upon request.
except for documents included in
paragraph (a)(4) of this section."
:. Section 3C0.805(c) is added tc :he
rule as follows: 'The lead agency may
make the administrative record file
available to the public in microform."
3. The lection hat be«n renumbered
accordingly.
Name: Sections 300.810(aHd).
Documents not included in the
administrative record file.
Proposed ru/e: Section 300.810(b)
discusses which documents may be
excluded from the administrative record.
Section (c) discusses privileged
information that is not included in the
administrative record. Section 300.810(d)
discusses confidential information that
is placed in the confidential portion of
the administrative record.
Response to comments: One
commenter argued that { 300.810 should
specifically include an exemption for
•classified documents related to national
security. While the NCP currently does
not address the potential conflict
between national security concerns and
the requirement to establish a publicly
accessible administrative record, it is
not clear that such an exemption could
be adequately specified by rule or that
an exemption would appropriately
resolve this conflict Section 1210)
provides a national security waiver by
Presidential order of any requirements
under CERCLA. which can be invoked
in certain circumstances. Under this
provision, protection of national security
interests requires case-by-case review
under section 121(j) and not a blanket
exemption in the NCP. Nothing in the
NCP limits the availability of this
waiver.
Another comment received by EPA
stated that the treatment of privileged
and confidential documents in the
records is unfair, because it denies
access to documents that may be critical
to the selection of a remedy. EPA has
provided for a confidential portion of
the administrative record when
documents containing, for example.
trade secrets of companies that have
developed patented cleanup
technologies being considered as a
response selection alternative can be
kept confidential To maintain a fair
balance between the need for
confidentiality and the public's right of
review of the record, the lead agency
must summarize or redact a document
containing confidential Information to
make available to the greatest extent
possible critical factual information
relevant to the selection of a response
action in the nonconfidential portion of
the record.
A final comment proposed that an
index to the privileged documents
should be included in the
nonconfidentia! por.ion of the
administrative record. EPA agrees.
believing that an index will let
interested parties know in general terrnj
what documents are included in the
record without compromising the
confidential nature of the information
contained in those documents.
Finally. EPA is adding a sentence to
J 300.810(a)(6) to clarify that the index
can include a reference to a group of
documents, if documents are
customarily grouped. This will simplify
EPA's task without compromising the
integrity of the record.
Final rule: 1. EPA is promulgating
Si 300.810fb). (c) and (d) as proposed
with a minor editorial change to clarify
the first sentence of \ 300.8lO(d).
2. The following language is added to
i 300.810(a)(6) to provide for listing
grouped documents in the
administrative record file index: "If
documents are customarily grouped
together, as with sampling data chain of
custody documents, they may be listed
as a group in the index to the
administrative record file."
Name: Section 300.815. Administrative
record file for a remedial action.
Proposed rule: The term
"administrative record file" is used
throughout the proposed NCP. Section
300.815{a) proposes that the
administrative record file be made
available for public inspection at the
beginning of the remedial investigation
phase.
Response to comments: EPA received
several comments objecting to the
concept of an administrative record file.
They objected because there is no
statutory authority for establishing a
file, and because they were concerned
that the lead agency could edit the file.
specifically by deleting public and PRP
comments and information that do not
support the response action ultimately
chosen by EPA. and that these
comments and information would not
remain a part of the final administrative
record.
The statute requires the President to
establish an administrative record.
Under subpart I of the NCP. the
administrative record file is the
mechanism for compiling, and will
contain, the administrative record
required by section 113(k). One reason
EPA adopted the concept of an
administrative record file is that EPA
felt that it may be confusing or
misleading to refer to an ongoing
compilation of documents as an
"administrative record" until the
compilation is complete. Until the
response action has been selected, there
96
-------
Federal Register / Vol. 35. No. 46 ' Thursd^v Marcn 8. 1990 R_:,es and Rer-la:: ;r.s
88C-
is no complete administrative record for
that decision. Thus, to avoid creating the
impression that the record is complete at
any time pnor to the final selection
decision, the set of documents is
referred to as the administrative record
file rather than the administrative
record.
However, this does not ra««n. as the
comments appear to suggest, that the
lead agency may "edit" the
administrative record file in a manner
that removes comments and technical
data simply because they are not
supportive of the final selection
decision. Any comments and technical
information placed in the record file for
a proposed response action and relevant
to the selection of that response action.
whether in support of. or in opposition
to. the selected response action, become
part of the administrative record for the
final response selection decision. Such
materials will remain in the
administrative record file, and will
become part of the final administrative
record. However. EPA believes that ai a
matter of law document* that are
erroneously placed in the administrative
record file (e.g.. documents that have no
relevance to the response selection or
that pertain to an entirely different site)
would not necessarily become part of
the final administrative record.
EPA received additional comments
stating that the administrative record
file should be available before the
beginning of the remedial investigation
phase. These comments suggested that
the file be available: When a site is
entered into the CERCUS data base;
when the HRS score is calculated: when
proposed for inclusion on the NPL after
the preliminary assessment report and
after the remedial site investigation,
EPA believes that the point at which a
site is entered into the CERCUS data
base is too early to put any information
which would be relevant to a selection
of a response action into • record file
because at this point then has beta no
site evaluation and therefore little
factual information about the site upon
which to base a response derision
Interested parties can already find any
information on a site that would be
included at the point of the HRS scoring
and placement oa the NPL in the NPL
docket, which is publicly available. The
preliminary assessment and remedial
investigation stages of a response are
premature for making the administrative
record available: at these points there is
little information relevant to response
selection on which to comment or to
review. Once the RI/FS work plan is
approved, and the RI/FS study begins—
including such activities as project
scoping, data collection, r.sk assessment
and analysis of alternatives—there is a
coherent body of site-specific
information with relevance to the
response selection upon which to
comment. EPA believes that the
beginning of the RI/FS phase is the point
in the process when it makes sense to
start a publicly available record of
information relevant to the response
selection.
One comment suggested that
interested persons would have no
chance to comment on the formation of
the RI/FS work plan. The comment
suggested that the record file should be
available before the RI/FS work plan is
approved, e.g.. with a draft work plan or
statement of work. EPA disagrees.
Approved work plans are often
amended. An interested person may
comment on the scope or formation of
the work plan, and such comments can
be taken into account by the lead
agency and incorporated into a final or
amended work plan. Such comments
must be considered if submitted during
the comment period on the proposed
action.
Final rule: EPA is promulgating
f 30O815(a) as proposed,
Name: Section 300415. Administrative
record file for a remedial action. Section
300.820(a). Administrative record file for
a removal action.
Propottd mlt: Subpart I requires that
the administrative record for a remedial
action be available for public review
when the remedial investigation begins.
Thereafter, relevant documents are
placed in the record as generated or
received. The proposed regulations also
require that the lead agency publish a
newspaper notice announcing the
availability of the record files, and a
second notice announcing that the
proposed plan has been issued. A public
comment period of at least 30 days is
required on the proposed plan. Section
MOJBO(a) outlines the steps for the
availability of the record and public
comment for a non-time-critical removal
action. EPA solicited comments on a
proposal currently under, consideration
to require quarterly or semi-annual
notification of record availability and
the initiation of public comment in the
Federal Register.
Acspoiue to comment*- Some
commenten suggested that the use of
the Federal Raftetar to announce the
availability of the administrative record
is too costly or of little or no benefit
Several commenten requested
clarification on how and when the lead
agency should respond to comments.
Another stated that lead agencies
should be encouraged—though not
required — to respond to early cor..-.e-:s
before the formal comment penoc;
begins.
EPA chose not to require a notice of
availability of the administrative record
in the Federal Register m this
rulemaking because it is still unclear
whether the benefits of this additional
notice outweigh its costs. EPA may
decide in the fut'ire to require this
additional notice if it determines that
such notice would improve notification.
EPA agrees with commenten that
clarification is needed as to when the
lead agency should respond to
comments. We also agree that the lead
agency should be encouraged to respond
to comments submitted before the public
comment period. EPA generally will
consider any timely comments
containing significant information, even
if they are not received dunng the
formal comment period, and encourages
other lead agencies to do so. EPA will
strive to respond to comments it
receives as early as possible, and to
encourage other lead agencies to follow
suit However, any lead agency is
required to consider and respond to only
those comments submitted during a
formal comment period. Any other
comments are considered at the lead
agency's discretion. EPA has revised the
language of these sections to reflect the
policy on consideration of public
comments submitted prior to public
comment periods.
One comment recommended that the
regulations should provide how long the
administrative record must be available.
and suggested EPA coordinate efforts
with the National Archives about
retaining the record as a historical
record. Another felt that materials were
not always placed into the record in a
timely manner, and that the record was
not always available to the working
public during evenings and weekends or
by a copying machine.
Similarly, one commenter felt that
documents should be placed in the
record when they are generated or in a
prescribed timeframe of two weeks.
Another asked that free copies of key
documents be included in the record.
EPA believes that the length of time a
record must be available at or near the
site will be dependent on site-specific
considerations such as ongoing activity.
pending litigation and community
interest EPA also believes that
difficulties sometimes encountered by
the working public require resolution on
a site-by-site basis and do not merit a
change in the proposed NCP language.
Special provisions may have to be made
by the records coordinator, with the aid
of other site team members, including
97
-------
i.ie cocvmunity reiauons coordinator or
regional i.te manager, to ensure lhat the
record location choten if convenient to
the public and that copying facilities an
made available. Using public libraries to
house the record should promote better
availability of the record during non-
working hours and on weekend*. In
response to mandating deadline* for
lead agencies to place documents into
the administrative record file. Agency
guidance already directs record
compilers to place documents into the
record GJe as soon as they in received.
Agency policy additionally prescribes a
suggested umeframe for placing
documents in the record file. EPA
believes that mandatory deadlines in
the NCP would do little to increase the
rate at which records are already
compiled The decision to place free
copies of key documents in the record at
or near the site will be a lite-specific
decision based on the level of
community interest in these documents.
Those who wish to make copies of key
documents or any document contained
in the administrative record Cle should
aiready have access to copying
facilities.
EPA received a comment requesting
that it publish a joint notice of
availability of the administrative record
with a notice of availability of Technical
Assistance Grants. Another rommimt
stated that the removal site evaluation
and engineering evaluation/cost
analysis fEE/CA) must be included in
the record for a non-time-critical
removal action.
Publishing notice of the availability of
the record in tandem with
announcements of the availability of
Technical Assistance Grants (TAGs) to
a good idee where TAG* are available
for a removal action. The TAG*,
however, are generally designed to
support citizen involvement in technical
issues for sites undergoing remedial
actions. The one-year. SZ million
limitations on removals and the limjted
number of alternative* usually reviewed
make further expense on a tarhrrfral
advisor lets beneficial than tt aright be
for a long-tern remedial action. As for
placing the removal site evaluation and
EE/CA in the administrative record,
EPA agrees that generally such
documents would be part of the
administrative record for the removal
action.
Finally. EPA is making * minor change
to the language of I 300 J20(a)(4). EPA is
substituting the term "decision
document" in place of action
memorandum to allow for situations
where the agency's decision document
for • rtmovaJ action is not named »a
action memorandum.
Final rule: l. The second sentences of
H 300.81Mb), 300.820(a)(2) and
300.820(b)(2) are revised to reflect the
new language on responding to
comments as follows: The lead agency
is encouraged to consider and respond.
•i appropriate, to significant comments
that were submitted prior to the public
comment period,"
2. In f 300.&20(a)(4). the term "decision
document" is substituted for "action
memorandum."
3. The remainder of { 30OA20(«) is
promulgated as proposed.
Name: Section 300.&20(b^
Administrative record file for a removal
action—tune-critical and emergency.
fropotad.ru/av Section 300.620(b)
outline* step* for public participation
and administrative record availability
for time-critical and emergency removal
responses (53 FR 51516): "Documents
included in the administrative record
file shall be made available for public
inspection no later than 60 days after
initiation of on-*ite removal activity." at
which point notification of the
availability of the record must be
published. The lead agency then, as
appropriate, will provide a public
comment period of not less than 30 days
on the selection of the response action.
Rtsponu to comments: Several
comments suggested that public
comment requirements under
i 300.820(b) were unnecessary and
burdensome, especially the requirement
to publish a notice of the availability of
the record. One comment argued that
requiring public notification of both
record availability and of a site's
inclusion on the NPL was unnecessary
and duplicative. Another """«*«»
stated that the requirements for public
notification and public comment are not
appropriate for all time-critical removal
actions, ejni recommended that foe
administrative record be available lor
review only for those time-critical
removal actions that do require public
notice and comment. A related comment
stated that the requirement to publish a
notice of availability of the
administrative record for aO time-critical
removal actions be eliminated in favor
of making the record available but not
requiring an advertisement or comment
period, since some time-critical removal
actions are completed before a public
comment period could be held. Others
asked that the public comment period
become mandatory, or at least
mandatory for removal activities not
already completed at the time the record
is made available. Another comment
requested that the record become
available sooner—at leas: 30 cays *:'•.«:
initiation of on-site removal acuviry—
because the current 90-day penod
prevtnted the consideration of any pr«-
work comment*. A second comment
supported the 80-day penod. Finally, a
commenter argued that it made littie
sense to make the record available aJter
60 days for an emergency response
because the on-scene coordinator (OSC)
report containing most of the response
information isn't required to be
completed until one year following the
response action.
In general, the public participation
requirements under i 300420(b) are
designed to preserve both the flexibility
and discretion required by the lead
agency in time-critical removal action
situations as well ss EPA's commitment
to encouraging public participation and
t6 keeping an affected community well-
informed. EPA believes the notification
and comment periods required in
I 300.£20(b) provide for both Agency
flexibility and meaningful public
involvement. The regulatory language
stating that 'The lead agency shall as
appropriate, provide a public comment
period of not less than 30 days"
provides the lead agency needed
flexibility when the emergency nature of
circumstances m«im holding a
comment period i«f«««iKU.
While EPA believes that it is
necessary to •"pomy* the availability
of the administrative record for tune-
critical and emergency removal actions
as wall as non-time-critical actions. EPA
believes that requiring establishment of
the administrative record and publishing
a notice of its availability 30 days after
initiating a removal action in all cases,
instead of "no later than 60 day* after
initiating a removal action." as
proposed, would be somewhat
premature. It has been EPA's experience
that It often takes 60 days to stabilise s
site (L*., those activities that help to
reduce, retard or prevent the spread of a
hasardous substance release and help to
eliminate an immediate threat). EPA
believes that the overriding task of
emergency response teams during this
critical period must be the undertaking
of necessary stabilization, rather than
administrative duties. Compiling and
advertising the record before a site has
become stabilized would divert
emergency response teams from
devoting their fuD attention to a
response. EPA believes that such
administrative procedures are better left
for after site stabilization.
Public notice requirements for
announcing the availability of the
administrative record and for a site's
inclusion on the NPL are not duplicauve.
98
-------
oou
but nocfy the public of two very
different decisions. Removal actions do
not always take place at sites on the
NPL therefor*, the notice requirements
are obviously not duplicitive for these
removal actions. For remedial sites that
are on the NPL the administrative
record need not be established for some
time after listing on the NPL to
publishing a notice of the availability of
the record would be essential to make
the affected public cognizant of site
progress and their opportunity for
review of documents induced in the
record.
Lastly, the procedures specified in
5 300.820(b) are applicable to an
emergency removal that starts and
finishes wtthm 60 days. However, as
provided in { 300.820(bj(2], a comment
period is held only where the lead
agency deems it appropriate. But
because the administrative record is an
avenue for public information as well as
for public comment. EPA also believes
that even if the action is completed
before the record Hie is made available.
it is still appropriate to make the record
available to the public. There is also no
inherent contradiction in the OSC report
being available one year after
completion of the response action while
the administrative record becomes
available 00 days after initiation of on-
site activities. Since the OSC report is a
summary of the site event* and is not a
document which ia considered in the
selection of response action, it is not
generally included in the administrative
record.
Final rule: EPA is promulgating
i 300.820(b) as proposed, except that:
1. The second sentence of
$ 300.820(b)(2) is revised on responding
to public comments as described above.
2. Section 300.B20(b)(3) is revised
consistent with i 300.820(a){4); the term
"action memorandum" is changed to
"decision document"
Name: Section 300.825. Record
requirements after decision document is
signed.
Pnpoted rule: Section MOMS
describes situations whtti documenU
may be added to the admtoiatrative
record after the decision document i*
signed Documents may bit added to a
record in the following circumstances:
When the document addresses a portion
of the decision which the decision
document does not address or reserves
for later when the response action
changes and an explanation of
significant differences or an amended
decision document ia issued; whan the
agency holds additional public comment
periods after the decision is signed; and
when the agency receives comments
containing "significant information not
contained elsewhere in the record which
could not have been submitted dunng
the public comment period which
substantially suppon the need to
significantly alter the response action"
(53 FR 51518). tn addition, subpart E of
the proposed NCP discusses ROD-
amendments and Explanations of
Significant Differences. Explanations of
Significant Differences may be used for
significant changes which do not
fundamentally change the remedy, and
do not require public comment ROD
amendments must be used for
fundamental changes, and require a
public comment penod.
Response to comments: One
commenter asked that subpart I reflect
the factors consistently applied by
courts when determining whether the
record should be supplemented.
including such criteria as Agency
reliance on factors not included in the
record, an incomplete record, and strong
evidence that EPA engaged in improper
behavior or acted in bad faith. A related
comment stated that since general
principles of administrative law apply to
administrative record restrictions and
supplementing the record, language
limiting supplementing the record should
be deleted from the NCP. EPA believes
that including specific tenets of
administrative law governing
supplementing of the record in the NCP
itself is unnecessary. These tenet* apply
to record review of response actions
whether or not they an included in the
NCP. The requirements of i 3O0.825(c)
do not supplant principles on
supplementing administrative records.
Another comment recommended that
EPA permit the record to be
supplemented with any issue contested
by a PRP, whilt granting aa objective
third party the ability to accept or reject
record supplements. EPA already
requires that any documents concerning
remedy selection submitted by PRPi
within the public comment period be
included in the record. All significant
evidence submitted after tbe decision
document is complete is already
included in the record, so long as it
meets the requirements of | 30&425{c),
is not included elsewhere in the record.
could not have been submitted during
the public comment period and supports
the need to significantly altar the
response action. EPA believe* these
criteria are reasonable and do not
require the use of a-third-party
arbitrator.
One comment stated that all PRP
submissions must be placed in the
record in order to protect a party's due-
process right to be heard EPA disagrees
that all PRP submissions to the lead
agc-cy must be pUced ;n t.'-.e record .-.
order to protect the party s du« process
nghts. The process provided in ihe
rules—including the notice of
availability of the proposed plan and the
administrative record for review, the
availability of all documents underlying
the response selection decision for
review throughout the decision-making
process, the opportunity to comment on
the proposed plan and all documents in
the administrative record file, the
requirement that the lead agency
consider and respond to all significant
PRP comments raised dunng the
comment period, the notice of significant
changes to the response selection, and
the opportunity to submit, and
requirement that the lead agency
consider, any new significant
information that may substantially
support the need to significantly alter
the response selection even after the
selection decision—is sufficient to
satisfy due process. Moreover, the
opportunity provided for PRP and public
involvement in response selection
exceeds the minimum public
participation requirements set forth by
the statute. Placing a reasonable limit o<\
the length of time in which comments
must be submitted and providing for
case-by-case acceptance of late
comments through I 300.S25(c|. does no.
infringe upon procedural nghts of PRPi
One commenter asked that the
permissive "may" in | 300.82S(a) be
changed so there is no lead-agency
discretion over whether to add to the
administrative record documents
submitted after the remedy selection.
and stated that additional public
comment periods as outlined in
I 300J23(b) should not be only at EPA s
option. A related comment stated that
the multiple qualifiers in I 30O425(c).
including the phrases "substantially
support the need" and "significantly
alter the response action" (S3 FR 91516).
grant EPA overly broad discretionary
powers over what documents may be
added to the record The commenter
suggests deleting the word
"substantially." aa well aa stating that
all comments, even those disregarded by
EPA. should be included In the record
for the purpose of judicial review. EPA
disagrees that tbe word "may" in either
I 300*23
-------
required oy statute or regulation, the
' perrruisive" language simply reflects
the lead agency < discretion with respecl
to these additional public involvement
opportunities. Similarly, lead-agency
discretion to add to the administrative
record documents submitted after a
decision document has been signed
provides the lead agency the option to
go beyond the minimum requirements
for public participation outlined in the
statute. In respond to requests to delete
the qualifiers in § 3OO.aZ5(c). this
language is intentionally designed to
define carefully tne circumstance* in
which EPA mu—i.
/hvefoemeaf ofDOC/DOI aus-tea*.
Many eommenters opposed the
inclusion of the DOC/DO1 trustees in
100
-------
APPENDIX M
SUBPART I OF NCP
Su&oart I— AdrmrwetraOve Record tor
Selection o* neeponae Action
J30OJOO
admnistraave record,
(a) General nquinaifot. Tha lend
agency sheil establish aa a of cataady
forms, need not be located at or near the
site at tarn or at the central location,
provided that tha indox to tha
•daiatatndva recard file indicatae die
location aad availability of this
infomatiosv
101
-------
e<60 Federal Register / Vol. 55. No. 46 / Thursday. March 8. 1990 / Rules and Regulations
(2) Guidance document* not generated
specifically for the «itt at issue need not
be located at or near the sit* at issue.
provided that they are maintained at the
central location and the index to the
administrative record file indicates the
location and availability of these
guidance documents.
(3) Publicly available technical
literature not generated for the site at
issue, such as engineering textbooks,
articles from technical journals, and
lexicological profiles, need not be
located at or near the site at issue or at
the central location, provided that the
literature is listed in the index to the
administrative record file or the
literature is cited in a document in the
record.
(4) Documents included in the
confidential portion of the
administrative record file shall be
located only in the central location.
(5) The administrative record for a
removal action where the release or
threat of release requires that on-site
removal activities be initiated within
hours of the lead agency's determination
that a removal is appropriate and on-
site removal activities cease within 30
days of initiation, need be available for
public inspection only at the central
location.
(b) Where documents an placed in
the central location but not in the file
located at or near the site, such
documents shall be added to the file
located at or near the site upon request,
except for documents included in
paragraph (a){4) of this section.
(c) The lead agency may make the
administrative record file available to
the public in microform.
{30Q>010 Contents of the sjdnlnMntfve
rSOQCQ nSS*
(a) Contents. The administrative
record file for selection of • reeponse
action typically, but not in all cases, wfD
contain the following type* of
documents:
(1) Documents "«"*"*^«^ factual
information, data and analysis of the
factual information, and data that may
form a basis for the selection of a
response action. Such <*yni|M"«« may
include verified sampling data, quality
control and quality assurance
documentation, chain of custody forma,
site inspection reports, preliminary
assessment and site evaluation reports,
ATSDR health assessments, documents
supporting the lead agency's
determination of imminent and
substantial endangerment, public health
evaluations, and technical and
engineering evaluations. In addition, for
remedial actions, such documents may
include approved workplans for the
remedial investigation/feasibility study,
state documentation of applicable or
relevant and appropriate requirements,
and the RI/FS:
(2) Guidance documents, technical
literature, and site-specific policy
memoranda that may form a basis for
the selection of the response action.
Such documents may include guidance
on conducting remedial investigations
and feasibility studies, guidance on
determining applicable or relevant and
appropriate requirements, guidance on
risk/exposure assessments, engineering
handbooks, articles from technical
journals, memoranda on the application
of a specific regulation to a site, and
memoranda on off-site disposal
capacity;
(3) Documents received, published, or
made available to the public under
i 300.613 for remedial actions, or
I 300.820 for removal actions. Such
documents may include notice of
availability of the administrative record
file, community relations plan, proposed
plan for remedial action, notices of
public comment periods, public
comments and information received by
the lead agency, and responses to
significant comments;
(4) Decision documents. Such
documents may include action
memoranda and records of decision:
(5) Enforcement orders. Such
documents may include administrative
orders and consent decrees: and
(B) An index of the documents
included in the administrative record
file. If documents are customarily
grouped together, as with sampling data
chain of custody documents, they may
be listed as a group in the index to the
administrative record file.
(b) Document* not included in the
adtnuuftrative record file. The lead
agency is not required to include
documents in the administrative record
file which do not form a basis for the
selection of the response action. Such
documents include but are not limited to
draft documents, internal memoranda,
and day-to-day notes of staff unless
such documents cw^^n information
that forms the basis of selection of the
response action and the information is
not included in any other document in
the administrative record file.
(c) Privileged document* Privileged
documents shall not be included in the
record file except as provided in
paragraph (d) of this section or where
such privilege is waived. Privileged
documents include but are not limited to
documents subject to the attomey-dient
attorney work product deliberative
process, or other applicable privilege.
(d) Confidential fth. If information
which forms the basis for the selection
of a response action is included only m
• document containing confidential or
privileged information and is not
otherwise available to the public, the
information, to the extent feasible, shall
be summarized in such a way as to
make it disclosable and the summary
shall be placed in the publicly available
portion of the administrative record file.
The confidential or privileged document
itself shall be placed in the confidential
portion of the administrative record file.
If information, such as confidential
business information, cannot be
summarized in a disclosable manner.
the information shall be placed only in
the confidential portion of the
administrative record file. All
documents contained in the confidential
portion of the administrative record file
shall be listed in the index to the Ale.
fMOJIS Administrative record file for s
(a) The administrative record file for
the selection of a remedial action shall
be made available for public inspection
at the commencement of the remedial
investigation phase. At such time, the
lead agency shall publish in a major
local newspaper of general circulation a
notice of the availability of the
administrative record file.
(b) The lead agency shall provide a
public comment period as specified in
i 300.430(0(3) so that interested persons
may submit comments on the selection
of the remedial action for inclusion in
the administrative record file. The lead
agency is encouraged to consider and
respond as appropriate to significant
comments that were submitted prior to
the public comment period. A written
response to significant comments
submitted during the public comment
period shall be included in the
administrative record file.
(c) The lead agency shall comply with
the public participation procedures
required in | 30O430(f)(3) snd shall
document such compliance in the
administrative record.
(d) Documents generated or received
after the record of decision is signed
shall be added to the administrative
record file only as provided in | 30042
1*00420 AalnMrtrattv* record ffe tor i
(a) If, based on the site evaluation.
lead agency determines that a removi
action is appropriate and that a planr
period of at least six months txists
before on-site removal activities mus
initiated
(1) The administrative record file i
be made available for public inspect
when the engineering evaluation/co'
102
-------
Federal Register / Vol. 55. No 46 / Thursday. March 8. 1990 ' Rjies ar.d Aoaui
aaei
analysis (EE/CA) is made available for
public comment. At such time, the lead
agency shall publish m a major local
newspaper of general circulation a
notice of the availability of the
administrative record file.
(2) The lead agency shall provide a
public comment period as specified >n
5 300.415 so that interested persons may
submit comments on the selection of the
removal action for inclusion in the
administrative record file. The lead
agency is encouraged to consider and
respond as appropriate, to significant
comments that were submitted prior to
the public comment period. A written
response to significant comments
submitted during the public comment
period shall be included in the
administrative record file.
(3) The lead agency shall comply with
the public participation procedures of
§ 300.415(m) and shall document
compliance with ] 300.415(m)(3)(i)
through (iii) in the administrative record
file.
(4) Document* generated or received
after the decision document is signed
•hall be added to the administrative
record file only as provided in i 30Q-82S.
(b) For all removal actions not
included in paragraph (a) of this section:
(1) Documents included in the
administrative recorc file shall be made
available for public inspection no later
than 60 days after initiation of on-site
removal activity. At such time, the lead
agency shall publish in a major local
newspaper of general circulation a
notice of availability of the
administrative record Tile.
(2) The lead agency shall as
appropriate, provide a public comment
period of not less than 30 days beginning
at the time the administrative record file
is made available to the public. The lead
agency is encouraged to consider and
respond, as appropriate, to significant
comments that were submitted prior to
the public comment period. A written.
response to significant comments
submitted during the public f^g^nt
period shall be included in tht
administrative record file.
(3) Documents generated or received
after the decision document is signed
shall be added to the administrative
record file only as provided in I 300828.
I300J2S Record requirements after ttw
(a) The lead agency may add
documents to the administrative record
file after the decision document
•electing the response action has been
signed if:
(1) The documents concern a portico
of a response action decision that tht
decision document does not address or
reserves to be decided at a later date: or
(2) An explanation of significant
differences required by § 300.435(c). or
an amended decision document is
issued, in which case, the explanation of
significant differences or amended
decision document and all documents
that form the basis for the decision to
modify the response action shall be
added to the administrative record file.
(b) The lead agency may hold
additional public comment periods or
extend the time for the submission of
public comment after a decision
document has been signed on any issues
concerning selection of the response
action. Such comment shall be Limited to
the issues for which the lead agency has
requested additional comment. All
additional comments submitted during
such comment penods that are
responsive to the request, and any
response to these comments, along with
documents supporting the request and
any final decision with respect to the
issue, shall be placed in the
administrative record file.
(c) The lead agency is required to
consider comments submitted by
interested persona after the dose of the
public comment penod only to the
extent that the comments contain
significant information not contained
elsewhere in the administrative record
file which could not have been
submitted during the public comment
period and which substantially support
the need to significantly altar the
response action. All such comments and
any responses thereto shall be placed in
the administrative record file.
Subpart J—Usw of DttporMnts) and
Otttw
(a) Section 311{c)(2)(G) of tht dean
Water Act requires that EPA prepare a
sdradule of dispersants and other
chemicals, if any. that may be used in
carrying out the NCP. This subpart
makes provisions for such a schedule.
(b) This subpart applies to the
navigable waters of the United States
and adjoining shorelines, the waters of
tht contiguous zone, and tht high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act
activities under tht Deepwater Port Act
of 1974. or activities that may affect
natural resources belonging to.
appertaining to. or under the exclusive
management authority of the United
State*, including resources under tht
Magnuson Fishery Conservation and
Management Act of 1970.
103
(c) This subpart applies to the use of
any chemical agents or other additives
as defined in subpart A of this par; ir-.a;
may be used to remove or control oil
discharges.
$300.905 MCJ» Product Schedule.
(a) Oil Discharges. (1) EPA shall
maintain a schedule of dispersants and
other chemical or biological products
that may be authorized for use on oil
discharges in accordance with the
procedures set forth in § 300.910, This
schedule, called the NCP Product
Schedule, may be, obtained from the
Emergency Response Division (OS-2:0).
U.S. Environmental Protection Agency.
Washington. DC 20460. The telephone
number is 1-202-382-2190.
(2) Products may be added to the NCP
Product Schedule by the process
specified in { 300.920.
(b) Hazardous Substance Re/eases
[Reserved].
{300J10 Authorization of u««.
(a) The OSC with the concurrence of
the EPA representative to the RRT and.
as appropriate, the concurrence of the
RRT representatives from the states
with jurisdiction over the navigable
waters threatened by the release or
discharge, and in consultation with the
DOC and DO1 natural resource trustees.
when practicable, may authorize the use
of dispersants. surface collecting agents.
biological additives, or miscellaneous 04!
spill control agents on the oil discharge.
provided that the dispenants. surface
collecting agents, biological additives, or
miscellaneous oil spill control agents are
listed on the NCP Product Schedule.
(b) The OSC with the concurrence of
the EPA representative to the RRT and.
as appropriate, the concurrence of the
RRT representatives from the states
with jurisdiction over the navigable
waters threatened by the release or
discharge, and in consultation with the
DOC and DOI natural resource trustees.
when practicable, may authorize the u»e
of burning agents on a case-by-case
basis.
(c) The OSC may authorize the use of
any dispersant surface collecting agent.
other chemical agent burning agent
biological additive, or miscellaneous oil
spill control agent Including products
not listed on the NCP Product Schedule.
without obtaining the concurrence of the
EPA representative-to the RRT. the RRT
representatives from the states with
jurisdiction over the navigable waters
threatened by the release or discharge.
when, in the judgment of the OSC the
use of the product is necessary to
prevent or substantially reduce a hazard
to human life. The OSC is to inform the
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLO WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Final Guidance on Preparing Waste-in Lists and Volumetric
Rankings for Release to Potentially Responsible Parties
(PRPs) Under CERCLA ("Waste-in" Guidance)
FROM: Bruce M. Diamond, Director.
Office of Waste Programs Enforc'ement
TO: Director, Waste Management Division,
Regions I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division,
Region X
This memorandum transmits to you our "Final Guidance on
Preparing Waste-in Lists and Volumetric Rankings for Release to
Potentially Responsible Parties (PRPs) Under CERCLA," which has
been referred to as the "waste-in" guidance.
If EPA invokes special notice procedures under CERCLA section
122(e)(l), the Agency must provide PRPs with the names and
addresses of all PRPs, the volumes and types of substances sent to
the site by each PRP, and the volumes of all substances present at
the site. To the extent such information is available, it must be
released with the special notice letter.
This document provides guidance on the compilation and release
of waste-in lists and volumetric rankings to help you comply with
the information release requirements of CERCLA section 122(e) and
the information release and exchange policies outlined in OSWER
Directives 9835.12 and 9834.10.
Based on Regional input, we made several significant changes
to the guidance relating to information release with RI/FS special
notice, commonly contributed volumes, and the status of "mom and
pop" gas station waste oil generators on waste-in lists. I thank
you for your assistance.
Attachment
cc: Superfund Branch Chiefs, Regions I - X
"Waste-in" Guidance Contacts, Regions I - X
Printed on Recycled Paper
-------
OSWER Directive 9835.16
GUIDANCE ON PREPARING WASTE-IN LISTS
AND VOLUMETRIC RANKINGS FOR RELEASE
TO POTENTIALLY RESPONSIBLE PARTIES (PRPs) UNDER CERCLA
FINAL
February 20, 1991
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees of the
U.S. Environmental Protection Agency. Such guidance and procedures
do not constitute rulemaking by the Agency and may not be relied
upon to create a right or benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
take action at variance with this guidance and its internal
implementing procedures.
-------
OSWER Directive 9835.16
GUIDANCE ON PREPARING WASTE-IN LISTS
AND VOLUMETRIC RANKINGS FOR RELEASE
TO POTENTIALLY RESPONSIBLE PARTIES (PRPs) UNDER CERCLA
I. INTRODUCTION
This document provides guidance on the compilation and
release of waste-in lists and volumetric rankings. A waste-in
list gives the volume and nature of substances contributed by
each PRP identified at a facility. A volumetric ranking is a
ranking by volume of the hazardous substances at a facility.
If EPA invokes special notice procedures under CERCLA
section 122(e)(l), the Agency must provide PRPs with waste-in
lists, volumetric rankings and a list of PRP names and addresses
"to the extent that such information is available." This
information facilitates the information exchange process with
PRPs that can expedite a settlement agreement. Where available,
waste-in information is sent to PRPs before formal negotiations
begin. For more information on the Agency's policy on releasing
information to PRPs at CERCLA sites, see Releasing Information to
Potentially Responsible Parties at CERCLA Sites, OSWER, March l,
1990, OSWER Directive 9835.12, and references cited there.
II. BACKGROUND
Experience has demonstrated that waste-in lists and
volumetric rankings are a valuable tool in bringing about
settlements at Superfund sites. When presented with an estimate
of the nature and volume of hazardous substances contributed to a
site, PRPs are more able to coalesce into committees and
determine allocations among themselves, and often are more
willing to participate in settlement negotiations with EPA.
While not all sites are logical candidates for waste-in lists or
volumetric rankings, production of waste-in lists and rankings is
generally beneficial, whenever practicable.
In the Management Review of Superfund (June, 1989) the
Administrator called for guidance to "ensure effective
information collection, information exchange, and enforcement of
information requests to encourage Potentially Responsible Party
(PRP) participation in the settlement process." The
recommendation emphasized the importance of a consistent approach
when releasing information to PRPs about the identity and
relative contributions of PRPs and the type and quantity of
-------
OSWER Directive 9835.16
wastes at a site, the latter of which is referred to in this
guidance as "waste-in information."
Because waste-in lists have proven a valuable tool in
initiating PRP negotiations and bringing about settlements, the
Agency is providing guidance to improve the process of
information gathering, waste-in compilation, and information
release to PRPs. Production of waste-in lists will vary widely,
depending upon the classes of PRPs (e.g., owner/operator vs.
multigenerator) and available information. Where sufficient
information is available, Regions should provide waste-in lists
to PRPs.
Increasingly, and particularly at large, complex Superfund
sites with multiple contributors, PRPs have been requesting EPA
to furnish them with waste-in information in order to reach a
settlement among themselves and with the Agency. This represents
a shift from past experience, where PRPs often preferred to
compile waste-in lists themselves. Whether EPA produces waste-in
information on a site, or chooses to use or adopt waste-in
information developed, at least in part, by PRPs must be a site-
specific determination reflecting the Region's or PRPs'
respective resources, willingness, familiarity with the site and
experience with transactional databases. Where PRPs compile
waste-in information, Regions must ensure that the information
meets the qualitative standards articulated in this guidance
before releasing it to other PRPs.
Often, Regions must rely heavily on information provided by
the PRPs through 104(e) responses in order to compile a waste-in
list or volumetric ranking. While Regions have broad discretion
in providing PRPs with supporting documentation, waste-in
information — when developed — should be sent to all identified
PRPs at a site, consistent with OSWER Directive 9835.12.
III. DEFINITIONS
The following "waste-in" terms are defined solely for
purposes of this guidance and are intended to assist Regions in
its implementation:
Waste-in Information - Information on the type and quantity
of hazardous substances at a facility. Waste-in information
includes waste-in lists and volumetric rankings.
-------
OSWER Directive 9835.16
Waste-in List - A listing of the volume and nature of
substances contributed by each PRP identified at a facility.
A waste-in list satisfies the information-release
requirements of CERCLA section 122(e)(1)(B).
Volumetric Ranking - A ranking of the hazardous substances
at a facility in descending volumetric order. A volumetric
ranking satisfies the information-release requirements of
CERCLA section 122(e)(1)(C).
Volumetric Ranking of PRPs - A ranking of PRPs on the waste-
in list in descending order of the total volume of hazardous
substances that they contributed to a facility. PRP
volumetric contribution is usually expressed as a percentage
of the total volume of hazardous substances at the facility.
These rankings are sometimes referred to as "generator
rankings."
Non-Binding Allocation of Responsibility (NEAR) - A non-
binding preliminary allocation of responsibility prepared
pursuant to CERCLA section 122(e)(3) which allocates
percentages of the total cost of response among potentially
responsible parties at a facility.
Information Release - Distribution of waste-in and other
site information to the PRPs identified at a facility in
order to facilitate settlement between PRPs and the Agency.
IV. WASTE-IN LIST DEVELOPMENT AND INFORMATION RELEASE PROCESS
Waste-in list development and information release can be
viewed as a five-part process. Part one is the PRP search. PRP
search activities focus on the development of evidence for 106
and 107 actions and on waste-in information for waste-in lists
and volumetric rankings. Part two is waste-in information
assessment, conversion, and compilation. This is the process
where waste-in information is converted into waste-in lists and
volumetric rankings. Parts three, four, and five concern the
dynamics of information release and exchange.
A) PRP Search
PRP search procedures include developing evidence for 106
and 107 actions as well as developing waste-in information for
waste-in lists and volumetric rankings (PRP Search Supplemental
-------
OSWER Directive 9835.16
Guidance for Sites in the Superfund Remedial Program. OWPE, June,
1989, OSWER Directive No. 9834.3-2a). The supplemental guidance
describes a two-phased process for conducting PRP searches and
outlines the format and content for remedial PRP search reports.
Although the following sections refer to remedial PRP searches,
the waste-in information development process described in this
guidance applies to both remedial and removal searches.
1) Baseline PRP Search
Phase one of a PRP search is called the baseline phase. Its
focus is primarily on establishing owner/operator liability and
identifying generators and transporters associated with the site.
Baseline-phase activities usually include collecting records from
federal, state, and local government agencies; interviewing
current and past government officials; conducting a title search;
and issuing section 104(e) information request letters to site
owners and operators. Typically, owner/operator transactional
records will be the only waste-in information that is developed
during the baseline phase. Although these may not provide a
complete waste-in picture, they will certainly provide a
significant number of leads that can be pursued during the
follow-up PRP search.
2) Follow-up PRP Search
The second phase of a PRP search is called the follow-up
phase. Its focus is on establishing generator and transporter
liability and developing waste-in information for waste-Tin lists
and volumetric rankings. Activities for the follow-up phase can
vary considerably from site-to-site depending on site complexity,
the number of generators and transporters associated with the
site, and the difficulties encountered with waste-in information
development. Follow-up PRP search activities usually include
issuing section 104(e) information request letters to generators
and transporters, interviewing PRPs and current and past PRP
employees, and conducting specialized tasks, as needed, which are
described in the PRP Search Manual. OWPE, November, 1987, OSWER
Directive No. 9834.6.
In addition to the development of evidence for 106 and 107
actions, activities conducted during the follow-up PRP search
should focus on waste-in information for waste-in lists and
volumetric rankings. Often, the person who can provide
information on a PRP's liability can provide information on the
wastes that were sent to the site.
-------
OSWER Directive 9835.16
3) Waste-in Lists and PRP Search Planning
Regions should plan an information release strategy and
schedule when they are doing PRP search planning. The plan
should include a schedule for waste-in list preparation,
revision, and release. Important milestones for scheduling
include assessment of waste-in information, when to issue general
notice letters, a cut-off date for refining waste-in lists, and
whether to send out lists before or with special notice letters.
Where special notice is not invoked but Regions choose to produce
waste-in lists, a schedule detailing list compilation, revision,
and release is equally important to ensure that the information
gets to PRPs in a timely manner.
B) Assessment, Conversion, and Compilation of Waste-in
Information
1) Assessment
At some point during the follow-up PRP search, the PRP
search team (i.e., the work assignment manager or RPM, civil
investigator, program management, and ORC attorney) should assess
the quality and completeness of the waste-in information and
determine whether waste-in lists and volumetric rankings will be
developed. The statute gives EPA considerable discretion to
decide whether to do a list or ranking. Whether the records at a
site constitute sufficient evidence to produce waste-in lists and
volumetric rankings will be a highly site-specific determination
by each Region.
Regions should develop an approach for assessing waste-in
information that is internally consistent and based on a common
set of considerations. Attachment 1 is provided to assist
Regions in assessing waste-in information. When special notice
procedures are invoked, Regions should prepare waste-in lists and
rankings for release to PRPs as provided in section 122(e)(l) of
CERCLA. In general, Regions should prepare waste-in lists and
volumetric rankings whenever practicable, especially where it
would facilitate settlement.
2) Conversion
Waste-in information should be converted to a common unit of
measurement. In general, most sites will be receiving hazardous
substances in drums or tankers, making gallons the preferable
-------
OSWER Directive 9835.16
unit in which to express volume. However, some sites such as
landfills may have large amounts of solid waste, trash, and other
hazardous substances coming in by weight, in which case pounds or
tons may be more appropriate. Where transactional records are
divided among liquid volumes and weights, Regions should convert
all volumes to a single standard using the equation 1 gallon =
8.33 pounds, unless more specific density information is
provided. Attachment 2 is a list of standard conversion factors
that can be used to convert volumes and weights to a cr -~r unit
of measurement.
3) Compilation
a) Making Assumptions About Waste-in Infor:nat_ .r.
In order to compile waste-in lists and volumetric rankings,
Regional staff may have to interpret ambiguous data and make
assumptions regarding waste-in information. When making
assumptions about waste-in information, Regions should generally
follow three broad rules:
o Assumptions should be defensible. Regions should use
established conversion standards and base assumptions
on patterns established in the data in order to avoid
charges of being arbitrary or capricious.
o State assumptions openly. When interpreting illegible
numbers on a manifest, or assuming a disposal
destination from an unclear hauling ticket, it is
preferable to let PRPs know where EPA made assumptions
and to identify where ambiguity still exists. The lists
are thus more credible and PRPs have the opportunity to
make their own corrections. Assumptions should be
reviewed by Regional counsel to ensure that they do not
jeopardize a cost recovery case or other enforcement
action.
o Be consistent. PRPs involved at more than one site
within a single Region will be aware of any
discrepancies in the kinds of assumptions made for
waste-in lists at these sites, and disputes over
inconsistent assumptions only slow down the settlement
process. Regions should ensure that everyone compiling
waste-in information is using the same Region-wide set
of assumptions and compilation methodology. Some
6
-------
OSWER Directive 9835.16
inconsistencies may be unavoidable, however, where
facts in separate cases differ significantly.
Based on Regional experience in preparing waste-in lists and
volumetric rankings, a list of generally accepted assumptions for
waste-in lists and volumetric rankings has been compiled in
Attachment 3.
In many cases, Regions will have to make additional site-
specific assumptions about waste-in information to improve the
comprehensiveness of waste-in information and the willingness of
PRPs to negotiate. However, Regions should bear in mind that
assumptions that are not easily supported may have the effect of
slowing down or thwarting the formation of a PRP negotiating
group while PRPs dispute EPA's numbers.
b) Who to Include on Waste-in Lists
Pursuant to CERCLA section 107(a), PRPs include generators
of a hazardous substance, transporters of a hazardous substance,
and owners or operators of sites where hazardous substances were
treated or disposed of. In general, generators are always
included in a waste-in list where evidence indicates they
contributed hazardous substances to a Superfund site.
Transporters should be included on waste-in lists when the
transporter - and not the generator - determined where the
hazardous substances were to be taken for treatment or disposal.
EPA interprets CERCLA sections 107(a)(4), 101(20)(B), and
101(20)(C) to exempt transporters from notice as PRPs where they
did not select the site or facility to which hazardous substances
were delivered (Policy for Enforcement Actions Against
Transporters Under CERCLA. OSWER, December 23, 1985, OSWER
Directive No. 9829.0). The policy states that while all
transporters should be sent 104(e) information request letters,
only those transporters who appear to have selected.the site for
hazardous substance disposal should be sent notice letters and
waste-in information.
While owner/operators may be PRPs and consequently may be
jointly and severally liable under CERCLA section 107, in most
cases they are not included on waste-in lists. Owner/operators
should be included on waste-in lists, however, where there is
evidence to suggest they also acted as a transporter or generated
waste at the site.
-------
OSWER Directive 9835.16
C) Information Release with General Notice
To provide PRPs ample time to organize and develop a
reasonable offer to conduct or finance a response action, Regions
should issue a general notice letter (GNL) prior to issuing a
special notice letter (SNLl under section 122(e) for an RI/FS or
RD/RA. General notice letters should be sent to all persons
where there is sufficient evidence to make a preliminary
determination of potential liability under section 107. For more
information on general and special notice letters, see Interim
Guidance on Notice Letters. Negotiations, and Information
Exchange. OSWER, October, 1987, OSWER Directive 9834.10.
In most cases, Regions should not expect to release waste-in
lists and rankings to PRPs with general notice letters issued
before an RI/FS. This is due to the fact that follow-up PRP
search activities are being conducted and complete waste-in
information has not yet been developed. General notice letters,
however, may include the names and addresses of PRPs to the
extent this information is available.
D) Refining and Revising Waste-in Lists and Volumetric
Rankings
If waste-in lists and volumetric rankings are released
before issuance of special notice letters, Regions should revise
and update this information prior to its release with special
notice letters to ensure that the information provided to the
PRPs is based on currently available data. The following
guidelines pertain to list and ranking revisions prior to
issuance of special notice letters, or prior to information
release where no special notice letter is sent for RI/FS or RD/RA
work:
o Regions should not spend an unreasonable amount of time
on waste allocation. Waste-in lists and volumetric
rankings are intended to provide PRPs with contribution
information, but do not constitute EPA's final position
on PRP contributions or allocations.
o Regions should not spend unreasonable amounts of time
on waste characterization. Where records give detailed
information on chemical compounds and hazardous
constituents, Regions should provide as much detail as
available in the waste-in list to help convince PRPs of
the strength of EPA's evidence and encourage them to
8
-------
OSWER Directive 9835.16
begin negotiating. However, where more detailed waste
information is not easily available, general waste
characterization should be sufficient at this stage in
the process.
o General terms, such as "waste oil" or "solvent", can be
descriptive enough for the purposes of demonstrating
PRP contribution to a site, and for volumetric
rankings. The primary distinction in the information
release process is whether or not a substance is
hazardous, and, therefore, should be counted in the
ranking and waste-in attribution.
The Regions should bear in mind that the time available for
waste-in information revisions will be restricted by the target
special notice date and PRP requests for waste-in information
under section 122(e)(l).
E) Information Release with RI/FS or RD/RA Special Notice
Special notice letters are used to initiate a formal period
of negotiations with PRPs and to invoke the statutory moratorium
on section 104 and 106 actions. Special notice can be given
prior to the conduct of the RI/FS or RD/RA, in which case PRPs
are encouraged to conduct or finance these response activities.
Along with the special notice letter, the Agency releases to the
PRPs the names and addresses of all PRPs, the volumes and types
of substances sent to the site by each PRP, and the volumes of
all substances present at the site. To the extent such
information is available, it must be released with the special
notice letter.
If waste-in information is not available for RI/FS special
notice, the information-release requirements of section 122(e)
can be met by releasing the names and addresses of PRPs and other
information in our possession relating to the volume and nature
of substances. RD/RA special notice must be accompanied by
waste-in information, to the extent it is available. (Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange. OSWER, October, 1987, OSWER Directive 9834.10, and
Releasing Information to Potentially Responsible Parties at
CERCLA Sites. OSWER, March, 1990, OSWER Directive 9835.12).
-------
OSWER Directive 9835.16
V. GENERAL CONSIDERATIONS FOR RELEASING WASTE-IN INFORMATION
The following are general guidelines on what to consider
when releasing waste-in information to PRPs:
1. Always include a disclaimer when releasing waste-in
information to PRPs. Waste-in information is not equivalent
to a nonbinding preliminary allocation of responsibility
(NEAR) or cost allocation; emphasize this in the disclaimer.
Similarly, it is important to emphasize the preliminary (and
hence incomplete) nature of waste-in information. Regions
should include the following disclaimer when releasing
waste-in information to PRPs:
"This information does not constitute a non-binding
preliminary allocation of responsibility under CERCLA
section 122(e)(3). This information should not be construed
as an allocation of responsibility or liability by EPA.
This waste-in list and volumetric ranking is provided solely
for your information. This list is preliminary and subject
to revisions based upon new information as, and if, it
becomes available."
2. When releasing waste-in information to PRPs. Regions should
openly state assumptions made when compiling the lists and
rankings. Where records are less than complete, assumptions
typically must be made about volumes and weights, conversion
factors, waste characterization and shipment and disposal
destinations. By stating assumptions openly, and by
identifying uncertainties in a list or ranking, PRPs will
have better information upon which to judge the accuracy of
waste-in information, to revise lists themselves, and to
base allocation among themselves — all of which can
facilitate settlement. Assumptions should not, however,
jeopardize a cost recovery case or other enforcement
actions.
Because the lists are not binding and do not serve as
preliminary allocations of responsibility or liability, PRPs
should not be able to successfully challenge waste-in
information, although many will undoubtedly dispute EPA's
rankings and volumetric attributions. Additionally. EPA
should always state that the burden is on the PRPs to
demonstrate where EPA's assumptions are incorrect.
10
-------
OSWER Directive 9835.16
3. There are some limits on information release. Any
information, such as supporting documentation, that Regions
release to PRPs beyond what is statutorily required under
section 122(e)(l) is at the discretion of the Region. When
available, however, waste-in information that falls outside
the scope of 122(e)(l) may be subject to certain
limitations. For example, information that is identified in
a section 104(e) information request response as
Confidential Business Information (CBI) should not be
released with special notice unless permitted by 40 CFR Part
2 and/or required by section 104(e)(7). Information release
may also be governed by FOIA, which includes a number of
exemptions and privileges such as the attorney-client
privilege. (See OSWER Directive 9835.12).
4. Where hundreds of PRPs are identified at a Superfund site,
Regions may prefer to distribute waste-in lists and rankings
to PRPs through an information meeting. Experience has
shown that meetings are useful for bringing large numbers of
PRPs together where they can meet and form a bargaining
committee. Presenting waste-in information to PRPs at a
meeting also may encourage reluctant PRPs to begin
negotiations.
5. Correcting inaccuracies and producing new lists. In
general, if PRPs are willing to make corrections and
incorporate new information themselves, and settlement will
not be delayed by this work, it is preferable to let PRPs
rework the lists themselves. However, where substantial new
numbers of PRPs or new site-related waste information comes
to light through information request responses or other
channels, Regions may wish to revise waste-in lists
themselves where such revision would expedite settlement and
limit internal debate among negotiating PRPs. In general,
Regions should only issue a revised list once between the
RI/FS and RD/RA stages.
6. Regions should avoid playing the role of referee in PRP
disputes over waste-in information and respective
allocations. PRPs will often ask EPA to moderate disputes
over contributions and allocations, preferring EPA as a
"neutral" voice over that of the PRP steering committee or
rival PRP factions. In many cases pressure will be put on
EPA to step in and moderate disputes between large and small
PRPs, or where small PRPs are trying to assert de minimis
status.
11
-------
OSWER Directive 9835.16
Due to resource implications, Regions should not become
overly concerned with internal PRP allocation issues, even
when smaller contributors may claim coercion from larger
contributors. Regions might consider involvement in
allocation guestions, however, when they appear to
jeopardize the likelihood of settlement. Small contributors
may be eligible for a de minimis settlement. (Guidance on
Landowner Liability Under Section 107 (aHl) of CERCLA. De
Minimis Settlements Under Section 122(QH1HB) of CERCLA.
and Settlements with Prospective Purchasers of Contaminated
Property. OSWER, June 6, 1989, OSWER Directive 9835.9).
7. EPA should inform PRP groups that viable PRPs will have to
absorb orphan shares. Many waste-in lists are characterized
by unattributable volumes and hazardous substances. Where
lists and rankings contain these "orphan" shares, Regions
should encourage PRP negotiating groups to absorb these
shares and apportion the shares as part of the internal
allocation process.
VI. FORMAT AND CONTENT OF WASTE-IN INFORMATION
For the sake of illustration, waste-in lists and volumetric
rankings are discussed in this section as separate documents,
even though the information could very easily be combined into a
single document that also includes the names and addresses of
PRPs.
A) Waste-in Lists [CERCLA section 122(e)(1)(B)]
Waste-in lists contain the volume and nature of substances
contributed by each PRP identified at a facility. At a minimum,
the lists should contain columns for the names and addresses of
PRPs as well as the types and volumes of hazardous substances.
Although EPA is under no statutory obligation to release
information beyond this in a waste-in list, Regions should
release supplemental waste-in list information unless there are
countervailing legal, policy, or strategy reasons not to do so.
(See OSWER Directive 9835.12). Supplemental waste-in information
can include, but is not limited to, the dates of shipments, the
names of transporters, the types of evidence from which waste-in
lists were derived, and comments to clarify assumptions,
ambiguities, and double-counts. Attachment 4 is a waste-in list
that contains supplemental waste-in information.
12
-------
OSWER Directive 9835.16
In some situations, it may be advantageous to prepare
separate waste-in lists for generators and transporters. Where
most PRPs at a site are generators, waste-in lists should be
organized by generator, with a column provided for listing the
transporter of each shipment in order to link the generator to
the site. Where there are multiple transporter PRPs, it may be
advisable to prepare separate waste-in lists for generators and
transporters. [See discussion under paragraph D) below].
B) Volumetric Rankings of Substances at a Facility [CERCLA
section 122(e)(1)(C)]
CERCLA also requires that special notice recipients be
provided with a volumetric ranking of hazardous substances at the
facility, to the extent such information is available. This
ranking lists hazardous substances and their respective volumes
in descending volumetric order. It can be developed from waste-
in list information.
C) Volumetric Rankings of PRPs
The statute does not require the release of "volumetric PRP
rankings", sometimes referred to as generator rankings, with
special notice; however, several Regions release information to
PRPs in this format because they feel it provides a logical
starting point for negotiations. Volumetric rankings of PRPs
rank the PRPs on the waste-in list in descending order of volume
and express their contributions as a percentage of the total
volume of hazardous substances at the facility. Regions should
bear in mind and convey to the PRPs that waste-in information
provided with special notice is intended as an estimate of
individual PRP contributions, and is neither definitive nor
binding in any way. It is intended solely as information to
facilitate settlement agreements between PRPs and .the Agency.
Where there is insufficient information to convert volumes
into a single unit of measurement, Regions may provide a
volumetric ranking using raw data from records in unconverted
form. PRPs can then choose to clarify ambiguities concerning
volumes or substances themselves in order to produce a better
list upon which to negotiate.
13
-------
OSWER Directive 9835.16
D) Accounting for Commonly Contributed Volumes
Where hazardous substances are contributed both by the
generator and the transporter who designated the treatment or
disposal site, Regions should attribute the volumes to both
parties when compiling waste-in information. EPA should not try
to apportion responsibility for a hazardous substance shipment
generated by one PRP and transported by another among the two
PRPs in a volumetric ranking or waste-in list, but should let the
PRPs themselves allocate their respective responsibilities for
commonly contributed volumes.
Commonly contributed volumes can be accounted for on
volumetric rankings of PRPs by attributing the volume of each
shipment to both generator and transporter. This is the
preferred approach when separate generator and transporter
volumetric rankings have been prepared; however, it creates a
situation where some shipments can be counted twice, which may
cause PRPs to question the validity of methodologies used to
compile waste-in information unless double-counted shipments are
clearly identified and their impact on total volumes is
explained. Accordingly, when volumetric rankings of PRPs contain
double-counted shipment volumes, Regions should provide PRPs with
an explanation of why shipments have been double-counted and
clearly identify, by means of a comment field or other notation,
which shipment volumes have been attributed to both generators
and transporters.
Another way of accounting for commonly contributed volumes
is to identify the transporter linked to each shipment on a
generator waste-in list and indicate whether the transporter
designated the treatment or disposal facility. This is the
preferred approach when separate generator and transporter
volumetric rankings cannot be prepared due to insufficient
information or information management system limitations.
Further, it is recommended that waste-in lists be prepared in
this way even when commonly contributed volumes are accounted for
on volumetric rankings of PRPs to ensure that these volumes are
consistently identified on all waste-in information that EPA
releases to PRPs.
VII. SITE-SPECIFIC VOLUMETRIC INFORMATION GUIDANCE
This section offers guidance specific to the following types
of Superfund sites: municipal landfills, removal actions, sites
14
-------
OSWER Directive 9835.16
with little or no documentation, solvent recycling/ transshipment
sites and, briefly, lead-battery sites and mining sites.
A) Municipal Landfills
Landfills are notoriously difficult sites for producing
waste-in information, both because of poor record-keeping
practices and because of the mixture of different wastes disposed
there. Many Regions do not even attempt compiling waste-in
information for landfills. However, because of the importance of
waste-in information in bringing about negotiations, Regions
should at least assess whether waste-in lists and volumetric
rankings could be developed, particularly where records exist and
where interviews can provide good supplemental information on
truck routes, generators and shipment volumes.
In many instances, most of the wastes in a municipal
landfill are not hazardous substances and do not belong in a
waste-in list or volumetric ranking. The Interim Policy on
CERCLA Settlements Involving Municipalities and Municipal Wastes
(OSWER Directive 9834.13) provides that generators and
transporters of municipal solid waste or sewage sludge generally
will not be notified as PRPs unless evidence shows that the waste
or sludge contains a hazardous substance, and that hazardous
substance came from a commercial, industrial or institutional
process or activity. Generators and transporters of commercial
trash, however, generally are notified as PRPs unless they can
demonstrate that none of the hazardous substances contained in
the trash are derived from a commercial, institutional or
industrial process or activity, and that the amount and toxicity
of the hazardous substances do not exceed the amount normally
found in common household trash. From this policy, Regions
generally should not include municipal solid wastes in waste-in
lists or volumetric rankings except where evidence suggests that
the waste or sludge contains a hazardous substance, and that
hazardous substance came from a commercial, industrial or
institutional process or activity. Further, unless PRPs can
demonstrate otherwise, Regions generally should include trash
from commercial, institutional and industrial entities in waste-
in calculations.
All generators, transporters and owner/aperators involved at
a municipal landfill site usually should still be sent Section
104(e) request letters to provide Regions with as much
information and documentation on the site as possible. Regions
15
-------
OSWER Directive 9835.16
should only send notice letters, waste-in lists, and volumetric
rankings to those identified as PRPs.
Regions should also compare information they have gathered
at a landfill site with information on PRPs and hazardous
substances at other Superfund sites in the area. In some
instances, the same transporters who shipped hazardous substances
to nearby facilities or Superfund sites may have also shipped
substances to the municipal landfill. Interviews and civil
investigations of nearby industries and commercial entities may
provide information that can link hazardous substance shipments
from these entities to a municipal landfill, particularly where
transactional records show that hazardous substance shipments did
not reach a designated RCRA facility for disposal.
B) Removals
Most removal sites are not good candidates for compiling
waste-in information since they require clean-up action sooner
than the time it would take to produce waste-in lists. Non-time-
critical removal sites, with a planning process of six months or
more, are the only sites for which waste-in lists and rankings
should be considered. Where adequate transaction documentation
exists and settlement seems possible, Regions should prepare
waste-in lists and rankings as described in section 122(e)(l) for
release to PRPs.
As with remedial sites, Regions should begin preparing a
schedule for waste-in list and ranking compilation, revision and
release during the early stages of the PRP search. Because
removals proceed at an accelerated rate, it is important to start
waste-in preparation early, spend less time fine-tuning lists and
rankings, and release the information to PRPs as early as
possible. Regions should notify PRPs of their potential
liability orally, followed by a confirming written notice, or
through a general notice letter. Information on the identity of
other PRPs at a site, and evidence on individual contribution,
should be sent out with this written notice. Where a special
notice letter is sent, waste-in lists and rankings should be sent
out with or before the special notice letter. Where no special
notice letter is sent, Regions can either send waste-in lists and
rankings through a separate mailing between the general notice
and the beginning of the removal action, or distribute the
information at a meeting of PRPs during that time. Where a
removal site involves large numbers of PRPs, Regions may prefer
to distribute waste-in information at a central meeting as they
16
-------
OSWER Directive 9835.16
might for a remedial site. For more information on notifying
PRPs at a removal site, see Chapter V of the Superfund Removal
Procedures Manual, and Interim Guidance on Notice Letters.
Negotiations, and Information Exchange. OSWER, October, 1987,
OSWER Directive 9834.10.
Regions should initiate information gathering and document
retrieval very early, and move quickly to retrieve site documents
that might otherwise be destroyed during removal activities.
Regions should make special arrangements to gather evidence at
sites where documents are contaminated and cannot be collected in
a normal information-gathering operation. These special
arrangements could include photographing contaminated documents.
C) Sites with no Records or Poor Records
Where preliminary baseline records collection during the PRP
search fails to yield good site or transactional records, Regions
should not abandon the idea of compiling volumetric rankings or
waste-in lists. A number of Regions have succeeded in locating
missing records or new PRPs, and in supplementing weak
documentation by persisting in their information gathering
through alternate sources, or using civil investigators and eye-
witness accounts. In general, where site records are inadequate
to produce waste-in lists and rankings but where such information
would enhance the possibility of reaching a settlement, Regions
should consider using other avenues to gather information on a
site. These include:
o Civil Investigators, who can be used for tracking down
withheld records, identifying new PRPs who may have
documentation, interviewing witnesses whose accounts
can lead to new information and new PRPs, and
clarifying incomplete documentation;
o Supplemental 104(e) Information Request Letters, which
can be used to request further information, clarify
existing information, or be sent to new PRPs discovered
through prior 104(e) letter responses (see Guidance on
Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas, OECM, August, 1988, OSWER
Directive 9834.4-A). Supplemental request letters can
be sent out at any time during the remedial or removal
process, but are most useful for the purpose of
compiling waste-in information if sent before the
special notice letter and moratorium; and,
17
-------
OSWER Directive 9835.16
o Administrative Subpoenas, as provided in CERCLA section
122 (e) (3) (B) , which are available to Regions "to
collect information necessary or appropriate" for
performing a preliminary non-binding allocation of
responsibility or "for otherwise implementing this
section," including preparation of waste-in information
under section 122(e)(l). Administrative subpoenas,
whose use is encouraged in the Administrator's
Management Review of Superfund, June, 1989, provide
Regions with an additional enforcement tool for
deposing witnesses and collecting "reports, papers,
documents, answers to questions, and other information
that the President deems necessary." (Guidance on Use
and Enforcement of CERCLA Information Requests and
Administrative Subpoenas. OECM, August, 1988, OSWER
Directive 9834.4-A).
D) Solvent Recycling and Other Transshipment Sites
Solvent recycling and other transshipment sites are often
characterized by operations that make it difficult to compile
accurate waste-in information, even though good transactional
records may exist. Transshipment activities usually involve the
temporary storage of hazardous substances prior to off-site
shipment for treatment or disposal. Recycling activities
typically involve the recovery and sale of "pure" products from
spent solvents and waste oils.
Regions may encounter difficulties when compiling waste-in
list volumes for solvent recycling and transshipment sites.
Unless records indicate clearly what percentage of incoming
substances were shipped off-site as pure product or as
temporarily stored substances, Regions should include all
incoming wastes in both volumetric rankings and waste-in lists,
and put the burden on PRPs to demonstrate that hazardous
substances left the facility and in what quantities.
Where all hazardous substances were brought to a central
site and then shipped to subsequent disposal sites, Regions may
find it easier to create a main transactional database for the
central site and subcategories for each disposal site within ^he
main database, or create separate lists for each site. Again,
the purpose of waste-in information is not to produce an exact
allocation of substances contributed by each PRP, but an
18
-------
OSWER Directive 9835.16
approximate ranking by volume that PRPs can use to determine an
appropriate allocation among themselves.
Hauler records will often provide good information on which
hazardous substances were brought to a facility; they are not
always as clear, however, on what substances left that facility,
particularly when different transporters are involved. Hauler
records used in conjunction with a site log provide a good means
to chart the inflow and outflow of hazardous substances from a
site. Where transporter records indicate hazardous substances
were shipped to a certain site, Regions should assume the
documentation is correct unless PRPs can demonstrate otherwise.
Similarly, where generators' shipments were known to have been
sent to different sites, Regions should assume on a preliminary
basis that the destination recorded on the transporter ticket is
correct.
Hazardous waste recycling facilities operated after 1980
should have RCRA manifest documentation, although manifests are
not always reliable and not always kept for three years (or
longer) as required under RCRA 40 CFR section 263.20. Recycling
sites operated prior to 1950 are less likely to have good site or
transactional records. Where a recycling facility has been in
operation before and after 1980, recent RCRA manifests may
provide clues to pre-1980 site operations, including end
products, incoming shipment volumes and substances, and disposal
patterns on site.
E) Lead Battery Sites
Sites run as lead-recycling operations where automotive
batteries are cracked open to capture reusable lead electrodes
often produce hazardous substance contamination through
improperly disposed sulfuric acid. These sites, along with
transformer recycling sites contaminated by PCBs, are notoriously
difficult for producing waste-in information. Documentation is
often poor to nonexistent, and volumes are extremely difficult to
determine. Regions face difficult questions about how far up the
waste-stream to go after PRPs. Where site records and
transactional records are reliable and available, Regions should
try to produce waste-in information. In most cases, Regions
probably will not have such documentation.
19
-------
OSWER Directive 9835.16
F) Mining Sites
Abandoned mining sites or sites contaminated by mining
overburden also frequently may pose difficulties for producing
waste-in information. This is due to the fact that documentation
is rarely available; PRPs are often no longer in business,
insolvent or untraceable; calculating volumes can be extremely
difficult due to the large volume of wastes; and under RCRA [40
CFR 261.4(b)(3)], certain mining wastes are exempt as RCRA
hazardous wastes and therefore may not be CERCLA hazardous
substances (unless some other basis exists for defining the
material as a hazardous substance under CERCLA section 101(14)).
Municipalities may keep records on land ownership or mining
leases, and occasionally record annual tonnage and profit figures
for individual mines. Even these records, however, may require
major assumptions on the amounts of waste produced per ton of
mined product. In general, unless documentation is good and
viable PRPs can be found, Regions should not attempt compiling
waste-in information for mining sites.
20
-------
WASTE-IN LIST
DECISION GUIDELINE
Attachmer
Were hazardous substances
brought in to the site (as
)posed to generated on-site)?
YES
Don't do lists
NO
Was there more than one
generator or transporter?
Consider expanding sources:
o Supplemental 104(e) Letters
o PRP/Private party interviews
o Administrative subpoenas
NO
YES
Are there good transactional
records or site records
available?
YES
Are alternative sources sufficient
to produce waste-in list?
YES
Do Lists Now
NO
Release what information is available; limited
rankings or waste-in information, names and
addresses of PRPs only.
or,
Accept that sufficient information isn't available and
stop.
-------
Attachment 2
OSWER Directive 9835.16
STANDARD CONVERSION FACTORS FOR
WASTE-IN LISTS AND VOLUMETRIC RANKINGS1
I truckload =74 drums
1 drum = 55 gallons
1 barrel = 55 gallons
1 gallon =8.33 pounds
1 pail = 5 gallons
1 ton = 2,000 pounds
1 metric ton = 2,204 pounds
1 ton = 250 gallons
1 liter. = 0.264 gallons
I cubic foot = 7.482 gallons
1 cubic yard = 202.018 gallons
1 box = 1 gallon
1 tank truck = 4,500 gallons
1 pound = 1 pint = 0.125 gallons
In addition, asbestos ceiling tile is assumed to be 1 inch
thick. One square foot is therefore assumed to = 0.6233 gallons.
Where volumes indicated on transactional records are
unclear, such as "pallet," "wheelbarrow," "box car," Regions
should try to corroborate assumptions or estimates of volumes
through interviews, alternate sources of records, or site-log
information. Where there is no corroborating evidence, Regions
should include their best estimate of the volume and indicate it
is an estimate.
1Tank trucks and drums come in several different sizes and
Regions should check waste-in documents carefully to ensure that
the correct conversion factor is used.
-------
Attachment 3
OSWER Directive 9835.16
GENERALLY ACCEPTED WASTE-IN LIST
AND VOLUMETRIC RANKING ASSUMPTIONS
The following is a partial list of reasonable assumptions
which may be appropriate when preparing waste-in information:
o A 55-qallon drum nr any other container of hazardous
substances for disposal was full when it was shipped
and when it was disposed. Unless a shipping or
disposal record unambiguously indicates otherwise,
either because the recorded volume is less than that of
the full container volume, or the price is less than
that normally charged for a full container, the burden
of proof is on the PRP to show that a container was
less than completely full.
o Anything labeled a "corrosive" without additional
explanation or identification is hazardous and should
be included in yolinngtric and waste-in lists.
"Corrosives" are regulated as hazardous waste under 40
CFR 261.22 of RCRA. The burden is on the PRP to
demonstrate why a substance labeled "corrosive" did not
meet the definition in CERCLA of a hazardous substance.
The destination listed on a manifest or other
transactional record is correct. The burden is on the
PRP to show that a shipment of hazardous substances
recorded as sent to one destination was not in fact
sent there. Regions may want to scrutinize
transshipment site records particularly closely, since
hazardous substances are shipped to, as well as from,
these sites. Where records clearly indicate that
hazardous substances were removed from a site, Regions
can factor this information into waste-in lists and
volumetric rankings. Where records are less clear,
Region should include all wastes as sent to the site
and put the burden of proof on PRPs to demonstrate that
hazardous substances left the site. Where Regions make
assumptions about destinations, they may want to state
them openly in appropriate circumstances.
-------
Attachment 3
OSWER Directive 9835.16
Commercial, industrial or institutional trash is
hazardous and should be included in waste-in lists and
volumetric rankings unless PRPs can demonstrate
otherwise. The Interim CERCLA Municipal Settlement
Policy (OSWER Dir. 9834.13) provides that generators
and transporters of trash from a commercial, industrial
or institutional entity generally will be notified as
PRPs unless they can demonstrate that none of the
hazardous substances contained in the trash are derived
from commercial, industrial or institutional processes
or activities, and where the amount and toxicity of
those hazardous substances are not above the level
commonly found in household trash. Where EPA is
compiling the lists, it is better to include industrial
trash as hazardous, and let PRPs make necessary
revisions afterwards. On the other hand, the Interim
CERCLA Municipal Settlement Policy indicates that
generators and transporters of household trash
generally will not be notified as PRPs.
Anything labeled "solvent" is hazardous, and should be
included in waste-in and volumetric lists. In many
cases, labels on drums will describe hazardous
substances generically and not include information on
specific compounds. Regions should make reasonable
efforts to find other evidence to corroborate the
hazardous nature of a substance, where possible.
Where hazardous and nonhazardous substances are mixed
together, the mixture is considered hazardous and
should be included in its entirety on waste-in and
volumetric lists. Solid wastes, when mixed with one
or more hazardous wastes, are considered a RCRA
hazardous waste as described in 40 CFR sections
261.3(a)(2)(iii) and (iv), except where the waste was a
characteristic waste and no longer exhibits any of the
characteristics of a hazardous waste or where it has
been excluded as a hazardous waste in 40 CFR 261.3.
Under CERCLA, where there is mixing of hazardous and
nonhazardous substances during transport or disposal,
the combination would be subject to CERCLA if it still
contains a hazardous substance.
-------
Pl|, No. I f Jt
Did: OI/'O/M
i isi u UOSIE innN5rt:iiQNS
CtltblMO SMI MCOBDS
COrrtMlAi Oil jlRVlCES
KCLMD INVOICE
MMfft MJHKH
riwG.
DATE UASIE KStdlPIIPN
mil
UKTWN'f SI/I IJHII IXIIMH! irltS
IRflNSIOAUR
SHU' it a ivi
wi omr
WMMr SERVICES, INC.
• opcurt mnoui
187V 111*
I87S] II Ml
18/X k-559
I871/ li33
I6»J) |ju«t
IBJM i :it,«
U/«\/K URSIE OIL
I2/03/K Oil, UAIER, (MD SLUOGt
OI/I8/83 BSU
iWIJ/83 BSU
iU/n\/|) UftSIt OIL
i)J/c*/83 UftSIC Oil
cM/Oi/8J URSIE OIL
•H/lS/U MftSIE Oil
iH/aa/u IASIE OIL
'ft/Ot/SJ tSU
D5/I6/8J URSIE Oil
i/J/a7/U BSU
'*/i)3/83 UASIf Oil
i*/u>/&2 MRS 11 OK
ijt/^j/aj auoa
uwu unuR
n//ii(,/83 unsu Ji;
I'/MS/H- Ufl^'I lill *M) Ujllff
fV.i.u' l.'»0ni NICflPI
^i^y/.n^^) l.ini Gft Rd'CIPI
CKCi: 1.IIK*
l^,i.!,>«, i u. i^« MUII'I
CKIrl Sli^K
Cl>.i.,.),,i i.iw IK*, mciipi
INVOICE
CKCK SIUU
*5> n% wain
»I l.ihiGAL MCtlPI
INVOICE
fUCK SII«B
*«.*.)i. I.WBII RtrtiPr
M».I»<» i.ixj 6rt menu
^».')ilui) l.^iiCA KCHPI
INVOICE
CKCK SlUdb
M.).I)I»' i.oium Ktiii'i
»>...». l.i^GA WIIIPI
iwvoirf
ClICR Slut*
;i» i^»i I.IK) fA Kill IPI
tVi.mwi l.i'ifA HCIII-I
'1 ftVll ( i
i,''»i/f< i: /
-------
>
i
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OSWER // 9832.18
MAR 2 11991
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Written Demand for Recovery of Costs Incurred Under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA)
FROM: Bruce Diamond, Director
Office of Waste Program
William A. White
Acting Associate Enforcemnt Counsel
for Superfund
TO: Regional Administrators, Regions I - X
To maximize cost recovery under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
Regions are responsible for documenting costs, issuing written
demands1 for those costs, and pursuing parties that do not
reimburse the Environmental Protection Agency (EPA).
V The term "written demand" is used throughout this document
in reference to CERCLA § 107(a). A "demand letter" is the form of
written demand which is issued where response costs have been
incurred under CERCLA but are not contained in a special notice
letter. Thus, demand letters as referenced in the "Superfund Cost
Recovery Strategy" (July 29, 1988, OSWER Directive No. 9832.13),
or any other CERCLA policy or guidance, are considered a type of
written demand. Although EPA is not required by CERCLA to issue
written demands to accrue interest, use of these written demands,
in accordance with this guidance, will help maximize interest
recovery. See U.S. v. Bell Petroleum Services, Inc., MO-88-CA-05
(W.D. Texas March 8, 1990) where prior written demand was held not
to be strictly required for recovery of prejudgment interest. The
court stated that the language in CERCLA 107 (a) regarding written
demands essentially is a guideline for courts to follow for
determining the date from which prejudgment interest begins to
accrue.
Printed on Recycled Paper
-------
OSWER # 9832.18
The primary purposes of written demands are: (1) to formalize
the demand for payment of incurred costs plus future expenditures,
(2) to inform potential defendants of the dollar amount of those
costs, and (3) to establish that interest begins to accrue on
expenditures. This guidance is intended to help assure that
written demand is made early to maximize recovery of interest,
without creating an unduly burdensome process.
This guidance updates those portions of the directive "Cost
Recovery Actions under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA)" (August 26, 1983,
OSWER Directive No. 9832.1), which address use and issuance of
written demand. Additional information about cost recovery
activities may be found in the documents listed in Appendix C,
Index of Existing Relevant Guidances.
Attachment
cc: Directors, Waste Management Division,
Regions I, IV, V, and VII
Directors, Hazardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Division,
Region X
Regional Counsel, Regions I-X
-------
OSWER t 9832.18
Written Demand for Recovery of Costs Incurred
Under the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA)
I. Authority to Incur Interest
II. Types of Written Demand
A. Special Notice Letters Containing Demand for Payment
B. Demand Letters
1. Following Removal or Remedial Activities
2. Oversight Reimbursement
3. Partial Settlement
4. Prior to Referral to DOJ
III. Content of Written Demand
IV. Roles and Responsibilities of Regions
A. Pre-Demand Activities
B. Documentation/Interest Calculation
1. Documentation
2. Interest
C. Preparing and Issuing the Demand
D. Use of Recipient List
E. States and State-lead Sites
F. Payment
G. Negotiation and Settlement
H. Procedure in Event of No Response or No Settlement
V. Disclaimer and Further Information
Appendix A Model Demand Letters
Appendix B Sample Summary of Costs
Appendix C Index of Existing Relevant Guidance
-------
OSWER f 9832.18
I. AUTHORITY TO INCUR INTEREST
CERCLA § 107(a) provides, among other things, that specified
classes of responsible parties are liable for all costs incurred
by the United States government in response to a release or threat
of release of hazardous substances. In addition, PRPs are liable
for damages for injury to, destruction of or loss of natural
resources, including the costs of assessing such injury, loss, or
destruction, and for costs of any health assessment or health
effects study carried out under CERCLA S 104(i).
The Superfund Amendments and Reauthorization Act of 1986
(SARA) extends responsible party liability under CERCLA to include
interest on recoverable costs. CERCLA § 107(a) states:
[t]he amounts recoverable in an action under this section
shall include interest on the amounts recoverable.... 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. The rate of interest on the
outstanding unpaid balance of the amounts recoverable under
this section shall be the same rate as is specified for
interest on investments of the Hazardous Substance Superfund
established under subchapter A of chapter 98, of Title 26 [of
the Internal Revenue Code of 1954, as modified in 1986].2
EPA3 intends to use this authority and demand interest on all costs
as appropriate.
II. TYPES OF WRITTEN DEMAND
A. Special Notice Letter Containing Demand for Payment
Special notice letters should contain written aemand for
reimbursement of past and future costs. For example, if a special
notice letter includes a demand for payment, interest may begin to
2/ For pre-SARA expenditures, various courts have held that
EPA may collect preju-.jment interest on recoverable costs. U.S.
v. Northernaire Platinj Co. 685 F. Supp. 1410 (W.D. Mich. 1988),
aff'd. 889 F.2d 1497 (6th Cir. 1989); U.S. v. Northeastern
Pharmaceutical & Chemical Co.. 579 F. Supp. 823 (W.D. Mo. 1984),
aff'd in part, rev'd in part, and remanded. 810 F.2d 726 (8th Cir.
1986), cert, denied. 108 S. Ct. 146 (1987).
5/ This document refers to "EPA" rather than "lead-agency."
As discussed in part IV E of this guidance, EPA is responsible for
issuing a written demand in situations where a state has the lead
for enforcement actions.
-------
OSWER # 9832.18
accrue from the date of the special notice letter for those costs
already expended. The special notice is not the only or first time
EPA may issue a demand for costs incurred. Therefore, interest may
begin accruing at an earlier date than the issuance of the Special
notice with demand. Interest begins to accrue for subsequent
expenditures upon the date of expenditure.4 Once written demand
has been sent with the special notice letter, record of demand
should be entered into CERCLIS and Regional tracking systems as an
issued demand. If a reasonable estimate of past costs cannot be
developed prior to issuance of the special notice letter, that
information may be provided at a later point.5
General notice letters, also, may contain written demand for
reimbursement of past and future costs if sufficient evidence of
PRP liability is available at the time of issuance and past costs
are known.
B. Demand Letters
Demand letters should be issued:
o following completion of individual response actions.
If response actions are taken at operable units,
demand letters should be issued following completion
of actions at each unit,
o for oversight costs,
4/ However, see the discussion in footnote 1 concerning U. S.
v. Bell Petroleum Products. Inc.
5/ As stated in the October 19, 1987, "Interim Guidance on
Notice Letters, Negotiations, and Information Exchange" (OSWER
Directive number 9834.10):
The [special notice] letter should include a demand that PRPs
reimburse EPA for the costs the Agency has incurred in
conducting response activities at the site pursuant to
§107(a). The letter should identify the action EPA undertook
and the cost of conducting the action. The letter should also
indicate that the Agency anticipates expending additional
funds on activities covered by this notice and other specified
future activities. Finally, the letter should demand payment
of interest for past and future response costs incurred by EPA
pursuant to S107(a).
The model notice letters in OSWER directive number 9834.10 contain
a sample paragraph -for demand in special notice letters, which is
included in Appendix A of this guidance.
-------
OSWER # 9832.18
o to non-settlers when less than 100% of EPA's costs
are, or will be, obtained under a. settlement, and
o prior to referral to the Department of Justice
(DOJ).
Depending on how a PRP responds to a demand letter, including
whether it settles and how it complies with settlement terms, a PRP
may receive more than one demand letter for the same costs.
To promote cost recovery and maximize recovery of interest,
EPA will transmit written demand as early as practicable following
expenditures associated with a response action. The letter should
also indicate that the Agency anticipates that additional funds may
be expended on activities covered by this notice and other
specified future actions.
1. Following Removal or Remedial Activities: Demand letters
should be issued after:
o completion of a removal action,
o completion of a Remedial Investigation/Feasibility Study
(RI/FS) (i.e., at issuance of a ROD) for a site or, if
applicable, an individual operable unit, and
o an award of a contract for a Remedial Action (RA) for a
site or, if applicable, an individual operable unit.
(The demand should include Remedial Design (RD) costs and
estimated RA costs).
To expedite cost recovery, demand letters should be issued as
soon as possible following an appropriate response action, but
generally no later than twelve months after completion of each
distinct phase of a response action. For example, for a non-CERCLA
104(b) removal, when removal activities are done; for a funded
RI/FS, at the time the Region issues a § 122(a) letter related to
RD/RA negotiations. (If the Region does not issue a S 122 (a)
letter, but issues a special notice letter, the special notice
should contain a demand for RI/FS costs and a separate demand
letter is not necessary.) In accordance with the "Superfund Cost
Recovery Strategy" (OSWER Directive No. 9832.13), written demand
for RD and RA should be made no later than the initiation of
physical on-site construction of the remedial action.
Regions should periodically review disbursements of costs and
estimates of future costs and issue a subsequent demand for payment
of costs to PRPs when these costs or estimates have significantly
accumulated or increased. Demand letters should always reflect
EPA's most current costs. An updated accounting of costs in a
-------
OSWER f 9832.18
demand letter will help avoid possible delays in negotiations by
minimizing lag time while PRPs negotiate allocation issues among
themselves.
2. Oversight Reimbursement: EPA seeks reimbursement of
oversight costs pursuant to either administrative consent orders,
judicial consent decrees, or demand letters issued independently
of a consent order or decree (for example, for oversight of a
unilateral administrative order). Typical administrative consent
orders provide that EPA will seek reimbursement from PRPs by a bill
or accounting, rather than a "demand letter," at the end of each
one-year period throughout the period of the order for all
oversight costs incurred during that year.
Where there is a settlement embodied in a consent order or
decree, bills should specifically reference the provision in the
order or decree which provides for oversight reimbursement, and the
section which specifies the schedule for reimbursement. Bills for
reimbursement of negotiated oversight costs should include a
statement that:
"[t]he cost of EPA's oversight of the PRP's cleanup for
the period of [insert time period), at the [insert name!
facility, including related administrative expenses, is
$ . In accordance with {insert consent decree or
administrative order on consent provision number] demand
is hereby made upon rinsert name] for payment of the
above stated sum."
If PRPs are operating under an administrative order or
judicial decree which does not include a provision for oversight
reimbursement, a demand letter should normally be issued which
demands reimbursement for costs related to oversight. An oversight
reimbursement demand is covered by the reservation of rights clause
in an order or decree.
Demand letters for oversight reimbursement, where the work
was performed outside the framework of a settlement for such costs,
should include a statement that:
"[t]he cost of EPA's oversight of the PRP's cleanup for
the period of [insert time periodl at the [insert name!
facility, including related administrative expenses, is
$ . In accordance with CERCLA S 107, demand is
hereby made upon [insert name] for payment of the above
stated sum."
Oversight costs should be accurately recorded as an oversight
activity in CERCLIS to ensure proper tracking and follow-up of this
cost recovery category.
-------
OSWER f 9832.18
3. Partial Settlement; If a settlement has been reached with
fewer than 100% of the PRPs for only a portion of costs incurred
by EPA, a demand letter may be issued to the remaining non-settling
responsible parties, if sufficient liability evidence is available
to the Region. This may be followed by appropriate enforcement
action seeking recovery of remaining costs. The demand letter
should request reimbursement of the total cost of remediation,
oversight, and operation and maintenance, less the amount settled,
plus interest. If appropriate, the demand letter should indicate
that a portion of the response and/or costs have already been
settled and note the settled amount. For purposes of negotiations
and subsequent litigation with non-settling PRPs, when pursued, the
Region may wish to attribute specific costs to the appropriate
operable unit. If there are no remaining PRPs, the remaining PRPs
are not financially viable, or the evidence of their liability is
too weak, the Region should close-out costs in accordance with
OSWER Directive No. 9832.11.
4. Prior to Referral to DOJ; Demand letters should be issued
to all defendants prior to referral of a cost recovery case to the
Department of Justice (DOJ). In limited instances, however, EPA
may choose to issue the demand letter concurrently with referring
the cost recovery case to DOJ. This latter approach may be taken,
for example, where the statute of limitations deadline is rapidly
approaching and when negotiations have broken off and it is
apparent to the Region that the PRP will not reimburse EPA after
follow-up contact has been attempted. Regions should take
particular care that demand letters issued prior to CERCLA §107
cost recovery referral should reflect EPA's most current costs.
III. CONTENT OF WRITTEN DEMAND
Many of the following items (except numbers 7-10) are included
in a special notice letter regardless of whether the letter
includes a written demand. However, when a special notice letter
includes a written demand, numbers 7-10 will need to be included
in the special notice letter. In addition to the items on the
following list, Regions may also choose to include S 104(e)
information request letters with the special notice and demand
letters. Model written demands are provided in Appendix A. At a
minimum, demand letters should include:
1. The name, location and spill identification number, if
appropriate, of the site.
2. Reference to EPA's authority to administer CERCLA and the Tund
established under CERCLA (or reference to authority to recover
costs where the response activities for which reimbursement
is sought occurred prior to CERCLA).
-------
OSWER # 9832.18
3. Statement describing the release or threatened release of a
hazardous substance from a facility which causes the
incurrence of response costs.
4. A specification of the dates and types of response actions
undertaken by EPA at the site.
5. A statement that EPA believes that the recipient is a
responsible party as defined in CERCLA § 107(a) and liable for
the sum set forth in the demand letter.
6. Reference to any notice given to the recipient prior to or
during the response action which allowed the recipient an
opportunity to undertake the work or pay the expense of
response.
7. The total cost of the response action. When the Region
expects that future costs will be incurred, the demand letter
should clearly state that in addition to sums already
expended, EPA plans to expend additional sums on the site for
which the responsible party is liable. Costs previously
demanded, but not paid, should again be demanded. Previously
demanded, unpaid costs should also reflect appropriate
interest which has accrued. [This is also included in
special notice demand].
8. A demand for payment which includes the Superfund lock box
address. [This is also included in special notice demand.]
9. A statement that, pursuant to CERCLA § 107(a), "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 actual
expenditure concerned. The rate of interest on the
outstanding unpaid balance of the amounts recoverable under
[CERCLA § 107] shall be the same rate as is specified for
interest on investments of the Hazardous Substance Superfund
established under subchapter A of chapter 98, Title 26 of the
Internal Revenue Code of 1954," [as modified in 1986]. The
demand letter should specify the current interest rate. Also,
the demand should note that EPA is not reguired by CERCLA to
issue a written demand for recovery of prejudgment interest.
The written demand serves as a guideline for determining the
date from which prejudgement interest begins to accrue. [This
is also included in special notice demand.]
10. A statement that specifies in the event the recipient files
for protection in the Bankruptcy Court, EPA reserves its right
to file a Proof of Claim or Application for Reimbursement of
-------
OSWER # 9832.18
Administrative Expenses against the bankrupt's estate. [This
is also included in special notice demand.]
11. A general statement giving the names of other PRPs to which
the written demand is sent. If a PRP steering committee has
been formed by previously identified PRPs, the steering
committee's contact should be provided. [This information
will already be in special notice letters but will be needed
in demand letters that follow special notice.]
12. A statement that the recipient of the demand letter should
contact EPA within a specified period (normally thirty days)
to discuss the recipient's liability.
13. The name, address, and telephone number of a representative
of EPA whom the recipient should contact.
14. A warning that if the recipient fails to contact EPA within
the specified time, a suit may be filed in the appropriate
U.S. District Court for recovery of the costs incurred.
15. For small administrative cost recovery actions, a draft of
EPA's proposed consent order for the cost recovery claim
should be enclosed with the demand for payment.
IV. ROLES AND RESPONSIBILITIES OF REGIONS
A. Pre-Demand Activities
When Regions are planning enforcement work at a site, full
consideration should be given to ensuring that activities
supporting the cost recovery action be incorporated in the
litigation strategy. This includes consideration of sufficiency
of resources, timing of written demands, compilation of
documentation and cost summaries on a periodic basis, etc. Regions
are expected to incorporate issuance of written demand into CERCLIS
or other case tracking systems a Region uses for cost recovery
purposes. For timing of issuance of demand, Regional Branch Chiefs
should track the sites for which they are responsible.
B. Documentation/Interest Calculation
1. Documentation; EPA Headquarters, the Region, DOJ, other
federal agencies, and states each have certain responsibilities in
organizing cost documentation information. Cost documentation
responsibilities have been delegated to the Regions such that
Regions now document all costs for sites in their respective areas.
The "Procedures for Documenting Costs for CERCLA S 107 Actions"
(January 30, 1985, OSWER Directive No. 9832.4) describes the roles
and responsibilities of each office in preparing cost documentation
10
-------
OSWER # 9832.18
for litigation (this guidance is being updated). Roles and
responsibilities for developing demand letters are inter- and
intra-office and as such need to be coordinated.
For most demands, a current automated transaction report
(e.g., Software Package of Unique Reports (SPUR) or CDMS reports)
will adequately document direct costs, including pre-1986
contractor expenditures. CDMS reports may also calculate interest.
As discussed below, amounts in automated reports should be checked
for completeness and supplemented by indirect costs, interest, and
other Agency costs.
The following information should be available prior to
issuance of a demand:
o A current automated transaction report for the site,
o An indirect cost calculation, and
o An interest calculation (if not in the automated report).
This information forms the basis of a good faith cost estimate that
can be used to begin settlement negotiations for costs. Accuracy
of the estimates should be verified before good faith negotiations
commence. The specified amount for written demand in special
notice letters may be based on a reasonable estimate at the
Region's discretion. Estimates may include the following items:
intramural costs, extramural costs, indirect cost calculation,
historic and annual cost allocations, oversight costs, and
interest. The Regional Financial Management Office may be of
assistance in answering questions about billing.
Demands based on automated transaction reports mu^t be made
with recognition that there may be delays in billings and payments
which therefore are not posted in the system, and that only
expenditures incurred through the last day of the preceding month
are included. In addition, costs incurred by other Agencies such
as DOJ and ATSDR (for health studies) are not included. To ensure
the accuracy of automated transaction reports, OSCs and RPMs should
review the automated transaction report data prior to issuance of
demand. For viable cases6 where the Region has reason to believe
that the report does not contain all data, the Region should locate
and review all cost recovery documents. Thus, care must be
exercised not to forego potential reimbursement by submitting
incomplete demands for payment. Demands are the Agency's best
6/ Viability of cases and factors for determination of
viability are discussed in the "Cost Recovery Strategy" (July 29,
1988 OSWER Directive number 9832.13).
11
-------
OSWER # 9832.18
approximation of costs incurred by EPA to date, and therefore,
should not be assumed to be the final statement of incurred costs
for reasons explained above.
If an Administrative Record7 file is available to the public,
the location of the file may be included in the demand. PRPs may
be interested in the specific breakout of costs that may be
available in the file. Quick and easy access to the file may help
expedite negotiations.
2. Interest: The interest rate is tied to 52-week U.S.
Treasury MK-Bills (MK-bills) that mature in early September of each
year. Like the securities from which the interest rate is derived,
interest will be compounded annually. On October 1 of each year,
outstanding receivables, which include interest accrued during the
previous fiscal year, will begin accruing interest at the new rate.
For additional information about interest rates and calculating
interest, see:
o "Interest Rates for Debts Recoverable Under the Super fund
Amendments and Reauthorization Act of 1986" (September
30, 1987, Comptroller Policy Announcement 87-17) or
o Comptroller Directive "Financial Management of the
Superfund Program" (July 25, 1988, Directive No. 2550.D);
or contact your Financial Management Office.
C. Preparing and Issuing the Demand
Roles and responsibilities for developing demand letters
involve full coordination among all Regional offices with
responsibilities for cost recovery, including the Waste Management
Division, Financial Management Office, and Office of Regional
Counsel. Regions may develop an internal written agreement to
assure implementation of roles and responsibilities for cost
recovery, including issuance of demands.
The demand should be sent certified mail, return receipt
requested. The return receipt should be included with a copy of
the demand in the site file.
71 The Administrative Record is the body of documents upon
which the Agency based its selection of a response action. For
additional information about administrative records, see the
"Guidance on Administrative Records for Selecting CERCLA Response
Actions," December 3, 1990, OSWER Directive No. 9833.3A-1.
12
-------
OSWER # 9832.18
D. Use of Recipient List
Written demand should be issued to all known, viable PRPs.
When the list of recipients of special notice letters as provided
in the "Interim Guidance on Notice Letters, Negotiations and
Information Exchange" (February 23, 1988, OSWER Directive No.
9834.10) is up-to-date, the special notice list may be used. When
not complete, it should be updated. At sites where special notice
letters are not sent, prior to referral to DOJ, separate demand
letters should be sent to PRPs. Before issuing a demand letter to
a PRP who has received only a general notice (without a demand),
the Region should determine whether it has sufficient evidence of
liability to make a demand.
E. States and State-lead Sites
EPA will be responsible for issuing written demand at state-
lead sites where Fund money was expended. Where EPA spends money
at a site, EPA will pursue cost recovery for that money. EPA
intends to coordinate all cost recovery action with states to avoid
split claims.
F. Payment
When payment is rendered in response to a written demand,
remittance should be made payable to the "EPA Hazardous Substance
Super fund" and sent to the Regional Super fund Lock Box, in
accordance with the EPA Office of the Comptroller Directive
"Financial Management of the Superfund Program" (July 25, 1988,
Directive No. 2550.D).
Inclusion in a formal legal document (e.g., an administrative
consent order issued by the Agency or a consent decree entered by
a court) of a requirement for payment of costs to EPA requires the
establishment of an "Accounts Receivable" in the Agency's
Integrated Financial Management System (IFMS), pursuant to Office
of the Comptroller Directive No. 2540, October 24, 1990. If,
however, a payment is received on demand, and no formal legal
document has been issued, an accounts receivable will be
established upon receipt of payment and entered as received.
G. Negotiation and Settlement
When a PRP responds to a written demand by expressing a desire
to negotiate EPA's claim, negotiations pursuant to CERCLA S 122(h)
may be appropriate and settlement discussions should be initiated
and carried out within a limited period of time. For negotiation
purposes only, Regions may wish to develop a breakout of costs
incurred (see Appendix B for an example). Additional information
on development of a negotiation team and redelegation issues may
13
-------
OSWER # 9832.18
be found on pages 22-25, 33-35, and 38-41, in "Superfund Cost
Recovery Strategy" (July 29, 1988, OSWER Directive No. 9832.13) and
pages 23-27 in "Cost Recovery Actions Under CERCLA" (August 26,
1983, OSWER Directive No. 9832.1).
H. Procedure in Event of No Response or No Settlement
When settlement negotiations fail, Regional management must
decide which sites to refer for judicial action under CERCLA S 107.
The "Superfund Cost Recovery Strategy" (July 29, 1988, OSWER
Directive No. 9832.13) lists the relevant factors to be considered
in determining whether to refer a case for cost recovery. If the
Region decides not to pursue a cost recovery action, the decision
must be documented in a cost recovery close-out memorandum.8
If no response is received to a demand letter, a follow-up
phone call or letter should be sent. If there is still no
response, a determination must be made whether the facts of the
case justify EPA's taking further steps to pursue the cost recovery
claim. As stated in the "Superfund Cost Recovery Strategy,"
Regions should generally anticipate developing cases for litigation
for all sites in which total costs of response exceeded two hundred
thousand dollars and negotiations for settlement were unsuccessful.
Sites in which total costs of response do not exceed two hundred
thousand dollars are also candidates for referral consistent with
the case selection criteria. The "Superfund Cost Recovery
Strategy" and the "Guidance on Documenting Decisions not to Take
Cost Recovery Actions" (June 7, 1988, OSWER Directive No. 9832.11)
further describe the case selection criteria.
When reimbursement of oversight costs is not made upon demand
or issuance of a bill (under a consent order or decree) , the
enforcement approach is dependent upon the underlying enforcement
document, if one exists. If a consent decree pro/ides for
reimbursement, a demand for stipulated penalties should be made in
accordance with the terms of the consent decree, and a motion
should be filed to enforce the decree. If work was performed
pursuant to a decree that did not provide for and did not release
defendants from oversight and other costs (past, for example), the
original action should be amended or a new action should be filed.
Stipulated penalties and, if necessary, a judicial referral should
be pursued in the case of non-payment for EPA costs, including
those for oversight activities, under an administrative order.
8/ "Guidance on Documenting Decisions not to Take Cost
Recovery Actions," (June 7, 1988, OSWER Directive number 9832.11).
14
-------
OSWER # 9832.18
V. DISCLAIMER AND FURTHER INFORMATION
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. They are not intended, and cannot
be relied upon, to create any rights, substantive or procedural,
enforceable by any party in litigation against the United States.
EPA reserves the right to act at variance with these policies and
procedures and to change them at any time without public notice.
For further information concerning this guidance, please
contact the Guidance and Evaluation Branch in the Office of Waste
Programs Enforcement at FTS (202) 475-6770.
15
-------
OSWER # 9832.18
APPENDIX A
MODEL DEMAND LETTER
[Date]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Addressee Name
Addressee Title and Corporation
Address
Address
Re: [Insert site name and mailing address]
Dear [Insert name]:
Pursuant to authority contained in § 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), 42 U.S.C. S 9604, [insert "in cooperation with" State
agency if appropriate] the United States Environmental Protection
Agency ("EPA") determined on [insert date, if available] that there
was a release or substantial threat of a release of hazardous
substances (as defined by § 101(14) of CERCLA) from a facility known
as: [insert facility name and address] ("facility").
Beginning on [insert date], EPA undertook response actions pursuant
to § 104 of CERCLA, 42 U.S.C. § 9604. The response actions taken
include the following: [Insert brief description including dates of
activities as lettered items below.]
a.
b.
[If notice has not been previously provided, insert the following
two paragraphs.] Under § 107(a) of CERCLA, 42 U.S.C. S 9607(a),
responsible parties may be held liable for all costs incurred by the
Government (including interest) in responding to any release or
threatened release of hazardous substances at the facility. Such
costs may include, but are not limited to, expenditures for
investigation, planning, response, enforcement activities, oversight
of response actions that are performed by parties other than EPA or
its contractors, and operation and maintenance of monitoring systems.
Responsible parties under CERCLA include current and former owners
or operators of the facility, persons who arranged for treatment
and/or disposal of any hazardous substances found at the facility, and
16
-------
OSWER f 9832.18
persons who accepted hazardous substances for transport and selected
the site or facility to which the hazardous substances were delivered.
EPA has evaluated evidence in connection with its investigation of the
[insert name] "facility and determined that you, as a [insert
addressee's relationship to the site], are a potentially responsible
party.
[If notice has been previously provided/ insert all or part of the
following paragraph/ consistent vith the operative facts]. On [insert
date] EPA provided [insert either "oral notice followed by written
confirmation dated " or "written notice"] to you that
[insert name of addressee] is a party who nay be liable for money
expended by EPA to take response action at the facility. At that
time, EPA also offered [insert name of addressee] and other
potentially responsible parties the opportunity to voluntarily take
the action necessary to abate any releases or threats of release of
hazardous substances from the facility or to reimburse EPA for actions
taken. Because you did not undertake the necessary actions, EPA
expended funds provided under the authority of CERCLA to clean up the
facility.
The cost to date of the response actions related to the site
through EPA funding is approximately $ [state direct and indirect
costs as specifically as possible]. This statement of expenditures
is preliminary, and does not limit EPA from providing a revised figure
if additional costs are identified.
[Note: In a judicial proceeding for cost recovery/ the Agency will
be required to prove the actual amounts expended. If a previous
demand letter was issued, or if a request for payment was included in
the notice letter/ costs previously demanded/ but not paid/ should
again be demanded. These costs should also reflect interest that has
accrued.]
In accordance with S 107(a) of CERCLA, demand is hereby made for
payment of the above amount plus any and all interest recoverable
under S 107 or any other provisions of law.
EPA anticipates that additional funds may be expended on the site.
Whether EPA funds the entire response action or simply incurs costs
by overseeing the parties conducting the response activities, you are
potentially liable for the expenditures plus interest.
Interest on past costs incurred shall accrue from the date of this
demand for payment or any earlier demand, whichever is earlier;
interest on future costs shall accrue from date of expenditure,
pursuant to CERCLA S 107(a), 42 U.S.C S 9607(a). Interest rates are
variable. The rate applicable on any unpaid amounts for any fiscal
year is the same as is specified for interest on investments of the
17
-------
OSWER f 9832.18
Hazardous Substance Superfund which is determined by the Department
of the Treasury. The current annual rate of interest on unpaid costs
is [x.xx%].
EPA is not required by CERCLA to issue a written demand for
recovery of prejudgment interest. However, the date a written demand
is made may be used by a court in determining the date from which
prejudgment interest begins to accrue.
For your information, we have enclosed a list of persons who are
receiving a letter seeking reimbursement of the costs identified
herein. While your liability is joint and several, you and other
parties may allocate among yourselves the costs to be paid to EPA.
Remittance must be made payable to the "U.S. EPA Hazardous
Substance Superfund" established pursuant to CERCLA in Title 26,
Chapter 98 of the Internal Revenue Code, and must reference the
[insert name] facility. Please send your remittance to:
EPA - Region
Attn: Superfund Accounting
P.O. Box [insert Superfund Lock Box]
Pittsburgh, PA 15251
[Note: for Region 4 and 5 the nailing address is slightly
different.]
If you desire to discuss your liability9 with EPA, please contact
[insert name and title] in writing, not later than thirty (30)
calendar days after the date of this letter. [Insert name] may be
contacted at [insert phone number].
In the event that you file for protection in the Bankruptcy Court,
EPA reserves its right to file a proof of Claim or application for
Reimbursement of Administrative Expenses against the bankrupt's
estate.
If you fail to respond to this demand within thirty (30) calendar
days, EPA will conclude that you have declined to reimburse the
Hazardous Substance Superfund for site expenditures. Conseguently,
EPA may pursue civil litigation against you, pursuant to CERCLA
§§ 106(a) and 107(a), 42 U.S.C. SS 9606(a) and 9607(a).
9 For small administrative cost recovery actions, a draft of
the proposed settlement document should be enclosed with the demand
for payment.
18
-------
OSWER f 9832.18
Sincerely,
[insert title]
United States Environmental Protection Agency
19
-------
OSWER # 9832.18
Attachment
List of Other Potentially Responsible Parties
1. Steering Committee Chairman
Name of the Committee
Corporation
Address
2. Name
Address
3. Name
Address
4. Name
Address
20
-------
OSWER # 9832.18
DEMAND PARAGRAPHS FOR INCLUSION IN SPECIAL NOTICE LETTERS FOR
REMEDIAL INVESTIGATION/FEASIBILITY STUDY (RI/FS) OR REMEDIAL
DESIGN/REMEDIAL ACTION (RD/RA).*
DEMAND FOR PAYMENT
With this letter, EPA demands that you reimburse EPA for its costs
incurred to date, and encourages you to voluntarily negotiate a
[consent order (not available for RD/RA)] [consent decree] in which
you and other PRPs agree to perform the [RI/FS] [RD/RA].
In accordance with CERCLA, EPA already has undertaken certain actions
and incurred certain costs in response to conditions at the site. The
cost to date of the response actions related to the site through EPA
funding is approximately $ [state direct and indirect costs to date
as specifically as possible]. In accordance with § 107(a) of CERCLA,
demand is hereby made for payment of the above amount plus any and all
interest recoverable under § 107 or under any other provisions of law.
As indicated above, EPA anticipates expending additional funds for
the [RI/FS] [RD/RA]. Whether EPA funds the entire [RI/FS] [RD/RA],
or simply incurs costs by overseeing the parties conducting the
response activities, you are potentially liable for all expenditures
plus interest.
Interest on past costs incurred shall accrue from the date of this
demand for payment or any earlier demand, whatever is earlier;
interest on future costs shall accrue from date of expenditure,
pursuant to CERCLA § 107(a), 42 U.S.C § 9607(a). Interest rates are
variable. The rate applicable on any unpaid amounts for any fiscal
year is the same as is specified for interest on investments of the
Hazardous Substance Superfund which is determined by the Department
of the Treasury. The current annual rate of interest on unpaid costs
is [x.xx%].
EPA is not required by CERCLA to issue a written demand for recovery
of prejudgment interest. However, the date a written demand is made
may be used by a court in determining the date from which prejudgment
interest begins to accrue.
In the event that you file for protection in the Bankruptcy Court,
EPA reserves its right to file a Proof of Claim or Application for
Reimbursement of Administrative Expenses against the bankrupt's
estate.
Remittance must be made payable to the "U.S. EPA Hazardous Substance
Superfund" established pursuant to CERCLA in Title 26, Chapter 98 of
21
-------
OSWER # 9832.18
the Internal Revenue Code, and must reference the [insert name]
facility. Please send your remittance to:
EPA - Region
Attn: Superfund Accounting
P.O. Box [insert superfund Lock Box]
Pittsburgh, PA 15251
[Note: for Region 4 and 5 the mailing address is slightly
different.]
* Excerpted with modifications from "Interim Guidance on Notice
Letters, Negotiations, and Information Exchange," Appendix C (October
17, 1987, OSWER Directive No. 9834.10)
22
-------
OSWER # 9832.18
DEMAND PARAGRAPHS FOR INCLUSION IN NOTICE OF POTENTIAL LIABILITY
AND EPA CONDUCT OF REMOVAL ACTION.*
DEMAND FOR PAYMENT
In accordance with CERCLA, EPA already has undertaken certain actions
and incurred certain costs in response to conditions at the site.
These response actions include [describe response actions at the
site]. The cost to date of the response actions related to the site
through EPA funding is approximately $ [state direct and indirect
costs to date as specifically as possible]. In accordance with
§ 107 (a) of CERCLA, demand is hereby made for payment of the above
amount plus any and all interest recoverable under § 107 or under any
other provisions of law. You are potentially liable for additional
costs plus interest if EPA conducts additional activities at the site.
Interest on past costs incurred shall accrue from the date of this
demand for payment or any earlier demand, whatever is earlier;
interest on future costs shall accrue from date of expenditure,
pursuant to CERCLA § 107(a), 42 U.S.C § 9607(a). Interest rates are
variable. The rate applicable on any unpaid amounts for any fiscal
year is the same as is specified for interest on investments of the
Hazardous Substance Superfund which is determined by the Department
of the Treasury. The current annual rate of interest on unpaid costs
is [x.xx%].
EPA is not required by CERCLA to issue a written demand for recovery
of prejudgment interest. However, the date a written demand is made
may be used by a court in determining the date from which prejudgment
interest begins to accrue.
In the event that you file for protection in the Bankruptcy court,
EPA reserves its right to file a Proof of Claim or Application for
Reimbursement of Administrative Expenses against the bankrupt's
estate.
Remittance must be made payable to the "U.S. EPA Hazardous Substance
Superfund" established pursuant to CERCLA in Title 26, Chapter 98 of
the Internal Revenue Code, and must reference the [insert name]
facility. Please send your remittance to:
EPA - Region
Attn: Superfund Accounting
P.O. Box [insert Superfund Lock Box]
Pittsburgh, PA 15251
[Note: for Region 4 and 5 the mailing address is slightly
different.]
23
-------
OSWER # 9832.18
* Excerpted with modifications from "Interim Guidance on Notice
Letters, Negotiations, and Information Exchange," Appendix C (October
17, 1987, OSWER Directive No. 9834.10).
24
-------
OSWER # 9832.18
DEMAND PARAGRAPHS FOR INCLUSION IN NOTICE OF POTENTIAL LIABILITY
AND OFFER TO NEGOTIATE FOR REMOVAL ACTION OR NOTICE OF POTENTIAL
LIABILITY FOR REMOVAL AND USE OF SPECIAL NOTICE NEGOTIATION
PROCEDURES.*
DEMAND FOR PAYMENT
With this letter, EPA demands that you reimburse EPA for its costs
incurred to date, and encourages you to voluntarily negotiate a
consent order or decree in which you and other PRPs agree to perform
the response action.
In accordance with CERCLA, EPA already has undertaken certain actions
and incurred certain costs in response to conditions at the site.
These response actions include [describe response actions at the
site]. The cost to date of the response actions related to the site
through EPA funding is approximately $[state direct or indirect costs
to date as specifically as possible]. In accordance with § 107(a) of
CERCLA, demand is hereby made for payment of the above amount plus any
and all interest recoverable under § 107 or under any other provisions
of law. You are potentially liable for additional costs plus interest
if EPA conducts additional activities at the site.
Interest on past costs incurred shall accrue from the date of this
demand for payment or any earlier demand, whichever is earlier;
interest on future costs shall accrue from date of expenditure,
pursuant to CERCLA § 107(a), 42 U.S.C § 9607(a). Interest rates are
variable. The rate applicable on any unpaid amounts for any fiscal
year is the same as is specified for interest on investments of the
Hazardous Substance Superfund which is determined by the Department
of the Treasury. The current annual rate of interest on unpaid costs
is [x.xx%].
EPA is not required by CERCLA to issue a written demand for recovery
of prejudgment interest. However, the date a written demand is made
may be used by a court in determining the date from which prejudgment
interest begins to accrue.
In the event that you file for protection in the Bankruptcy Court,
EPA reserves its right to file a Proof of Claim or Application for
Reimbursement of Administrative Expenses against the bankrupt's
estate.
Remittance must be made payable to the "U.S. EPA Hazardous Substance
Superfund" established pursuant to CERCLA in Title 26, Chapter 98 of
25
-------
OSWER # 9832.18
the Internal Revenue Code, and must reference the [insert name]
facility. Please send your remittance to:
EPA - Region
Attn: Superfund Accounting
P.O. Box [insert Superfund Lock Box]
Pittsburgh, PA 15251
[Note: for Region 4 and 5 the mailing address is slightly
different.]
* Excerpted with modifications from "Interim Guidance on Notice
Letters, Negotiations, and Information Exchange, "Appendix C (October
17, 1987, OSWER Directive No. 9834.10).
26
-------
OSWER # 9832.18
APPENDIX B
SAMPLE SUMMARY OF COSTS
U.S. EPA Headquarters
Payroll $XX.XX
Travel $XX.XX
U.S. EPA Region
Payroll (CDMS) $XX.XX
Travel $XX.XX
Indirect Costs $XX.XX
cooperative Agreement
(letter of credit documentation) [state]* $XX.XX
EPA contracts
Field Investigation Team $XX.XX
Technical Assistance Team $XX.XX
Enforcement Support $XX.XX
CLP $XX.XX
Interest as of (date) $XX.XX
*Be sure to reconcile differences with states before issuance.
27
-------
OSWER # 9832.18
APPENDIX C
INDEX OF EXISTING RELEVANT GUIDANCE
Guidance on Administrative Records for Selecting CERCLA Response
Actions. December 3, 1990, OSWER Directive No. 9833.3A-1. This
guidance addresses the procedures to ensure that EPA's administrative
records meet the following purposes: 1) to ensure that the basis for
the response selection is set forth in the record and that judicial
review concerning the adequacy of a response selection is limited to
the record; and 2) to serve as a vehicle for public participation in
the selection of the response action.
Superfund Cost Recovery Strategy, July 29, 1988, OSWER Directive No.
9832.13. This document sets forth EPA's case selection guidelines and
priorities; it emphasizes the advance planning necessary to initiate
cost recovery actions and describes the cost recovery process for
removal and remedial actions.
Financial Management of the Superfund Program, July 25, 1988. This
document establishes financial management policies unique to the
Superfund program which require accounting for costs by site and
activity for purposes of cost recovery and external reporting.
Revision of CERCLA Civil Judicial Settlement Authorities under
Delegations 14-13-B and 14-13-E. June 17, 1988, OSWER Directive No.
9012.10-A. Delegation 14-13-B allows a Regional Administrator to
exercise EPA's concurrence authority in settlement of certain
Regionally initiated CERCLA civil judicial actions and to request the
Attorney General to amend a consent decree. Delegation 14-14-E allows
Regional Administrators to exercise EPA's concurrence on de minimis
settlements under CERCLA § 122(g) with advance concurrence.
Guidance on Documenting Decisions Not to TaXe Cost Recovery Action,
June 7, 1988, OSWER Directive No. 9832.11. EPA has the discretion to
decide whether or not to pursue an action for recovery of any
unreimbursed Superfund monies; if the decision is not to pursue a
case, EPA must prepare a close-out memorandum. This guidance
discusses the contents of this close-out memorandum.
Removal Cost Management Manual, April 1988, OSWER Directive No.
9360.0-02B. EPA has developed this manual to provide comprehensive
cost management procedures for use by the On-Scene Coordinator and
other on-site personnel at Superfund removal actions.
Superfund Removal Procedures (Revision No. 3), February 1988, OSWER
Directive No 9360.0-03B. Revision Number Three contains detailed
explanations of cost control, cost documentation, use of the Removal
Cost Management Manual, and further guidance on the importance of cost
documentation as it relates to Superfund removal procedures.
28
-------
OSWER # 9832.18
Expansion of Direct Referral of Cases to the Department of Justice.
January 14, 1988, OSWER Directive No. 9891. 5A. In an effort to
streamline the enforcement of CERCLA and non-CERCLA cases, EPA has
prepared this guidance of updated policy and procedures expanding its
direct referral of cases to the Department of Justice.
State Superfund Financial Management and RecordXeeping Guidance,
November 1987, Office of the Comptroller, Financial Management
Division.
Guidance on Federal Buperfund Liens. September 22, 1987, OSWER
Directive No. 9832.12. This guidance provides analysis of statutory
issues regarding the nature and scope of federal liens under S 107(1)
of CERCLA, EPA policy on filing a federal lien to support a cost
recovery action, and procedures for filing a notice of lien, which
includes an example of a notice of a Superfund lien.
Potentially Responsible Party Search Manual. August 27, 1987, OSWER
Directive No. 9834.3-1A. This manual provides guidance to EPA and
state personnel in identifying potentially responsible parties (PRPs) ,
recognizing the elements of a completed PRP search, and describing in
detail 28 tasks which may be completed during a PRP search.
PRP Search Supplemental Guidance for Sites in the Superfund Remedial
Program. June 16, 1989, OSWER Directive No. 9834.3 2a. This
supplemental guidance describes PRP search planning and management
and the content of PRP search reports.
Cost Recovery Actions/Statute of Limitations. June 12, 1987, OSWER
Directive No. 9832.9 This memorandum updates EPA's policy on the
timely filing of cost recovery actions and clarifies the Agency's
position on priorities for removal cost recovery referrals.
Financial Management Procedures for Documenting Superfund Costs.
September 1986. This handbook establishes EPA's Agency-wide
procedures to ensure that accurate and adeguate controls exist for
documenting EPA's Superfund cleanup costs so that they fully reconcile
with EPA's Financial Management System.
Policy on Recovering Indirect costs in CERCLA CostRecovery Actions.
June 27, 1986, OSWER Directive No. 9832.5. This memorandum clarifies
EPA's policy on the recovery of indirect costs in CERCLA cost recovery
actions and provides guidance on deciding whether or not to seek
indirect costs.
29
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OSWER Directive 9842.2
•APR 3, 1331 OF,CE:J?
SOLID WAS'E AND £\i;-Gc\C •
MEMORANDUM
SUBJECT: CERCLA Implementation of Inspector Training Requirements
for OSCs/RPMs at the Intermediate Level in STEP and
First-line Supervisors
FROM: Bruce M. Diamond, Director.^^^7 /
Office of Waste Programs Enforcement //
/I ^
Timothy Fields, Jr., Acting Director ^4^,1+
Office of Emergency and Remedial Response
TO: Waste Management Division Directors
Regions I - X
Environmental Services Division Directors
Regions I - X
I. PURPOSE
The purpose of this memorandum is to provide guidance on how
two groups of CERCLA staff can meet or be excepted from the
training requirements of EPA Order 3500.1 on Inspector Training.
These two groups are: 1) OSCs/RPMs who were grandfathered into the
Structured Training and Evaluation Program (STEP) at the
Intermediate level and 2) First-line supervisors of OSCs/RPMs.
Previous guidances addressed the other groups of CERCLA staff to
whom the Order applied.
II. BACKGROUND
EPA Order 3500.1, Training and Development for Compliance
Inspectors/Field Investigators (June 29, 1988), established a Basic
Curriculum and requirements for the development of Program-Specific
Minimum Curriculum for Inspectors before they lead or conduct
inspections independently. This Order applies to all EPA personnel
who lead or oversee the conduct of compliance inspections/field
investigations on a full or part-time basis under any of EPA's
statutes, including CERCLA. The Order also applies to the first-
line supervisors of those staff who meet the Order's definition of
an Inspector.
-------
-2-
In November 1988, OSWER issued guidance (OSWER Directive
9842.0) on the applicability of the Order to CERCLA staff in the
Regions and provided a definition for determining the CERCLA staff
who are subject to the Order's requirements.
Additional guidance was provided in October 1989 (OSWER
Directive 9842.1) on CERCLA's implementation of the Order's
training requirements for most On-Scene Coordinators (OSCs) and
Remedial Project Managers (RPMs). It was stated in that memorandum
that guidance on the one group of OSCs/RPMs for which a policy had
not been formulated and first-line supervisors of OSCs/RPMs would
be forthcoming.
III. TRAINING REQUIREMENTS FOR INTERMEDIATE OSCs/RPMs
CERCLA tied fulfillment of the Order's requirements into its
own program-specific initiative, the OSC/RPM Support Program. One
component of this program is the Structured Training and Evaluation
Program (STEP). STEP established four levels of experience,
knowledge and skills required to manage progressively more complex
Superfund sites/incidents. These levels are: (1) Basic, (2)
Intermediate, (3) Advanced, and (4) Master. As stated in OSWER
Directive 9842.1, OSCs and RPMS grandfathered into STEP at the
Advanced and Master level were formally excepted from the
requirements of the Order, and staff at the Basic level would have
completed the OSC/RPM Basic Training Academy which fulfills the
Order's training requirements. It is the remaining group of
OSCs/RPMs grandfathered in at the Intermediate level which will be
addressed by this guidance.
Staff grandfathered in at the Intermediate level had to
demonstrate training and experience in specific CERCLA areas in
order to attain Intermediate status. However, these training and
experience requirements did not meet all of the legal fundamentals
training requirements in EPA Order 3500.1. Therefore, the OSC/RPM
staff designated at the Intermediate level should attend one of the
following three courses which have been identified as meeting the
legal fundamentals requirements in the order. They are: (1)
"Fundamentals of Environmental Compliance Inspections", or (2)
"Introduction to Superfund Enforcement" (or Region I's equivalent,
"Enforcement and Remedial Activities Under CERCLA"), or the
Superfund University Training Institute's "Legal Issues" course.
-------
IV. TRAINING REQUIREMENTS FOR FIRST-LINE SUPERVISORS
The Order provides that experienced first-line supervisors
and experienced OSCs/RPMs who were appointed to positions as First-
line supervisors after June 29, 1988, when the Order was signed,
may be formally excepted from the requirements in the Order.
However, new first-line supervisors of OSCs/RPMs are required to
meet the training requirements within one year of appointment to
the supervisory position.
CERCLA is recommending that new first-line supervisors of
OSCs/RPMs attend one of the three courses identified below in order
to satisfy the Order's requirements. They are: (1) "Fundamentals
of Environmental Compliance Inspections" or, (2) "Fundamentals of
Environmental Compliance Inspections for Supervisors" or, (3)
"Introduction to'Superfund Enforcement".
V. CONTACTS
For additional information on this guidance or the training
courses identified in this guidance, please contact Debby Thomas in
OWPE at FTS 398-8656. A summary of the exceptions and training
courses for all OSCs/RPMs and for first-line supervisors is
provided as an attachment.
Attachment
cc: Elaine Stanley, OWPE (OS-500)
Sally Mansbach, OWPE (OS-510)
Margaret Kelly, TIO (OS-110)
Marlene Suit, TIO (OS-110)
Becky Barclay, OE (LE-133)
Inspector Training Advisory Board
OSWER Regional Training Contacts
-------
SUMMARY OF GUIDANCE FOR CERCLA STAFF MEETING OR BEING EXCEPTED FROM
THE REQUIREMENTS OF EPA ORDER 3500.1
STAFF
New OSCs/RPMs
TIMEFRAME FOR
MEETING
REQUIREMENTS
Beginning 10/1/89,
any new OSC/RPM
hired
TRAINING OR
EXCEPTION POLICY
Must attend OSC/RPM
Basic Training
Academy
Experienced
OSCs/RPMs who have
attained the
ADVANCED or MASTER
level via the
Structured Training
and Evaluation
Program (STEP)
By 10/1/91
EXCEPTED from
requirements
Experienced
OSCs/RPMs who have
attained
INTERMEDIATE level
via STEP
By 10/1/91
Must complete 1 of
the following 3
courses:
"Fundamentals of
Environmental
Compliance
Inspections"
developed by OE
OR
"Introduction to
Superfund
Enforcement"
developed by OWPE
(or Region I's
equivalent,
"Enforcement and
Remedial Activities
Under CERCLA"
OR
"Legal Issues", a
Superfund
University Training
Institute (SUTI)
course.
-------
New first line
supervisors of
OSCs/RPMs who have
not previously been
OSCs/RPMs
themselves
Beginning 10/1/89,
within 1 year of
assuming
supervisory
position
Must complete 1 of
the following 3
courses:
"Fundamentals of
Environmental
Compliance
Inspection"
OR
"Fundamentals of
Environmental
Compliance
Inspections for
Supervisors"
OR
"Introduction to
Superfund
Enforcement"
Experienced 1st
line supervisors
(including those
who had been
experienced
OSCs/RPMs and were
then appointed to
positions as 1st
line supervisors
after 6/29/88)
By 10/1/91
EXCEPTED from
Requirements
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 20460
APR I 0 1991
MEMORANDUM
SUBJECT: Interim Agency Policy on Contribution Protection
Clauses in CERCLA Settlements
FROM: William A. White
Acting Associate Enforcement Counsel
Bruce Diamond, Director
Office of Waste Program Enforcement
TO: Regional Counsel, Regions I-X
Waste Management Division Directors
Regions I-X
In recent years, the negotiation of contribution protection
clauses has become a sticking point in settlement discussions
under1 the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA). To avoid any problems that may result
from inconsistent application of CERCLA's contribution protection
provisions, this memorandum delineates interim Agency policy on
the content of contribution protection clauses in administrative
and judicial settlements.
Section 113(f) (2) of CERCLA provides that:
A person who has resolved its liability to the United
States or a State in an administrative or judicially
approved settlement shall not be liable for claims for
contribution regarding matters addressed in the
settlement, (emphasis added).
CERCLA Sections 122(g)(5) and 122(h)(4), which respectively
address de minimis and administrative cost recovery settlements,
have very similar contribution protection language.
In some settlement agreements, the phrase "matters
addressed," which delimits the scope of contribution protection
afforded by the statute to settling parties, has been equated
with the phrase "covered matters," which typically defines the
reach of the United States' covenants not to sue. Use of these
similar phrases has the potential of confusing the scope of
contribution protection that will be afforded settling parties.
-------
In certain circumstances, the scope of the "matters addressed"
may not be the same as "covered matters."1
Keeping these concepts distinct is particularly important in
cases where sequential settlements are contemplated. Hence, in
the future, these two phrases should not be used interchangeably
in CERCLA administrative or judicial settlements, whether they
are embodied in orders or consent decrees. All administrative
and judicial CERCLA settlements that include contribution
protection language must distinguish these terms. Until a final
contribution protection policy is issued by the agency, whether
and how contribution protection relates to a covenant not to sue
will largely be a question of law to be determined by the courts.
The Agency may at its discretion choose to include language
in settlements restating the right as provided in CERCLA.
Standard contribution protection settlement language to be used
in such circumstances is attached.2 Except as provided above,
under no circumstances should government personnel provide, any
oral or written statements to potentially responsible parties
regarding the scope of contribution protection. If you have any
questions regarding this matter, please contact James Handley
(FTS 382-3060), or Leonard Shen (FTS 382-3107).
cc: Regional Counsel Branch Chiefs, Regions I-X
Superfund Program Branch Chiefs, Regions I-X
John C. Cruden, Chief, Environmental Enforcement Section,
Environment and Natural Resources Division, U.S.
Department of Justice
1 The draft CERCLA Model RD/RA Consent Decree (forthcoming)
does not use the concept of "covered matters" so as to avoid any
confusion between these two concepts.
2 Given the underlying intent of Congress in enacting
Section 122(g), it is possible that different language may be
appropriate for de minimis parties.
-------
OSWER Directive = 9S24.'"
Standard Settlement Language - November, 1990
Contribution Protection
With regard to claims for contribution against
[Settling Defendants] for matters addressed in this
[Order on Consent or Consent Decree], the Parties
hereto agree that the [Settling Defendants] are
entitled/ as of the effective date of this [Order on
Consent or Consent Decree], to such protection from
contribution actions or claims as is provided in CERCLA
section [ "Standard" AO or Consent Decree — 113(f)(2),
42 U.S.C. § 9613 (f) (2)]. [De Minimis AO or Consent
Decree — 122(g)(5), 42 D.S.C. § 9622(g)(5)].
[Administrative Cost Recovery Settlement — 122(h)(4),
42 U.S.C. § 9622(h)(4)].
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
",: . I
v ^r>
OSVER Directive •••• 983: .?
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Questions and Answers About the State Role in Remedy
Selection at Non-Fund-Financed Enforcement
//// ,,}#
R. Clay, Assistant Administrator
Regional Administrator
Regions I - X
I. PURPOSE
This memorandum1 describes circumstances under which States
may select and implement a remedy at National Priorities List (NPL)
sites without first obtaining EPA concurrence. Section 300.515(e)
of the National Contingency Plan (NCP), State involvement in
selection of remedy, specifically addresses the State role in
remedy selection. The NCP provides that a State may select a
remedy (and publish the proposed plan) without EPA concurrence at
non-Fund-financed State-lead enforcement NPL sites. This directive
defines "non-Fund-financed" in terms of State-lead enforcement NPL
sites2. Additionally, this directive explains when a State must
obtain EPA concurrence on a CERCLA remedy at an NPL site.
Certain States have requested guidance regarding the
situations under which a State may select and implement a remedy
without EPA concurrence. Generally, States and EPA Regions are
knowledgeable about the reciprocal concurrence process for Fund-
financed NPL sites, where EPA and States have corresponding roles
in recommending and implementing remedies. However, there
generally appears to be less awareness of situations where a State
may select and implement a remedy without EPA concurrence.
V The policies set out in this memorandum are not final
agency action, but are intended solely as guidance. They are not
intended, nor can they be relied upon, to create any rights
enforceable, by any party in litigation with the United states.
The Agency reserves the right to change this guidance at any time
without public notice.
2/ Enforcement sites are sites where responsible parties are
compelled, by order or decree, to perform response actions.
Prirttd on Rtcycltd Paper
-------
This memorandum explains certain sections of the NC? that are
pertinent to the State role in remedy selection. Regional staff
may help resolve questions about remedy selection requirements by
discussing information in this memorandum with appropriate State
staff. Open and direct communication between the Regional and
State offices on topics such as this greatly benefits the E?A/State
relationship and ultimately the success of site cleanups.
II. BACKGROUND
Subpart F of the NCP (40 CFR 300.500 et seq. ) discusses
requirements for State participation and involvement in CERCLA-
authorized response actions. It also includes the minimum
requirements for ensuring that all States are provided an
opportunity for "substantial and meaningful" involvement in the
initiation, development, and selection of remedial actions, as
mandated by CERCLA 121(f)(l).
As discussed in the preamble to the NCP (55 FR 8783, March 8,
1990) , EPA believes that to ensure consistency among remedies
implemented at sites, EPA retains final responsibility for remedy
selection at sites where Fund money or EPA enforcement authority is
used. However, to provide a "significant and meaningful role for
State involvement in the cleanup process," EPA adopted in the NCP
the reciprocal concurrence process for Fund-financed NPL sites. In
this process, a State prepares a ROD and must obtain EPA
concurrence and adoption of the remedy, or EPA prepares the ROD and
seeks State concurrence. However, for non-Fund-financed State-lead
enforcement sites, when a State proceeds under its own enforcement
authority and sources of funding other than the CERCLA Trust Fund3,
a State may select a remedy (and publish a proposed plan) without
EPA concurrence. Section 300.515(e)(2) of the NCP specifically
addresses EPA and State involvement in the preparatic of a ROD.
III. QUESTIONS AND ANSWERS ABOUT THE STATE ROLE IN REMEDY
SELECTION
QUESTION 1: Under what circumstances can a State select a remedy
without EPA concurrence at an NPL site?
ANSWER: States may select the remedy (and publish a proposed
plan) , without EPA concurrence, at NPL sites when the State has
been assigned the lead role for response action at the site, the
State is taking an enforcement action acting under State law, and
the State is not receiving funds from the Trust Fund for response
activities at the site. According to the NCP, "response as defined
V Trust Fund means the Hazardous Substance Superfund
established by section 9507 of the Internal Revenue Code of 1986.
-------
CSWER Directive = 9321.;-
by 101(25) of CERCLA, means remove, removal, remedy, or remedial
action, including enforcement activities related thereto." The
diagram in Attachment I summarizes the circumstances under which a
State r.ay select a remedy without EPA concurrence. These sites are
referred to as "non-Fund-financed State-lead enforcement sites."
QUESTION 2: When may a State proceed under its own enforcement
authority at an NPL site?
ANSWER: During annual EPA/State consultations, EPA may agree to
designate a State the lead at an NPL site for a non-Fund-financed
enforcement action. This means that EPA and the State agree that
response actions will be conducted pursuant to State law and funded
by PRPs and, if necessary (for enforcement activities) , by the
State itself. More specifically, 300.505(d)(3) states "(i)f a
State is designated as the lead agency for a non-Fund-f inanced
action at an NPL site, the Superfund Memorandum of Agreement shall
be supplemented by site-specific enforcement agreements between EPA
and the State which specify schedules and EPA involvement." EPA
may take back the lead from a State if the State does not comply
with the EPA/State agreement.
Where EPA and a State do not agree that a site is a non-Fund-
financed State-lead site, the State may still attempt to proceed
with response actions under its own authority without funding from
the Trust Fund. However, there is a potential for conflict with
EPA response actions where no lead designation has been made,
especially at NPL sites. Further, EPA is not bound by State
response actions and may decide to take a CERCLA response action
after the State has acted. Additionally, under CERCLA 122(e)(6),
once a Federally-approved RI/FS has been initiated at a site, no
PRP may undertake any remedial action at the site unless the
remedial action has been authorized by EPA. Thus, State-ordered
PRP remedial actions may not proceed post-Federally-approved RI/FS
without EPA authorization. If EPA decided to designate a State as
lead for post-RI/FS remedial actions, the lead designation may
include a CERCLA 122(e)(6) authorization for PRPs to proceed with
remedial action at the site as prescribed by the lead agency.
QUESTION 3: For a State enforcement-lead NPL site to be "non-Fund-
financed" does it mean that EPA has not spent Trust Fund money at
the site?
ANSWER: No. There are probably few, if any, NPL sites where EPA
has not spent Trust Fund money. For example, EPA has probably
funded, through the Trust Fund, PA/SIs at NPL sites. Previous EPA
funding at a site, regardless of the amount, does not determine
whether a site is "non-Fund-financed."
-------
CSWER Directive = 333 1.5
QUESTION 4: For a State enforcement-lead NPL site to be "ncn-Fur.d-
financed," does it mean that there will be no future EPA fur.dir.g
through the Trust Fund at the site?
ANSWER: Yes. If an NPL site is "non-Fund-f inanced, " EPA has r.o
plans or expectations of providing funds via the Trust Fund for
site-specific enforcement actions and other response actions (i.e.,
cooperative agreement money) to the State. The term "non-Fund-
financed" as it pertains to State enforcement-lead sites and State
remedy selection refers to site-specific money. Receipt of Core
Program money, which is for non-site-specific activities (e.g.,
training) , does not preclude the site from being "non-Fund-
financed." All non-site-specific activities that are necessary to
support a State's Superfund program are eligible for Core Program
money.
QUESTION 5: How is a site designated as a State enforcement-lead
NPL site by EPA?
ANSWER: EPA, during annual consultations with the States, may
designate a State as enforcement-lead if the Agency deems it
appropriate (and if the State agrees). However, a State may not
designate itself as lead agency at an NPL site without EPA
approval.
In considering whether a site should be designated as a state-
lead enforcement site, EPA will take into account whether EPA has
invested substantial resources at the site beyond the PA/SI and
listing process (e.g., whether EPA has completed the RI/FS).
Significant investment of EPA resources at a site may argue against
reassigning a lead designation from EPA to a State. EPA plans to
develop detailed guidance to assist Regions in determining when a
State may be enforcement-lead.
QUESTION 6: May the State select the remedy without EPA
concurrence at Fund-financed State-lead sites (where the Trust Fund
is paying for response actions)?
ANSWER: No. Remedies selected (and proposed plans drafted) by a
State at a Fund-financed site (e.g., where the Trust Fund is paying
for enforcement support or other response actions) must be approved
and adopted by EPA before the remedy can be implemented (or the
proposed plan can be published). Similarly, EPA must obtain State
assurances under 104 before EPA can proceed with a Fund-financed
remedy.
IV. CONCLUSION
There are circumstances where the State may select a remedy
(and publish the proposed plan) without EPA concurrence. In some
-------
OSWER Directive * 3331.9
situations, the State may be acting independently of EPA. However,
when one governmental entity (EPA .or State) acts independently of
the other, conflicts can arise which adversely affect the quality
and timing of response actions at a site. In addition, without
EPA/State coordination and cooperation at a site, unnecessary
conflict and duplication of effort may occur. Therefore, pursuant
to § 300.505(d)(1) of the NCP, EPA and States should meet in the
early stages of response actions at a site to determine site
priorities and make lead and support agency designations.
If you have questions regarding this directive, please contact
Lynda Priddy of the Office of Waste Programs Enforcement at FTS
(202) 475-8727 or mail code OS-510.
Attachment
cc: Directors, Waste Management Division
Regions I,. IV, V, VII
Directors, Hazardous Waste Management Division
Regions III, VI, VIII, IX
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Division
Region X
CERCLA Enforcement Branch Chiefs, Regions I - X
CERCLA Enforcement Section Chiefs, Regions I - X
Regional Counsels, Regions I - X
-------
State Selection of Remedy at NPL Sites
Superfund
money be
State
designated
lead (with PRPs
uthorized to procee
under State
order)?
EPA selects remedy or must
approve the state recommendation.
State may select a remedy under
State law, but a potential conflict
with an EPA remedy exists
(especially at NPL sites); further, if
section 122(9)(6) applies, PRP may
not undertake remediation without
EPA authorization.
State may select remedy, under
State law, without EPA
concurrence.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 7 1991
MEMORANDUM
SUBJECT: Model Informatfiorfial
FROM: \\n/Don R. Clay _
v\V Assistant Administ]
OF MCE OP
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive Xo. 9834.16
otice Letter to Local Governments
•ator
TO: V Regional Administrators
\ Regions I-X
This memorandum transmits to you a model letter that provides
information to municipalities and other local governments about
EPA's activities at a Superfund site. The purpose of the model
letter is to inform these parties about potential Superfund actions
in which they might have an interest and to provide relevant
information about the site. The model letter can be used now, but
we ask that you review it and provide us with your suggestions for
improvement, particularly in assuring that it is informational and
not intimidating. If there are any provisions which you think
present serious problems, please contact us immediately.
On December 12, 1989, EPA published the "interim municipal
settlement" policy in the Federal Register, 54 FR 51071, Dec. 12,
1989. The policy clarifies how EPA will address municipalities
and municipal wastes in the Superfund settlement process. Although
the policy addresses many issues concerning a municipality's
involvement in the CERCLA enforcement process, the policy does not
discuss how to provide information to municipalities that do not
receive general or special notice letters. Municipalities in these
situations may not receive important information about EPA's
enforcement activities at the site. Other govenrmental entities
who have no potential liability may also have an interest in the
activities being undertaken at a site. This letter may be used to
inform these parties of EPA's activities at a Superfund site.
In comments on the Interim Municipal Settlement Policy and
elsewhere, the International City Management Association and the
National League of Cities have requested that municipalities be
provided with the information contained in the model letter. In
addition, the Administrator, William Reilly, recently assured the
National League of Cities that such information would be provided.
Therefore, I strongly urge you to use this letter in
appropriate circumstances. I also urge you to share, to the
Printed on Recycled Paper
-------
maximum extent practicable, EPA's information about the site with
any municipality or other local government that may be associated
with or otherwise have an interest in the site.
I hope you find the model letter useful. For more information
about the model letter or to provide us with your comments, please
call me or have your staff call Natalie Eades at (Mail Code - OS-
510) FTS 245-3655. Thank you for your attention to this matter.
Attachment
cc: Waste Management Division Directors
CERCLA Branch Chiefs
Bill White, Office of Enforcement
-------
[Model Informational Notice to Local Governments of Response
Actions]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region [ ]
[Address]
NOTICE OF EPA ACTIONS UNDER THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA)
[Date]
[Name and address of Municipality or other local government]
RE: [name and location of the site]
Dear [Send to the mayor and/or city manager; cc: city attorney or
other appropriate official]:
This letter informs you that the United States Environmental
Protection Agency ("EPA") is conducting response actions under the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) at the [name of the site] in [county] , [State] (the
"Site"). CERCLA, commonly known as "Superfund", gives EPA the
authority to take actions to protect public health, welfare, and
the environment, and to abate or minimize the impacts of a release
or threat of release of a hazardous substance at a Superfund site.
In addition, it gives EPA the authority to sue for recovery of any
funds spent to clean up a Superfund site.
Because of the potential impact on your community, the [City,
Town, County] of [ ] (the "City", "Town" or "County") is
encouraged to stay informed about the activities relating to the
Site. This letter provides you with information to assist you in
following these activities.
This letter is not a notice of potential liability under
section 107(a) of CERCLA. However, EPA's information indicates
that the City may have an interest in the Site. [Insert a sentence
indicating what type of interest the city has in the site.]
Optional language (To the Regions: If you have information
indicating that the City might be liable include this language, if
-------
not use your best judgment as to whether or not to include this
language): [If, in the future, EPA obtains site-specific
information indicating that you are a potentially responsible party
(PRP), you may receive notice to that effect by a separate letter.
This letter is simply to inform the City of EPA's activities at the
Site and to provide the City with certain background information
about the Site.]
Optional language (To the Regions: Please include this
language if you believe that the City might not be aware of this
possibility) : [Although EPA might not name you as a PRP, you
should be aware that other PRPs may take the position that the City
is responsible for costs associated with clean-up activities
undertaken at the site and may pursue the City for a share of the
costs.]
Given the City's potential interest in activities at the Site,
EPA encourages the City to remain fully aware of the actions to be
implemented at the site. In particular, we encourage the City to
review all documents produced and to comment on them, where
appropriate.
To assist the City in following the activities relating to
the Site, we are providing you with some background information.
EPA [will perform] [has performed] the following activities at [the
site]: [note to the Regions: This letter should be sent as soon
as possible after you learn of the municipality's interest.
Depending on when this letter is sent out, it might be appropriate
to send subsequent letters advising of the progress of response
actions.] [Briefly describe EPA's involvement at the site,
including for example]:
1. On or about , 19 , EPA completed a
preliminary assessment/site investigation (PA/SI). The
PA/SI revealed a release or threat of release of
hazardous substances from the site.
2. On , 19 , ( Fed. Reg. ),
pursuant to section 105 of CERCLA, 42 U.S.C. § 9605, EPA
placed [proposed to place] the site on the National
Priorities List, set forth at 40 C.F.R. Part 300,
Appendix B.
3. From about , 19 , to about ,
19 , EPA [or the PRPs] undertook a Remedial
Investigation and Feasibility Study (RI/FS) for the Site
pursuant to CERCLA and the National Contingency Plan, 40
C.F.R. Part 300. The purpose of the RI/FS was to define
the nature and extent of contamination at the site and
to identify alternatives for remediating the site.
-------
4. Pursuant to section 117 of CERCLA, 42 U.S.C. § 9617, EPA
published notice of the completion of the feasibility
study and of the proposed plan for remedial action on
, 19 , and provided an opportunity for public
comment on the proposed remedial action.
5. EPA's final decision on the remedial action to be
implemented at the site is embodied in a "record of
decision" (ROD) that was executed on , 19 .
[modify as appropriate to account for multiple ROD's, ROD
amendments, ESD's]
6. On or about j , 19 , EPA began a Remedial
Design/Remedial Action(RD/RA) to design and implement
the remedy selected in the Record of Decision.
EPA also has prepared [or is preparing] the following
information about the site and potentially responsible parties:
1. A preliminary list of names and addresses of those PRPs
who have received notice letters. Inclusion on, or
exclusion from, the list does not constitute a final
determination by EPA concerning the liability of any
party for the release or threat of release of hazardous
substances at the Site.
2. To the extent such information is available, a list of
the volume and nature of substances contributed by each
PRP. This list is preliminary and subject to revisions
based upon new information as, and if, it becomes
available.
3. A ranking by volume of the substances at the facility,
to the extent such information is available.
4. A fact sheet describing the Site.
Pursuant to section 113(k) of CERCLA and Subpart I of the
National Contingency Plan, EPA will establish an administrative
record that contains the documents which form the basis of EPA's
decision for the selection of a response action at the Site. The
administrative record files, which contain the documents related
to the response action selected for the Site, [will be] [are]
available to the public for inspection and comment. The
administrative record file is located in both the EPA Regional
Office or other central location and is also available at [name of
site]. [Include an approximate date when it will be available, and
the location of the files.]
The matters contained in this letter are intended solely for
notification and information purposes. They are not intended to
be and can not be relied upon as final EPA positions.
-------
If you have any questions about this letter, please contact
( ) . You may also obtain general background information about
Superfund by calling the Superfund hot line at 1-800-424-9346.
Sincerely,
[Division Director]
-------
USB.
UNITED STATES ENVIRONMENTAL PROTECTION AGE\C
«'• 45-ii NG TON DC 23-56C
JUN 20 199!
OSWER Directive No. 9833.2c
MEMORANDUM
SUBJECT:
FROM:
TO:
Evaluation of, and Additional Guidance on, Issuance of
Unilateral Administrative Orders (UAOs) for RD/RA
Bruce M. Diamond, Director—^;;•-J
Office of Waste Programs Enforcement
William A. White
Associate Enforcement Counsel
Office of Enforcement/Superfund
Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III and VI
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Regional Counsel, Regions I-X
The purpose of this directive is to present you with the
results of a recent evaluation conducted by the Office of Waste
Programs Enforcement (OWPE) of the selection process EPA uses in
issuing UAOs to Potentially Responsible Parties (PRPs) for RD/RA
under CERCLA; and, based on the evaluation, to give further
guidance on the process we should use to select recipients of UAOs.
The evaluation was requested by the Deputy Administrator, who
was concerned about criticisms expressed by some PRP groups about
which PRPs at a site receive UAOs. There have been complaints, for
example, that EPA unfairly singles out "deep pockets" when issuing
UAOs.
The evaluation consisted both of interviewing Regional
managers to determine their approach to issuing orders, and of
examining each order issued in FY 1990 to determine the numbers of
PRPs issued general notice, special notice, and UAOs, and the
reasons for any discrepancies among these numbers.
-------
Findings
Overall, the process Regions are using to select PRPs for UAO
issuance appears to be reasonable and fair. Not all PRPs
identified at a site are routinely included when UAOs are issued,
but the reasons for selection appj^r p to ..Delate to legitimate
matters of enforceability and sound enforcement discretion.
The evaluation found that in the majority of cases, UAOs were
issued to fewer than all the PRPs given general or special notice
at a site. UAOs were issued to all PRPs identified for the site
at 10 out of the 44 sites for which UAOs for RD/RA were issued in
FY 1990. For these 10 sites, the number of PRPs is low (fewer than
10 PRPs).
At the other 34 sites, where UAOs were issued to fewer PRPs
than were given either general or special notice, the difference
between the number of PRPs given notice and those issued orders
varies considerably. In some cases the discrepancy is very small;
for example, at one site all but one of the ten PRPs issued special
notice received UAOs. In other cases the difference is very large:
as few as a dozen PRPs may be given orders out of several hundred
PRPs given general notice.
The results of both the survey of FY 1990 UAOs and the survey
of Branch Chiefs are consistent regarding the most important
factors in determining which PRPs receive UAOs. Strength of the
liability case and financial viability were given as the two most
important factors by the Branch Chiefs, and the individual surveys
of each site revealed that these were the two most frequent reasons
given for PRP selection. Also consistent between the surveys is
the relative significance of these two factors: strength of the
liability case is the foremost consideration for Branch Chiefs, and
it is given as a factor at over twice as many sites as viability.
Overall, strength of the liability case is a determinative factor
in selecting among PRPs to receive orders in three-fourths of the
cases in which fewer than all PRPs received orders.1
Other important factors identified both in the survey of
Branch Chiefs and in individual orders include contribution by
volume, administrative practicality, and separate settlements.
Volumetric contribution was the third most frequently given factor
in explaining selection at sites. Clearly, there is a connection
between this factor and administrative practicality, and both are
1 This does not mean that liability was not considered in the
remaining one-fourth of the cases. Liability is always considered
in issuing UAOs, but in a quarter of the cases other factors (e.g.,
viability or administrative practicality) were responsible for the
decision not to issue an order to a given PRP.
-------
consistent with EPA guidance on use of UAOs, which suggests issuing
orders to the largest manageable number of PRPs. In addition, in
several cases fewer PRPs were issued orders than were given notice
because the remaining PRPs settled separately for a portion of the
cleanup or costs involved.
The evaluation also revealed that recipients of orders
generally are responsible for a large majority of the waste covered
by the orders. Although not required under CERCLA's scheme of
joint and several liability, EPA generally strives to include those
PRPs to whom the bulk of the waste at issue may be attributed.
Conclusions and Follow-up
Our evaluation indicates that there is not a serious problem
with the way Regions are using UAOs for RD/RA work. Consideration
of such factors as liability, viability, and, in certain cases,
volumetric contribution makes sense before we commit to the serious
action of issuing unilateral orders.
We have initiated some follow-up work to determine whether
bias toward large, financially solvent responsible parties may be
built into the system earlier in the PRP search process. There may
be good reasons to consider such PRPs, who tend to be large
contributors and for whom there are usually good records of waste
transactions. We want to be sure, however, that during the PRP
search large, solvent parties are not arbitrarily singled out to
the exclusion of other contributors or liable parties. Preliminary
results of an examination of the PRP search process have indicated
that such a bias does not exist.
Additional Guidance
Based on the findings of the evaluation, we are not
recommending any essential changes to the current process by which
PRPs are selected for receiving orders. Regions appear to be
selecting recipients of UAOs appropriately and in accordance with
the "Guidance on CERCLA Section 106(a) Unilateral Administrative
Orders for Remedial Designs and Remedial Actions," OSWER Directive
No. 9833.0-la.
We encourage you, however, to ensure that you avoid a bias,
or even the appearance of a bias, toward issuing orders only to
large, "deep pocket" PRPs. Although many such PRPs may be large
contributors and may be able to pay for response, we must continue
to make reasonable efforts to identify all parties with CERCLA
liability at a site and to arrange for or compel cleanup from as
many of them as practicable. On the other hand, we must ensure
that we have adequate evidence against all parties to whom we issue
orders, and we should consider the economic viability of order
-------
recipients. Where it is necessary to select among liable, viable
PRPs, volumetric contribution is a legitimate factor in reducing
the named parties to a practicable number. Other factors, of
course, may also enter into a decision to select among PRPs.
It is important to note that questions have also been raised
about issuing orders to parties at the other end of the spectrum
— clearly non-viable parties, such as destitute or nearly
destitute individuals, who may be getting orders that in formal
terms require them to perform cleanup work costing millions of
dollars. Please be aware that the above-referenced guidance
suggests that orders involving expenditures of money should
generally not be issued to PRPs that lack any substantial
resources.
Again, this is general advice, and site-specific factors may
make inclusion of persons of little means appropriate in individual
cases. In particular, it may be useful to issue UAOs to site
owners regardless of their financial circumstances. However, in
such cases it may sometimes be preferable to issue separate orders
for access or cooperation to indigent parties rather than to
include them in an overall response order.
Similar caution is advisable when dealing with other
distressed or disadvantaged individuals who, from an equitable
point of view, may not be appropriate recipients of a unilateral
order.
Further Information
If you have any questions about the evaluation and follow-up
or about the guidance presented here, please call us or have your
staff contact Arthur Weissman in the Office of Waste Programs
Enforcement at FTS 382-4826 or Leonard Shen in the Office of
Enforcement at FTS 382-3107. We thank you for your cooperation in
this matter, and for your sensitivity to the important issues
involved.
Disclaimer
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. They are not intended and cannot
be relied upon to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. EPA
reserves the right to act at variance with these policies and
procedures and to change them at any time without public notice.
cc: Regional Enforcement Branch Chiefs
Regional Counsel Branch Chiefs
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
JUN 2 I i99i
MEMORANDUM
SUBJECT:
FROM:
Model CERCLA RD/RA Consent Decree
Raymond B. Ludwiszewski4"*~v
Acting Assistant Administrator f.
Don R. Clay $fx--*'/t
Assistant Administrate!:
Response
Enforcement
r Solid Waste and Emergency
TO:
Richard B. Stewart
Assistant Attorney General for the Environment and
Natural Resources, U.S. Department of Justice
Regional Administrators
Regions I-X
Attached is the interim final Model CERCLA RD/RA Consent
Decree. As discussed below, this document should be used as the
basis for fashioning remedial design/remedial action settlements
with potentially responsible parties under Sections 106, 107 and
122 of the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended. The Model Consent Decree provides
boiler-plate language for most provisions in order to standardize
CERCLA consent decrees as much as possible and expedite
settlements. The United States will commence negotiations with a
document which, for most provisions, is the same document the
government will insist on in a settlement because it reflects legal
and procedural terms that have been found acceptable to both the
Agency and the PRPs in a large number of situations.
The philosophy underlying the Model Consent Decree is
consistent with that espoused in the CERCLA Timeline prepared as a
result of the Superfund Management Review and in the Pre-Referral
Negotiations Procedures for Superfund Enforcement Cases. That
philosophy is to initiate and conclude RD/RA settlement
negotiations as expeditiously as possible and, ideally, within the
statutory 120-day special notice moratorium. See CERCLA Section
122(e)(2). The goal is to achieve a greater.number of settlements
in a more expeditious manner, on terms acceptable to the United
States and consistent with the intent of CERCLA, thereby permitting
more remedial work to proceed. Use of the Model Consent Decree is
designed to reduce the time and resources consumed during extensive
RD/RA settlement discussions by reducing across the board the
-------
number of issues the United states will negotiate with the PRPs.
In addition, use of the Model will reduce the amount of time spent
on internal government reviews of the document and will promote
national consistency.
In future RD/RA negotiations, EPA Regional Offices should
provide the PRPs with a proposed consent decree, based on the
Model, that reflects site-specific considerations.1 The Office of
Enforcement (OE) and the Office of Solid Waste and Emergency
Response (OSWER) will support efforts by Regional Offices and the
Department of Justice (DOJ) to draft and negotiate settlement terms
that go beyond the Model's provisions in terms of protecting the
interests of the United States. The Regions should work with the
Department of Justice and, as appropriate, EPA Headquarters to
craft site-specific language before sending the draft to the PRPs.2
When the United States sends the consent decree to the PRPs, the
negotiation team should inform the PRPs that many provisions of the
consent decree are nationally consistent boiler-plate provisions
that the United States does not plan to negotiate.
The Model Consent Decree does not include those provisions
that may be necessary to handle the wide-range of special
situations which may arise in the context of structuring CERCLA
settlements. For example, some settlements may require the
inclusion of a covenant not to sue by the United States to de
minimis defendants. In addition, a trust fund or other PRP funding
mechanism may be appropriate in cases involving large numbers of
PRPs. The negotiation team members should work with their
respective managements to develop language for such provisions. If
the provision raises issues of national or precedential
significance or if the settlement would otherwise require
concurrence by EPA Headquarters, the Region should consult with OE
before offering it to or agreeing to it with the PRPs.
1 For examples of provisions that must be modified in each
case, we direct your attention to the definition of "Site" and
Section VI (Performance of the Work by the Settling Defendants).
The term "Site" must be carefully defined not only to take into
account the work to be performed at the Site but the scope of the
covenant not to sue that the United States typically provides the
Settling Defendants. In addition, the section of the decree
detailing the "Work" must be tailored to take into account the type
of remedy that will be implemented at the Site.
2 If the state will be a party to the consent decree, it is
critical for the United States' negotiation team to coordinate with
the state's representatives prior to commencement of negotiations
with the PRPs.
-------
In addition, as previously noted, while the presumptions are
than the Regions will use the Model as the basis for fashioning
settlements and that much of the document is considered to be
boiler-plate, Regions have the flexibility to adopt a baseline
approach to certain provisions that is more stringent than the
Model. Moreover, except as provided below and consistent with
current Agency delegations, the Regions may, in conjunction with
the Department of Justice, modify provisions of the Model in
developing the proposed consent decree in a particular case.
With respect to those provisions of the Model Consent Decree
that embody issues of national significance, the Regions must
consult with Headquarters before offering or agreeing to any
changes that would result in a significant deviation from national
policy. The following provisions fall into this category: Access,
Contribution Protection, Covenants, Dispute Resolution, Force
Majeure, Additional Response Actions (Section VII of the Model
Consent Decree), Certification of Completion, Stipulated Penalties
(structure of the provision, not the amount of penalties), and
Indemnification. The Department of Justice and EPA Headquarters
will respond to the Region as expeditiously as possible in order to
insure that negotiations are not delayed.
The U.S. EPA Periodic Review provision also involves issues of
national significance. However, in recognition of the case-
specific evaluation that must be performed with respect to the role
and importance of this provision in a given settlement, the Regions
are not required to consult with Headquarters with respect to
changes in this provision. Among the factors to be considered in
determining whether to include this provision are the completeness
and reliability of the remedy, the strengths and weaknesses of the
liability case against the defendants, and the scope of the
covenant not to sue that is given to the defendants in the
settlement. The Regions should work closely with the Department of
Justice in evaluating these factors and determining the
government's final position in this provision in a given
settlement.
The attached Model Consent Decree does not include a paragraph
identifying the performance standards for the remedy. However,
these standards must be identified in the ROD and the SOW and those
documents will be attached to the consent decree and incorporated
therein. The attorneys and technical staff on the negotiation team
both must focus on those documents to ensure that the standards are
clearly stated and enforceable.
Of course, processing of any final settlements shall be in
accordance with current Agency delegations. Nothing in this
memorandum should be interpreted as modifying the existing waivers
of Headquarters' settlement concurrence authorities that are
embodied in the June 17, 1988 memorandum from the Assistant
-------
- 4 -
Administrators for the Office of Enforcement and Compliance
Monitoring and the Office of Solid Waste and Emergency Response.
Moreover, EPA Headquarters will continue its general policy of
referring any inquiries to Headquarters from PRPs or their counsel
regarding site-specific issues or negotiations back to the
appropriate Regional Office or the Department of Justice.
The attached Model Consent Decree and the procedures for its
use outlined in this memo shall be applicable to all sites for
which special notice letters are issued or a proposed consent
decree is sent to the PRPs beginning 60 days after the date of this
memorandum. For all other sites, the attached Model Consent Decree
is not applicable, and current negotiation positions and schedules
will not be affected by this Model. In particular, the Agency will
not re-negotiate provisions in on-going or concluded negotiations
which were previously agreed to with PRPs or in decrees lodged but
not yet entered.
If you have any questions regarding the Model Consent Decree,
please contact Sandra Connors in OE (382-3110) or Paul Connor in
OWPE (245-3656).
Attachment
cc: Donald Elliot, General Counsel
David Ryan, Comptroller
Henry Longest, Director, Office of Emergency and Remedial
Response
Bruce M. Diamond, Director, Office of Waste Programs
Enforcement
Regional Counsel, Regions I-X
Waste Management Division Directors, Regions I-X
-------
OSWER Directive Number 9835.17
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MODEL CERCLA RD/RA CONSENT DECREE
This model and any internal procedures adopted for its implementation
and use are intended solely as guidance for employees of the U.S.
Environmental Protection Agency. They do not constitute rulemaking
by the Agency and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law or in equity,
by any person. The Agency may take action at variance with this
model or its internal implementing procedures.
-------
i OSWER Directive Number 9835.17
TABLE OF CONTENTS
MODEL CERCLA RD/RA CONSENT DECREE
I. BACKGROUND 1
II. JURISDICTION 4
III. PARTIES BOUND 5
IV. DEFINITIONS 6
V. GENERAL PROVISIONS 11
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS ... 14
VII. ADDITIONAL RESPONSE ACTIONS 21
VIII. EP; ^ERIODIC REVIEW 23
IX. pU. .TY ASSURANCE. SAMPLING, and DATA ANALYSIS ... 24
X. AC j5S_ 26
XI. REPORTING REQUIREMENTS 28
XII. SUBMISSIONS REQUIRING AGENCY APPROVAL 31
XIII. PROJECT COORDINATORS 33
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK 35
XV. CERTIFICATION OF COMPLETION 36
XVI. EMERGENCY RESPONSE 39
XVII. REIMBURSEMENT OF RESPONSE COSTS 41
XVIII. INDEMNIFICATION AND INSURANCE 44
XIX. FORCE MAJEURE 47
XX. PISPUTE RESOLUTION 50
XXI. STIPULATED PENALTIES 54
XXII. COVENANTS NOT TO SUE BY PLAINTIFFS 58
XXIII. COVENANTS BY SETTLING DEFENDANTS 63
XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION .... 64
-------
ii OSWER Directive Number 9835.17
XXV. ACCESS TO INFQRMAT^QN 65
XXVI. RETENTION OF RECORDS 67
XXVII. NOTICES AND SUBMISSIONS 69
XXVIII. EFFECTIVE DATE 70
XXIX. RETENTION OF JURISDICTION 70
XXX. APPENDICES 71
XXXI. COMMUNITY RELATIONS 71
XXXII. MODIFICATION 71
XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 72
XXXIV. SIGNATORIES/SERVICE 73
-------
MODEL CERCLA RD/RA CONSENT DECREE OSWER Directive Number 9835.17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
DIVISION
UNITED STATES OF AMERICA [and )
STATE OF ] )
Plaintiffs, )
) CIVIL ACTION NO.
v. )
, INC., )
Defendants.
CONSENT DECREE
I. BACKGROUND
A. The United States of America ("United States"), on behalf
of the Administrator of the United States Environmental Protection
Agency ("EPA"), filed a complaint in this matter pursuant to
Sections 106 and 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. S§ 9606,
9607.
B. The United States in its complaint seeks, inter alia:
(1) reimbursement of costs incurred by EPA and the Department of
Justice for response actions at the Superfund Site in
, , together with accrued interest;
and (2) performance of studies and response work by the Defendants
at the Site consistent with the National Contingency Plan, 40
C.F.R. Part 300 (as amended) ("NCP").
-------
- 2 - OSWER DIRECTIVE NO. 9835.17
C. In accordance with the NCP and Section 121(f)(l)(F) of
CERCLA, 42 U.S.C. S 9621 (f) (1) (F), EPA notified the State of
(the "State") on , 19 of
negotiations with potentially responsible parties regarding the
implementation of the remedial design and remedial action for the
Site, and EPA has provided the State with an opportunity to
participate in such negotiations and be a party to this Consent
Decree.
[D. The State of (the "State") has also
filed a complaint against the defendants in this Court alleging
that the defendants are liable to the State under Section 107 of
CERCLA, 42 U.S.C. S 9607, and [list state laws cited in the State's
complaint], for: .]
E. In accordance with Section 122(j)(l) of CERCLA, 42 U.S.C.
S 9622(j)(l), EPA notified the [relevant Federal natural resource
trustee(s) ] on , 19 of negotiations with potentially
responsible parties regarding the release of hazardous substances
that may have resulted in injury to the natural resources under
Federal trusteeship and encouraged the trustee(s) to participate in
the negotiation of this Consent Decree.
F. The Defendants that have entered into this Consent Decree
("Settling Defendants") do not admit any liability to the
Plaintiff[s] arising out of the transactions or occurrences alleged
in the complaintfs].
G. Pursuant to Section 105 of CERCLA, 42 U.S.C. S 9605, EPA
placed the Site on the National Priorities List, set forth at 40
-------
- 3 - OSWER DIRECTIVE NO. 9835.17
C.FiR. Part 300, Appendix B, by publication in the Federal Register
on , 19 , Fed. Reg. ;
H. In response to a release or a substantial threat of a
release of a hazardous substance(s) at or from the Site, EPA [or
the Settling Defendants, other PRPs at the Site, or the State]
commenced on , 19 , a Remedial Investigation and
Feasibility Study ("RI/FS") for the Site pursuant to 40 C.F.R.
S 300.430;
I. EPA [or the Settling Defendants, other PRPs at the Site,
or the State] completed a Remedial Investigation ("RI") Report on
, , 19 , and EPA [or the Settling Defendants, other
PRPs at the Site, or the State] completed [issued] a Feasibility
Study ("FS") Report on , 19 ;
J. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA
published notice of the completion of the FS and of the proposed
plan for remedial action on , 19 , in a major
local newspaper of general circulation. EPA provided an
opportunity for written and oral comments from the public on the
proposed plan for remedial action. A copy of the transcript of the
public meeting is available to the public as part of the
administrative record upon which the Regional Administrator based
the selection of the response action.
K. The decision by EPA on the remedial action to be
implemented at the Site is embodied in a final Record of Decision
("ROD"), executed on , 19 , [on which the State had a
reasonable opportunity to review and comment/on which the State has
-------
- 4 - OSWER DIRECTIVE NO. 9835.17
given its concurrence.] The ROD includes [EPA's explanation for
any significant differences between the final plan and the proposed
plan as well as ]a responsiveness summary to the public comments.
Notice of the final plan was published in accordance with Section
117(b) of CERCLA.
L. Based on the information presently available to EPA [and
the State], EPA [and the State] believe[s] that the Work will be
properly and promptly conducted by the Settling Defendants if
conducted in accordance with the requirements of this Consent
Decree and its appendices.
M. Solely for the purposes of Section 113(j) of CERCLA, the
Remedial Action selected by the ROD and the Work to be performed by
the Settling Defendants shall constitute a response action taken or
ordered by the President.
N. The Parties recognize, and the Court by entering this
Consent Decree finds, that this Consent Decree has been negotiated
by the Parties in good faith and implementation of this Consent
Decree will expedite the cleanup of the Site and will avoid
prolonged and complicated litigation between the Parties, and that
this Consent Decree is fair, reasonable, and in the public
interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II. JURISDICTION
1. This Court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. SS 1331 and 1345, and 42 U.S.C.
SS 9606, 9607, and 9613(b). This Court also has personal
-------
- 5 - OSWER DIRECTIVE NO. 9835.17
jurisdiction over the Settling Defendants. Solely for the purposes
of this Consent Decree and the underlying complaint[s], Settling
Defendants waive all objections and defenses that they may have to
jurisdiction of the Court or to venue in this District. Settling
Defendants shall not challenge the terms of this Consent Decree or
this Court's jurisdiction to enter and enforce this Consent Decree.
III. PARTIES BOUND
2. This Consent Decree applies to and is binding upon the
United States [and the State] and upon Settling Defendants and
their [heirs,] successors and assigns. Any change in ownership or
corporate status of a Settling Defendant including, but not limited
to, any transfer of assets or real or personal property shall in no
way alter such Settling Defendant's responsibilities under this
Consent Decree.
3. Settling Defendants shall provide a copy of this Consent
Decree to each contractor hired to perform the Work (as defined
below) required by this Consent Decree and to each person
representing any Settling Defendant with respect to the Site or the
Work and shall condition all contracts entered into hereunder upon
performance of the Work in conformity with the terms of this
Consent Decree. Settling Defendants or their contractors shall
provide written notice of the Consent Decree to all subcontractors
hired to perform any portion of the Work required by this Consent
Decree. Settling Defendants shall nonetheless be responsible for
ensuring that their contractors and subcontractors perform the Work
contemplated herein in accordance with this Consent Decree, with
-------
- 6 - OSWER DIRECTIVE NO. 9835.17
regard to the activities undertaken pursuant to this Consent
Decree, each contractor and subcontractor shall be deemed to be in
a contractual relationship with the Settling Defendants within the
meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. S 9607(b)(3).
IV. DEFINITIONS
4. Unless otherwise expressly provided herein, terms used in
this Consent Decree which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them in
CERCLA or in such regulations. Whenever terms listed below are
used in this Consent Decree or in the appendices attached hereto
and incorporated hereunder, the following definitions shall apply:
"CERCLA11 shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
SS 9601 st sea.
"Consent Decree" shall mean this Decree and all appendices
attached hereto (listed in Section XXX). In the event of conflict
between this Decree and any appendix, this Decree shall control.
"Day" shall mean a calendar day unless expressly stated to be
a working day. "Working day" shall mean a day other than a
Saturday, Sunday, or Federal holiday. In computing any period of
time under this Consent Decree, where the last day would fall on a
Saturday, Sunday, or Federal holiday, the period shall run until
the close of business of the next working day.
"EPA" shall mean the United States Environmental Protection
Agency and any successor departments or agencies of the United
States.
-------
- 7 - OSWER DIRECTIVE NO. 9835.17
11 shall mean the (State Pollution Control
Agency or Environmental Protection Agency) and any successor
departments or agencies of the State.
"Future Response Costs" shall mean all costs, including, but
not limited to, direct and indirect costs, that the United States
[and the State] incur(s) in reviewing or developing plans, reports
and other items pursuant to this Consent Decree, verifying the
Work, or otherwise implementing, overseeing, or enforcing this
Consent Decree, including, but not limited to, payroll costs,
contractor costs, travel costs, laboratory costs, the costs
incurred pursuant to Sections VII, VIII, X (including, but not
limited to, attorneys fees and the amount of just compensation),
XVI, and Paragraph 84 of Section XXII. Future Response Costs shall
also include all costs, including direct and indirect costs, paid
by the United States [and the State] in connection with the Site
between [insert the date identified in the Past Response Costs
definition] and the effective date of this Consent Decree and all
interest on the Past Response Costs from [insert the date
identified in the Past Response Costs definition] to [the date of
payment of the Past Response Costs].
"National Contingency Plan" or "NCP" shall mean the National
Oil and Hazardous Substances Pollution Contingency Plan promulgated
pursuant to Section 105 of CERCLA, 42 U.S.C. S 9605, codified at 40
C.F.R. Part 300, including, but not limited to, any amendments
thereto.
-------
- 8 - OSWER DIRECTIVE NO. 9835.17
"Operation and Maintenance" or "0 & M" shall mean all
activities required to maintain the effectiveness of the Remedial
Action as required under the Operation and Maintenance Plan
approved or developed by EPA pursuant to this Consent Decree and
the Statement of Work (SOW) .
"Owner Settling Defendants" shall mean the Settling Defendants
listed in Appendix E.
"Paragraph" shall mean a portion of this Consent Decree
identified by an arabic numeral or an upper case letter.
"Parties" shall mean the United States [, the State of
_ ,] and the Settling Defendants.
"Past Response Costs" shall mean all costs, including, but not
limited to, direct and indirect costs and interest, that the United
States [and the State] incurred and paid with regard to the Site
prior to [the date of the most recent cost update].
"Performance Standards" shall mean those cleanup standards,
standards of control, and other substantive requirements, criteria
or limitations set forth in the ROD or Section _ of the SOW.
"Plaintiff [s]" shall mean the United States [and the State of
"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42
U.S.C. SS 6901 et sea, (also known as the Resource Conservation and
Recovery Act) .
"Record of Decision" or "ROD" shall mean the EPA Record of
Decision relating to the [Site or _ Operable Unit at the Site]
-------
- 9 - OSWER DIRECTIVE NO. 9835.17
signed on , 19 , by the Regional Administrator,
EPA Region , and all attachments thereto.
"Remedial Action" shall mean those activities, except for
Operation and Maintenance, to be undertaken by the Settling
Defendants to implement the final plans and specifications
submitted by the Settling Defendants pursuant to the Remedial
Design Work Plan and approved by EPA.
"Remedial Action Work Plan" shall mean the document submitted
by the Settling Defendants pursuant to Paragraph 12.a of this
Consent Decree and described more fully in Paragraph 12.b.
"Remedial Design" shall mean those activities to be undertaken
by the Settling Defendants to develop the final plans and
specifications for the Remedial Action pursuant to the Remedial
Design Work Plan.
"Remedial Design Work Plan" shall mean the document submitted
by the Settling Defendants pursuant to Paragraph 11.a of this
Consent Decree and described more fully in Paragraph 11.b.
"Section" shall mean a portion of this Consent Decree
identified by a roman numeral.
"Settling Defendants" shall mean those Parties identified in
Appendices D (Non-Owner Settling Defendants) and E (Owner Settling
Defendants).
["Site" shall mean the Superfund site,
encompassing approximately acres, located at [address or
description of location] in [name of city]. County,
-------
- 10 - OSWER DIRECTIVE NO. 9835.17
[name of state! and depicted generally on the map attached as
Appendix C.]
"State" [or "Commonwealth"] shall mean the State
[Commonwealth] of •
"Statement of Work" or "SOW" shall mean the statement of work
for implementation of the Remedial Design, Remedial Action, and
Operation and Maintenance at the Site, as set forth in Appendix B
to this Consent Decree anc any modifications made in accordance
with this Consent Decree.
"Supervising Contractor" shall mean the principal contractor
retained by the Settling Defendants to supervise and direct the
implementation of the Work under this Consent Decree.
"United States" shall mean the United States of America.
"Waste Material" shall mean (1) any "hazardous substance"
under Section 101(14) of CERCLA, 42 U.S.C. S 9601(14); (2) any
pollutant or contaminant under Section 101(33), 42 U.S.C.
S 9601(33); [(3) any "solid waste" under Section 1004(27) of RCRA,
42 U.S.C. $ 6903(27); and (4) any "hazardous material" under [State
statutory citation]].
"Work" shall mean all activities Settling Defendants are
required to perform under this Consent Decree, except those
required by Section XXVI (Retention of Records).
-------
- 11 - OSWER DIRECTIVE NO. 9835.17
V. GENERAL PROVISIONS
5. Objectives of the Parties
The objectives of the Parties in entering into this Consent
Decree are to protect public health or welfare or the environment
at the Site by the design and implementation of response actions at
the Site by the Settling Defendants and to reimburse response costs
of the Plaintiffs.
6. Commitments by Settling Defendants
a. Settling Defendants shall finance and perform the
Work in accordance with this Consent Decree and all plans,
standards, specifications, and schedules set forth in or developed
and approved by EPA pursuant to this Consent Decree. Settling
Defendants shall also reimburse the United States [and the State]
for Past Response Costs and Future Response Costs as provided in
this Consent Decree.
b. The obligations of Settling Defendants to finance and
perform the Work and to pay amounts owed the United States [and the
State] under this Consent Decree are joint and several. In the
event of the insolvency or other failure of any one or more
Settling Defendants to implement the requirements of this Consent
Decree, the remaining Settling Defendants shall complete all such
requirements.
7. Compliance With Applicable Law
All activities undertaken by Settling Defendants pursuant to
this Consent Decree shall be performed in accordance with the
requirements of all applicable federal and state laws and
-------
- 12 - OSWER DIRECTIVE NO. 9835.17
regulations. Settling Defendants must also comply with all
applicable or relevant and appropriate requirements of all Federal
and state environmental laws as set forth in the ROD and the SOW.
The activities conducted pursuant to this Consent Decree, if
approved by EPA, shall be considered to be consistent with the NCP.
8. Permits
a. As provided in Section 121(e) of CERCLA and §300.5 of
the NCP, no permit shall be required for any portion of the Work
conducted entirely on-site. Where any portion of the Work requires
a federal or state permit or approval, Settling Defendants shall
submit timely and complete applications and take all other actions
necessary to obtain all such permits or approvals.
b. The Settling Defendants may seek relief under the
provisions of Section XIX (Force Majeure) of this Consent Decree
for any delay in the performance of the Work resulting from a
failure to obtain, or a delay in obtaining, any permit required for
the Work.
c. This Consent Decree is not, and shall not be
construed to be, a permit issued pursuant to any federal or state
statute or regulation.
[9. Notice of Obligations to Successors-in-Title
a. Within 15 days after the entry of this Consent
Decree, the Owner Settling Defendant(s) shall record a certified
copy of this Consent Decree with the Recorder's Office [or Registry
of Deeds or other appropriate office], i County,
State of . Thereafter, each deed, title, or other
-------
- 13 - OSWER DIRECTIVE NO. 9835.17
instrument conveying an interest in the property included in the
Site shall contain a notice stating that the property is subject to
this Consent Decree [and any lien retained by thf; United States]
and shall reference the recorded location of the Consent Decree and
any restrictions applicable to the property under this Consent
Decree.
b. The obligations of each Owner Settling Defendant with
respect to the provision of access under Section X (Access) [and
the implementation of institutional controls under Section ]
shall be binding upon any and all such Settling Defendants and any
and all persons who subsequently acquire any such interest or
portion thereof (hereinafter "Successors-in-Title"). Within 15
days after the entry of this Consent Decree, each Owner Settling
Defendant shall record at the Recorder's Office [or Registry of
Deeds or other appropriate office where land ownership and transfer
records are maintained for the property] a notice of obligation to
provide access under Section X (Access) and related covenants.
Each subsequent instrument conveying an interest to any such
property included in the Site shall reference the recorded location
of such notice and covenants applicable to the property.
c. Any Owner Settling Defendant and any Successor-in-
Title shall, at least 30 days prior to the conveyance of any such
interest, give written notice of this Consent Decree to the grantee
and written notice to EPA [and the State] of the proposed
conveyance, including the name and address of the grantee, and the
date on which notice of the Consent Decree was given to the
-------
- 14 - OSWER DIRECTIVE NO. 9835.17
grantee. In the event of any such conveyance, the Settling
Defendants' obligations under this Consent Decree, including their
obligations to provide or secure access pursuant to Section X,
shall continue to be met by the Settling Defendants. In addition,
if the United States [and the State] approve[s], the grantee may
perform some or all of the Work under this Consent Decree. In no
event shall the conveyance of an interest in property that
includes, or is a portion of, the Site release or otherwise affect
the liability of the Settling Defendants to comply with the Consent
Decree.]
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS
[10. Selection of Supervising Contractor.
a. All aspects of the Work to be performed by Settling
Defendants pursuant to Sections VI (Performance of the Work by
Settling Defendants), VII (Additional Response Actions), VIII
(U.S. EPA Periodic Review), and IX (Quality Assurance, Sampling and
Data Analysis) of this Consent Decree shall be under the direction
and supervision of the Supervising Contractor, the selection of
which shall be subject to disapproval by EPA[ after a reasonable
opportunity for review and comment by the State.] Within 10 days
after the lodging of this Consent Decree, Settling Defendants shall
notify EPA [and the State] in writing of the name, title, and
qualifications of any contractor proposed to be the Supervising
Contractor. EPA will issue a notice of disapproval or an
authorization to proceed. If at any time thereafter, Settling
Defendants propose to change a Supervising Contractor, Settling
-------
- 15 - OSWER DIRECTIVE NO. 9835.17
Defendants shall give such notice to EPA [and the State] and must
obtain an authorization to proceed from EPA[, after a reasonable
opportunity for review and comment by the State,] before the new
Supervising Contractor performs, directs, or supervises any Work
under this Consent Decree.
b. If EPA disapproves a proposed Supervising Contractor,
EPA will notify Settling Defendants in writing. Settling
Defendants shall submit to EPA [and the State] a list of
contractors, including the qualifications of each contractor, that
would be acceptable to them within 30 days of receipt of EPA's
disapproval of the contractor previously proposed. EPA will
provide written notice of the names of any contractor(s) that it
disapproves and an authorization to proceed with respect to any of
the other contractors. Settling Defendants may select any
contractor from that list that is not disapproved and shall notify
EPA [and the State] of the name of the contractor selected within
21 days of EPA's authorization to proceed.
c. If EPA fails to provide written notice of its
authorization to proceed or disapproval as provided in this
Paragraph and this failure prevents the Settling Defendants from
meeting one or more deadlines in a plan approved by the EPA
pursuant to this Consent Decree, Settling Defendants may seek
relief under the provisions of Section XIX (Force Majeure) hereof.]
-------
- 16 - OSWER DIRECTIVE NO. 9835.17
[11. Remedial Design.
a. Within days after EPA's issuance of an
authorization to proceed pursuant to Paragraph 10, Settling
Defendants shall submit to EPA and the State a work plan for the
design of the Remedial Action at the Site ("Remedial Design Work
Plan"). The Remedial Design Work Plan shall provide for design of
the remedy set forth in the AOD in accordance with the SOW and,
upon its approval by EPA, shall be incorporated into and become
enforceable under this Consent Decree. Within days after EPA's
issuance of an authorization to proceed, the Settling Defendants
shall submit to EPA and the State a Health and Safety Plan for
field design activities which conforms to the applicable
Occupational Safety and Health Administration and EPA requirements
including, but not limited to, 29 C.F.R. S 1910.120.
b. The Remedial Design Work Plan shall include plans and
schedules for implementation of all remedial design and pre-design
tasks identified in the SOW, including, but not limited to, plans
and schedules for the completion of: [List all items which should
be included in the Remedial Design Work Plan. This list will be
based on site specific factors and may include the following items:
(1) design sampling and analysis plan (including, but not limited
to, a Remedial Design Quality Assurance Project Plan (RD QAPP) in
accordance with Section IX (Quality Assurance, Sampling and Data
Analysis)); (2) a treatability study; (3) a Pre-design Work Plan;
(4) a preliminary design submittal; (5) an intermediate design
submittal; (6) a pre-final/final design submittal; and (7) a
-------
- 17 - OSWER DIRECTIVE NO. 9835.17
Construction Quality Assurance Plan.] In addition, the Remedial
Design Work Plan shall include a schedule for completion of the
Remedial Action Work Plan.
c. Upon approval of the Remedial Design Work Plan by
EPA, after a reasonable opportunity for review and comment by the
State, and submittal of the Health and Safety Plan for all field
activities to EPA and the State, Settling Defendants shall
implement the Remedial Design Work Plan. The Settling Defendants
shall submit to EPA and the State all plans, submittals and other
deliverables reguired under the approved Remedial Design Work Plan
in accordance with the approved schedule for review and approval
pursuant to Section XII (Submissions Requiring Agency Approval).
Unless otherwise directed by EPA, Settling Defendants shall not
commence further Remedial Design activities at the Site prior to
approval of the Remedial Design Work Plan.
d. The preliminary design submittal shall include, at a
minimum, the following: (1) design criteria; (2) results of
treatability studies; (3) results of additional field sampling and
pre-design work; (4) project delivery strategy; (5) preliminary
plans, drawings and sketches; (6) required specifications in
outline form; and (7) preliminary construction schedule.
e. The intermediate design submittal, if required by EPA
or if independently submitted by the Settling Defendants, shall be
a continuation and expansion of the preliminary design. Any value
engineering proposals must be identified and evaluated during this
review.
-------
- 18 - OSWER DIRECTIVE NO. 9835.17
f. The pre-final/final design submittal shall include,
at a minimum, the following: (1) final plans and specifications;
(2) Operation and Maintenance Plan; (3) Construction Quality
Assurance Project Plan (CQAPP); (4) Field Sampling Plan (directed
at measuring progress towards meeting Performance Standards); and
(5) Contingency Plan. The CQAPP, which shall detail the approach
to quality assurance during construction activities at the site,
shall specify a quality assurance official ("QA Official"),
independent of the Supervising Contractor, to conduct a quality
assurance program during the construction phase of the project.]
[12. Remedial Action.
a. Within days after the approval of the final design
submittal, Settling Defendants shall submit to EPA and the State, a
work plan for the performance of the Remedial Action at the Site
("Remedial Action Work Plan"). The Remedial Action Work Plan shall
provide for construction of the remedy, in accordance with the SOW,
as set forth in the design plans and specifications in the approved
final design submittal. Upon its approval by EPA, the Remedial
Action Work Plan shall be incorporated into and become enforceable
under this Consent Decree. At the same time as they submit the
Remedial Action Work Plan, Settling Defendants shall submit to EPA
and the State a Health and Safety Plan for field activities
required by the Remedial Action Work Plan which conforms to the
applicable Occupational Safety and Health Administration and EPA
requirements including, but not limited to, 29 C.F.R. S 1910.120.
-------
- 19 - OSWER DIRECTIVE NO. 9835.17
b. The Remedial Action Work Plan shall include the
following: [List all activities for which methodologies, plans and
schedules should be included in the Remedial Action Work Plan.
This list will be based on site specific factors and .may include
the following: (l) the schedule for completion of the Remedial
Action; (2) method for selection of the contractor; (3) schedule
for developing and submitting other required Remedial Action plans;
(4) methodology for implementation of the Construction Quality
Assurance Plan; (5) a groundwater monitoring plan; (6) methods for
satisfying permitting requirements; (7) methodology for
implementation of the Operation and Maintenance Plan; (8)
methodology for implementation of the Contingency Plan;
(9) tentative formulation of the Remedial Action team; (10)
construction quality control plan (by constructor); and (11)
procedures and plans for the decontamination of equipment and the
disposal of contaminated materials.] The Remedial Action Work Plan
also shall include a schedule for implementation of all Remedial
Action tasks identified in the final design submittal and shall
identify the initial formulation of the Settling Defendants'
Remedial Action Project Team (including, but not limited to, the
Supervising Contractor).
c. Upon approval of the Remedial Action Work Plan by
EPA, after a reasonable opportunity for review and comment by the
State, Settling Defendants shall implement the activities required
under the Remedial Action Work Plan. The Settling Defendants shall
submit to EPA and the State all plans, submittals, or other
-------
- 20 - OSWER DIRECTIVE NO. 9835.17
deliverables required under the approved Remedial Action Work Plan
in accordance with the approved schedule for review and approval
pursuant to Section XII (Submissions Requiring Agency Approval).
Unless otherwise directed by EPA, Settling Defendants shall not
commence physical on-site activities at the Site prior to approval
of the Remedial Action Work Plan.]
-13. The Work performed by the Settling Defendants pursuant to
this Consent Decree shall include the obligation to achieve the
Performance Standards.
14. Settling Defendants acknowledge and agree that nothing in
this Consent Decree, the SOW, or the Remedial Design or Remedial
Action Work Plans constitutes a warranty or representation of any
kind by Plaintiff[s] that compliance with the work requirements set
forth in the SOW and the Work Plans will achieve the Performance
Standards. Settling Defendants' compliance with the work
requirements shall not foreclose Plaintiff[s] from seeking
compliance with all terms and conditions of this Consent Decree,
including, but not limited to, the applicable Performance
Standards.
15. Settling Defendants shall, prior to any off-Site
shipment of Waste Material from the Site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving
facility's state and to the EPA Project Coordinator of such
shipment of Waste Material. However, this notification requirement
-------
- 21 - OSWER DIRECTIVE NO. 9835.17
shall not apply to any off-Site shipments when the total volume of
all such shipments will not exceed 10 cubic yards.
a. The Settling Defendants shall include in the written
notification whe following information, where available: (1) the
name and location of the facility to which the Waste Material are
to be shipped; (2) the type and quantity of the Waste Material to
be shipped; (3) the expected schedule for the shipment of the Waste
Material; and (4) the method of transportation. The Settling
Defendants shall notify the state in which the planned receiving
facility is located of major changes in the shipment plan, such as
a decision to ship the Waste Material to another facility within
the same state, or to a facility in another state.
b. The identity of the receiving facility and state will
be determined by the Settling Defendants following the award of the
contract for Remedial Action construction. The Settling Defendants
shall provide the information required by Paragraph 15.a as soon as
practicable after the award of the contract and before the Waste
Material is actually shipped.
VII. ADDITIONAL RESPONSE ACTIONS
16. In the event that EPA determines or the Settling
Defendants propose that additional response actions are necessary
to meet the Performance Standards or to carry out the remedy
selected in the ROD, notification of such additional response
actions shall be provided to the Project Coordinator for the other
party(ies).
-------
- 22 - OSWER DIRECTIVE NO. 9835.17
17. Within 30 days of receipt of notice from EPA or Settling
Defendants pursuant to Paragraph 16 that additional response
actions are necessary (or such longer time as may be specified by
EPA), Settling Defendants shall submit for approval by EPA, after
reasonable opportunity for review and comment by the State, a work
plan for the additional response actions. The plan shall conform
to the applicable requirements of Paragraphs 11 and 12. Upon
approval of the plan pursuant to Section XII (Submissions Requiring
Agency Approval), Settling Defendants shall implement the plan for
additional response actions in accordance with the schedule
contained therein.
18. Any additional response actions that Settling Defendants
propose are necessary to meet the Performance Standards or to carry
out the remedy selected in the ROD shall be subject to approval by
EPA, after reasonable opportunity for review and comment by the
State, and, if authorized by EPA, shall be completed by Settling
Defendants in accordance with plans, specifications, and schedules
approved or established by EPA pursuant to Section XII (Submissions
Requiring Agency Approval).
19. Settling Defendants may invoke the procedures set forth
in Section XX (Dispute Resolution) to dispute EPA's determination
that additional response actions are necessary to meet the
Performance standards or to carry out the remedy selected in the
ROD. Such a dispute shall be resolved pursuant to Paragraphs 62-
65 of this Consent Decree.
-------
- 23 - OSWER DIRECTIVE NO. 9835.17
VIII. EPA PERIODIC REVIEW
20. Settling Defendants shall conduct any studies and
investigations as requested by EPA in order to permit EPA to
conduct reviews at least every five years as required by Section
121(c) of CERCLA and any applicable regulations.
21. If required by Sections 113(k)(2) or 117 of CERCLA,
Settling Defendants and the public will be provided with an
opportunity to comment on any further response actions proposed by
EPA as a result of the review conducted pursuant to Section 121(c)
of CERCLA and to submit written comments for the record during the
public comment period. After the period for submission of written
comments is closed, the Regional Administrator, EPA Region , or
his/her delegate will determine in writing whether further response
actions are appropriate.
22. If the Regional Administrator, EPA Region , or his/her
delegate determines that information received, in whole or in part,
during the review conducted pursuant to Section 121(c) of CERCLA,
indicates that the Remedial Action is not protective of human
health and the environment, the Settling Defendants shall undertake
any further response actions EPA has determined are appropriate,
unless their liability for such further response actions is barred
by the Covenant Not to Sue set forth in Section XXII. Settling
Defendants shall submit a plan for such work to EPA for approval in
accordance with the procedures set forth in Section VI (Performance
of the Work by Settling Defendants) and shall implement the plan
approved by EPA. The Settling Defendants may invoke the procedures
-------
- 24 - OSWER DIRECTIVE NO. 9835.17
set forth in Section XX (Dispute Resolution) to dispute (1) EPA's
determination that the remedial action is not protective of human
health and the environment, (2) EPA's selection of the further
response actions ordered as arbitrary and capricious or otherwise
not in accordance with law, or (3) EPA's determination that the
Settling Defendant's liability for the further response actions
requested is reserved in Paragraphs 80, 81, or 83 or otherwise not
barred by the Covenant Not to Sue set forth in Section XXII.
IX. QUALITY ASSURANCE. SAMPLING, and DATA ANALYSIS
23. Settling Defendants shall use quality assurance, quality
control, and chain of custody procedures for all [treatability,
design, compliance and monitoring] samples in accordance with EPA's
"Interim Guidelines and Specifications For Preparing Quality
Assurance Project Plans," December 1980, (QAMS-005/80); "Data
Quality Objective Guidance," (EPA/540/G87/003 and 004); "EPA NEIC
Policies and Procedures Manual,1' May 1978, revised November 1984,
(EPA 330/9-78-001-R); and subsequent amendments to such guidelines
upon notification by EPA to Settling Defendants of such amendment.
Amended guidelines shall apply only to procedures conducted after
such notification. Prior to the commencement of any monitoring
project under this Consent Decree, Settling Defendants shall submit
to EPA for approval, after a reasonable opportunity for review and
comment by the State, a Quality Assurance Project Plan ("QAPP") to
EPA and the State that is consistent with the SOW, the NCP and
[applicable guidance documents.] If relevant to the proceeding,
the Parties agree that validated sampling data generated in
-------
- 25 - OSWER DIRECTIVE NO. 9835.17
accordance with the QAPP(s) and reviewed and approved by EPA shall
be admissible as evidence, without objection, in any proceeding
under this Decree. Settling Defendants shall ensure that EPA [and
State] personnel and its [their] authorized representatives are
allowed access at reasonable times to all laboratories utilized by
Settling Defendants in implementing this Consent Decree. In
addition, Settling Defendants shall ensure that such laboratories
shall analyze all samples submitted by EPA pursuant to the QAPP for
quality assurance monitoring. Settling Defendants shall ensure
that the laboratories they utilize for the analysis of samples
taken pursuant to this Decree perform all analyses according to
accepted EPA methods. Accepted EPA methods consist of those
methods which are documented in the ["Contract Lab Program
Statement of Work for Inorganic Analysis" and the "Contract Lab
Program Statement of Work for Organic Analysis," dated February
1988], and any amendments made thereto during the course of the
implementation of this Decree. Settling Defendants shall ensure
that all laboratories they use for analysis of samples taken
pursuant to this Consent Decree participate in an EPA or EPA-
equivalent QA/QC program.
24. Upon request, the Settling Defendants shall allow split
or duplicate samples to be taken by EPA [and the State] or their
authorized representatives. Settling Defendants shall notify EPA
[and the State] not less than [28] days in advance of any sample
collection activity unless shorter notice is agreed to by EPA. In
addition, EPA [and the State] shall have the right to take any
-------
- 26 - OSWER DIRECTIVE NO. 9835.17
additional samples that EPA [or the State] deem necessary. Upon
request, EPA [and the State] shall allow the Settling Defendants to
take split or duplicate samples of any samples it takes as part of
the Plaintiffs['] oversight of the Settling Defendant's
implementation of the Work.
25. Settling Defendants shall submit to EPA [and the State]
copies of the results of all sampling and/or tests or other data
obtained or generated by or on behalf of Settling Defendants with
respect to the Site and/or the implementation of this Consent
Decree unless EPA agrees otherwise.
26. Notwithstanding any provision of this Consent Decree, the
United States [and the State] hereby retains all of its information
gathering and inspection authorities and rights, including
enforcement actions related thereto, under CERCLA, RCRA and any
other applicable statutes or regulations.
X. ACCESS
27. Commencing upon the date of lodging of this Consent
Decree, the Settling Defendants agree to provide the United
Statesf, the State,] and their representatives, including EPA and
its contractors, access at all reasonable times to the Site and any
other property to which access is required for the implementation
of this Consent Decree, to the extent access to the property is
controlled by Settling Defendants, for the purposes of conducting
any activity related to this Consent Decree including, but not
limited to:
a. Monitoring the Work;
-------
- 27 - OSWER DIRECTIVE NO. 9835.17
b. Verifying any data or information submitted to the
United States;
c. Conducting investigations relating to contamination
at or near the Site;
d. Obtaining samples;
e. Assessing the need for, planning, or implementing
additional response actions at or near the Site;
f. Inspecting and copying records, operating logs,
contracts, or other documents maintained or generated by Settling
Defendants or their agents, consistent with Section XXV; and
g. Assessing Settling Defendants' compliance with this
Consent Decree.
28. To the extent that the Site or any other property to
which access is required for the implementation of this Consent
Decree is owned or controlled by persons other than Settling
Defendants, Settling Defendants shall use best efforts to secure
from such persons access for Settling Defendants, as well as for
the United States and the State and their representatives,
including, but not limited to, their contractors, as necessary to
effectuate this Consent Decree. For purposes of this Paragraph
"best efforts" includes the payment of reasonable sums of money in
consideration of access. If any access required to complete the
Work is not obtained within 45 days of the date of lodging of this
Consent Decree, or within 45 days of the date EPA notifies the
Settling Defendants in writing that additional access beyond that
previously secured is necessary, Settling Defendants shall promptly
-------
- 28 - OSWER DIRECTIVE NO. 9835.17
notify the United States, and shall include in that notification a
summary of the steps Settling Defendants have taken to attempt to
obtain access. The United States [or the State] may, as it deems
appropriate, assist Settling Defendants in obtaining access.
Settling Defendants shall reimburse the United States [or the
State], in accordance with the procedures in Section XVII
(Reimbursement of Response Costs), for all costs incurred by the
United States in obtaining access.
29. Notwithstanding any provision of this Consent Decree, the
United States [and the State] retain[s] all of its access
authorities and rights, including enforcement authorities related
thereto, under CERCLA, RCRA and any other applicable statute or
regulations.
XI. REPORTING REQUIREMENTS
30. In addition to any other requirement of this Consent
Decree, Settling Defendants shall submit to EPA and the State
copies of written [monthly] progress reports that: (a) describe
the actions which have been taken toward achieving compliance with
this Consent Decree during the previous [month]; (b) include a
summary of all results of sampling and tests and all other data
received or generated by Settling Defendants or their contractors
or agents in the previous [month]; (c) identify all work plans,
plans and other deliverables required by this Consent Decree
completed and submitted during the previous [month]; (d) describe
all actions, including, but not limited to, data collection and
implementation of work plans, which are scheduled for the next [six
-------
- 29 - OSWER DIRECTIVE NO. 9835.17
weeks] and provide other information relating to the progress of
construction, including, but not limited to, critical path
diagrams, Gantt charts and Pert charts; (e) include information
regarding percentage of completion, unresolved delays encountered
or anticipated that may affect the future schedule for
implementation of the Work, and a description of efforts made to
mitigate those delays or anticipated delays; (f) include any
modifications to the work plans or other schedules that Settling
Defendants have proposed to EPA or that have been approved by EPA;
and (g) describe all activities undertaken in support of the
Community Relations Plan during the previous [month] and those to
be undertaken in the next [six weeks]. Settling Defendants shall
submit these progress reports to EPA and the State by the [tenth
day of every month] following the lodging of this Consent Decree
until [EPA notifies the Settling Defendants pursuant to Paragraph
48.b of Section XV (Certification of Completion).] If requested by
EPA [or the State], Settling Defendants shall also provide
briefings for EPA [and the State] to discuss the progress of the
Work.
31. The Settling Defendants shall notify EPA of any change in
the schedule described in the monthly progress report for the
performance of any activity, including, but not limited to, data
collection and implementation of work plans, no later than seven
days prior to the performance of the activity.
32. Upon the occurrence of any event during performance of
the Work that Settling Defendants are required to report pursuant
-------
- 30 - OSWER DIRECTIVE NO. 9835.17
to Section 103 of CERCLA or Section 304 of the Emergency Planning
and Community Right-to-know Act (EPCRA), Settling Defendants shall.
within 24 hours of the on-set of such event orally notify the EPA
Project Coordinator or the Alternate EPA Project Coordinator (in
the event of the unavailability of the EPA Project Coordinator),
or, in the event that neither the EPA Project Coordinator or
Alternate EPA Project Coordinator is available, the Emergency
Response Section, Region , United States Environmental Protection
Agency. These reporting requirements are in addition to the
reporting required by CERCLA Section 103 or EPCRA Section 304.
33. Within 20 days of the onset of such an event, Settling
Defendants shall furnish to Plaintiffs a written report, signed by
the Settling Defendant's Project Coordinator, setting forth the
events which occurred and the measures taken, and to be taken, in
response thereto. Within 30 days of the conclusion of such an
event, Settling Defendants shall submit a report setting forth all
actions taken in response thereto.
34. Settling Defendants shall submit copies of all plans,
reports, and data required by the SOW, the Remedial Design Work
Plan, the Remedial Action Work Plan, or any other approved plans to
EPA in accordance with the schedules set forth in such plans.
Settling Defendants shall simultaneously submit copies of all
such plans, reports and data to the State.
35. All reports and other documents submitted by Settling
Defendants to EPA (other than the [monthly] progress reports
referred to above) which purport to document Settling Defendants'
-------
- 31 - OSWER DIRECTIVE NO. 9835.17
compliance with the terms of this Consent Decree shall be signed by
an authorized representative of the Settling Defendants.
XII. SUBMISSIONS REQUIRING AGENCY APPROVAL
36. After review of any plan, report or other item which is
required to be submitted for approval pursuant to this Consent
Decree, EPA, after reasonable opportunity for review and comment by
the State, shall: (a) approve, in whole or in part, the submission;
(b) approve the submission upon specified conditions; (c) modify
the submission to cure the deficiencies; (d) disapprove, in whole
or in part, the submission, directing that the Settling Defendants
modify the submission; or (e) any combination of the above.
37. In the event of approval, approval upon conditions, or
modification by EPA, pursuant to Paragraph 36(a), (b) , or (c) ,
Settling Defendants shall proceed to take any action required by
the plan, report, or other item, as approved or modified by EPA
subject only to their right to invoke the Dispute Resolution
procedures set forth in Section XX (Dispute Resolution) with
respect to the modifications or conditions made by EPA. In the
event that EPA modifies the submission to cure the deficiencies
pursuant to Paragraph 36(c) and the submission has a material
defect, EPA retains its right to seek stipulated penalties, as
provided in Section XXI.
38. a. Upon receipt of a notice of disapproval pursuant to
Paragraph 36(d), Settling Defendants shall, within 14 days or such
other time as specified by EPA in such notice, correct the
deficiencies and resubmit the plan, report, or other item for
-------
- 32 - OSWER DIRECTIVE NO. 9835.17
approval. Any stipulated penalties applicable to the submission,
as provided in Section XXI, shall accrue during the 14-day period
or otherwise specified period but shall not be payable unless the
resubmission is disapproved or modified due to a material defect as
provided in Paragraph 39.
b. Notwithstanding the receipt of a notice of disapproval
pursuant to Paragraph 36(d), Settling Defendants shall proceed, at
the direction of EPA, to take any action required by any non-
deficient portion of the submission. Implementation of any non-
deficient portion of a submission shall not relieve Settling
Defendants of any liability for stipulated penalties under Section
XXI (Stipulated Penalties).
39. In the event that a resubmitted plan, report or other
item, or portion thereof, is disapproved by EPA, EPA may again
require the Settling Defendants to correct the deficiencies, in
accordance with the preceding Paragraphs. EPA also retains the
right to amend or develop the plan, report or other item. Settling
Defendants shall implement any such plan, report, or item as
amended or developed by EPA, subject only to their right to invoke
the procedures set forth in Section XX (Dispute Resolution).
40. If upon resubmission, a plan, report, or item is
disapproved or modified by EPA due to a material defect, Settling
Defendants shall be deemed to have failed to submit such plan,
report, or item timely and adequately unless the Settling
Defendants invoke the dispute resolution procedures set forth in
Section XX (Dispute Resolution) and EPA's action is overturned
-------
- 33 - OSWER DIRECTIVE NO. 9835.17
pursuant to that Section. The provisions of Section XX (Dispute
Resolution) and Section XXI (Stipulated Penalties) shall govern the
implementation of the Work and accrual and payment of any
stipulated penalties during Dispute Resolution. If EPA's
disapproval or modification is upheld, stipulated penalties shall
accrue for such violation from the date on which the initial
submission was originally required, as provided in Section XXI.
41. All plans, reporcs, and other items required to be
submitted to EPA under this Consent Decree shall, upon approval or
modification by EPA, be enforceable under this Consent Decree. In
the event EPA approves or modifies a portion of a plan, report, or
other item required to be submitted to EPA under this Consent
Decree, the approved or modified portion shall be enforceable under
this Consent Decree.
XIII. PROJECT COORDINATORS
42. Within 20 days of lodging this Consent Decree, Settling
Defendants!, the State] and EPA will notify each other, in writing,
of the name, address and telephone number of their respective
designated Project Coordinators and Alternate Project Coordinators.
If a Project Coordinator or Alternate Project Coordinator initially
designated is changed, the identity of the successor will be given
to the other parties at least 5 working days before the changes
occur, unless impracticable, but in no event later than the actual
day the change is made. The Settling Defendants' Project
Coordinator shall be subject to disapproval by EPA and shall have
the technical expertise sufficient to adequately oversee all
-------
- 34 - OSWER DIRECTIVE NO. 9835.17
aspects of the Work. The Settling Defendants' Project Coordinator
shall not be an attorney for any of the Settling Defendants in this
matter. He or shi may assign other representatives, including
other contractors, to serve as a Site representative for oversight
of performance of daily operations during remedial activities.
43. Plaintiff[s] may designate other representatives,
including, but not limited to, EPA [and State] employees, and
federal [and State] contractors and consultants, to observe and
monitor the progress of any activity undertaken pursuant to this
Consent Decree. EPA's Project Coordinator and Alternate Project
Coordinator shall have the authority lawfully vested in a Remedial
Project Manager (RPM) and an On-Scene Coordinator (OSC) by the
National Contingency Plan, 40 C.F.R. Part 300. In addition, EPA's
Project Coordinator or Alternate Project Coordinator shall have
authority, consistent with the National Contingency Plan, to halt
any Work required by this Consent Decree and to take any necessary
response action when s/he determines that conditions at the Site
constitute an emergency situation or may present an immediate
threat to public health or welfare or the environment due to
release or threatened release of Waste Material.
[44. EPA's Project Coordinator and the Settling Defendants'
Project Coordinator will meet, at a minimum, on a monthly basis.]
-------
- 35 - OSWER DIRECTIVE NO. 9835.17
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK
45. Within 30 days of entry of this Consent Decree, Settling
Defendants shall establish and maintain financial security in the
amount of $ in one of the following forms:
(a) A surety bond guaranteeing performance of the Work;
(b) One or more irrevocable letters of credit equalling
the total estimated cost of the Work;
(c) A trust fund;
(d) A guarantee to perform the Work by one or more parent
corporations or subsidiaries, or by one or more unrelated
corporations that have a substantial business relationship with at
least one of the Settling Defendants; or
(.e) A demonstration that one or more of the Settling
Defendants satisfy the requirements of 40 C.F.R. Part 264.143(f).
46. If the Settling Defendants seek to demonstrate the
ability to complete the Work through a guarantee by a third party
pursuant to Paragraph 45(d) of this Consent Decree, Settling
Defendants shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If Settling Defendants
seek to demonstrate their ability to complete the Work by means of
the financial test or the corporate guarantee pursuant to Paragraph
45 (d) or (e) , they shall resubmit sworn statements conveying the
information required by 40 C.F.R. Part 264.143(f) annually, on the
anniversary cf the effective date of this Consent Decree. In the
event that EPA[, after a reasonable opportunity for review and
comment by the State,] determines at any time that the financial
-------
- 36 - OSWER DIRECTIVE NO. 9835.17
assurances provided pursuant to this Section are inadequate,
Settling Defendants shall, within 30 days of receipt of notice of
EPA's determination, obtain and present to EPA for approval one of
the other forms of financial assurance listed in Paragraph 45 of
this Consent Decree. Settling Defendants' inability to demonstrate
financial ability to complete the Work shall not excuse performance
of any activities required under this Consent Decree.
XV. CERTIFICATION OF COMPLETION
47. Completion of the Remedial Action
a. Within 90 days after Settling Defendants conclude
that the Remedial Action has been fully performed and the
Performance Standards have been attained, Settling Defendants shall
schedule and conduct a pre-certification inspection to be attended
by Settling Defendants[,] [and] EPA [and the State]. If, after the
pre-certification inspection, the Settling Defendants still believe
that the Remedial Action has been fully performed and the
Performance Standards have been attained, they shall submit a
written report requesting certification to EPA for approval, with a
copy to the State, pursuant to Section XII (Submissions Requiring
Agency Approval) within 30 days of the inspection. In the report,
a registered professional engineer and the Settling Defendants'
Project Coordinator shall state that the Remedial Action has been
completed in full satisfaction of the requirements of this Consent
Decree. The written report shall include as-built drawings signed
and stamped by a professional engineer. The report shall contain
the following statement, signed by a responsible corporate official
-------
- 37 - OSWER DIRECTIVE NO. 9835.17
of a Settling Defendant or the Settling Defendants' Project
Coordinator:
"To the best of my knowledge, after thorough
investigation, I certify that the information contained
in or accompanying this submission is true, accurate and
complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing
violations."
If, after completion of the pre-certification inspection and
receipt and review of the written report, EPA, after reasonable
opportunity to review and comment by the State, determines that the
Remedial Action or any portion thereof has not been completed in
accordance with this Consent Decree or that the Performance
Standards have not been achieved, EPA will notify Settling
Defendants in writing of the activities that must be undertaken to
complete the Remedial Action and achieve the Performance Standards.
EPA will set forth in the notice a schedule for performance of such
activities consistent with the Consent Decree and the SOW or
require the Settling Defendants to submit a schedule to EPA for
approval pursuant to Section XII (Submissions Requiring Agency
Approval). Settling Defendants shall perform all activities
described in the notice in accordance with the specifications and
schedules established pursuant to this Paragraph, subject to their
right to invoke the dispute resolution procedures set forth in
Section XX (Dispute Resolution).
b. If EPA concludes, based on the initial or any
subsequent report requesting Certification of Completion and after
a reasonable opportunity for review and comment by the State, that
-------
- 38 - OSWER DIRECTIVE NO. 9835.17
the Remedial Action has been fully performed in accordance with
this Consent Decree and that the Performance standards have been
achieved, EPA will so certify in writing to Settling Defendants.
This certification shall constitute the Certification of Completion
of the Remedial Action for purposes of this Consent Decree,
including, but not limited to, Section XXII (Covenants Not to Sue
by Plaintiffs). Certification of Completion of the Remedial Action
shall not affect Settling Defendants' obligations under this
Consent Decree.
48. Completion of the Work
a. Within 90 days after Settling Defendants conclude that
all phases of the Work (including 0 & M), have been fully
performed, Settling Defendants shall schedule and conduct a pre-
certification inspection to be attended by Settling Defendants[,]
[and] EPA [and the State]. If, after the pre-certification
inspection, the Settling Defendants still believe that the Work has
been fully performed, Settling Defendants shall submit a written
report by a registered professional engineer stating that the Work
has been completed in full satisfaction of the requirements of this
Consent Decree. The report shall contain the following statement,
signed by a responsible corporate official of a Settling Defendant
or the Settling Defendants' Project Coordinator:
"To the best of my knowledge, after thorough
investigation, I certify that the information contained
in or accompanying this submission is true, accurate and
complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing
violations."
-------
- 39 - OSWER DIRECTIVE NO. 9835.17
If, after review of the written report, EPA, after reasonable
opportunity to review and comment by the State, determines that any
portion of the Work has not been completed in accordance with this
Consent Decree, EPA will notify Settling Defendants in writing of
the activities that must be undertaken to complete the Work. EPA
will set forth in the notice a schedule for performance of such
activities consistent with the Consent Decree and the SOW or
require the Settling Defendants to submit a schedule to EPA for
approval pursuant to Section XII (Submissions Requiring Agency
Approval). Settling Defendants shall perform all activities
described in the notice in accordance with the specifications and
schedules established therein, subject to their right to invoke the
dispute resolution procedures set forth in Section XX (Dispute
Resolution).
b. If EPA concludes, based on the initial or any
subsequent request for Certification of Completion by Settling
Defendants and after a reasonable opportunity for review and
comment by the State, that the Work has been fully performed in
accordance with this Consent Decree, EPA will so notify the
Settling Defendants in writing.
XVI. EMERGENCY RESPONSE
49. In the event of any action or occurrence during the
performance of the Work which causes or threatens a release of
Waste Material from the Site that constitutes an emergency
situation or may present an immediate threat to public health or
welfare or the environment, Settling Defendants shall, subject to
-------
- 40 - OSWER DIRECTIVE NO. 9835.17
Paragraph 50, immediately take all appropriate action to prevent,
abate, or minimize such release or threat of release, and shall
immediately notify the EPA's Project Coordinator, or, if the
Project Coordinator is unavailable, EPA's Alternate Project
Coordinator. If neither of these persons is available, the
Settling Defendants shall notify the EPA [Emergency Response Unit],
Region . Settling Defendants shall take such actions in
consultation with EPA's Project Coordinator or other available
authorized EPA officer and in accordance with all applicable
provisions of the Health and Safety Plans, the Contingency Plans,
and any other applicable plans or documents developed pursuant to
the SOW. In the event that Settling Defendants fail to take
appropriate response action as required by this Section, and EPA
[or, as appropriate, the State] take[s] such action instead,
Settling Defendants shall reimburse EPA [and the State] all costs
of the response action not inconsistent with the NCP pursuant to
Section XVII (Reimbursement of Response Costs).
50. Nothing in the preceding Paragraph or in this Consent
Decree shall be deemed to limit any authority of the United
States[, or the State,] to take, direct, or order all appropriate
action or to seek an order from the Court to protect human health
and the environment or to prevent, abate, respond to, or minimize
an actual or threatened release of Waste Material on, at, or from
the Site.
-------
- 41 - OSWER DIRECTIVE NO. 9835.17
XVII. REIMBURSEMENT OF RESPONSf COSTS
51. Within 30 days of the effective date of this Consent
Decree, Settling Defendants shall:
a. Pay to the United States $ __ , in the form of
a certified check or checks made payable to "EPA Hazardous
Substance Superfund," and referencing CERCLA Number FSite/Spill ID
Number 1 and DOJ Case Number _ in reimbursement of Past
Response Costs. The Settling Defendants shall forward the
certified check (s) to [Insert appropriate Regional Superfund
Lockbox number and address] and shall send copies of the check to
the United States as specified in Section XXVII (Notices and
Submissions) and [names of any other receiving officials at EPA and
their mailing addresses].
[b. Pay to the State $ _ in the form of a
certified check or checks made payable to _ , in
reimbursement of Past Response Costs incurred by the State. The
Settling Defendants shall send the certified check (s) to
52. Settling Defendants shall reimburse the United States
[and the State] for all Future Response Costs not inconsistent with
the National Contingency Plan incurred by the United States [and
the State]. The United States [and the State] will [each] send
Settling Defendants a bill requiring payment that includes a [name
standard Regionally-prepared cost summary, which includes direct
and indirect costs incurred by EPA, DOJ and the State and their
contractors] on a [periodic] basis. Settling Defendants shall make
-------
- 42 - OSWER DIRECTIVE NO. 9835.17
all payments within 30 days of Settling Defendants' receipt of each
bill requiring payment, except as otherwise provided in Paragraph
53. The Settling Defendants shall make all payments required by
this Paragraph in the manner described in Paragraph 51.
53. Settling Defendants may contest payment of any Future
Response Costs under Paragraph 52 if they determine that the United
States [or the State] has made an accounting error or if they
allege that a cost item that is included represents costs that are
inconsistent with the NCP. Such objection shall be made in writing
within 30 days of receipt of the bill and must be sent to the
United States [(if the United States' accounting is being disputed)
or the State (if the State's accounting is being disputed)]
pursuant to Section XXVII (Notices and Submissions). Any such
objection shall specifically identify the contested Future Response
Costs and the basis for objection. In the event of an objection,
the Settling Defendants shall within the 30 day period pay all
uncontested Future Response Costs to the United States [or the
State] in the manner described in Paragraph 51. Simultaneously,
the Settling Defendants shall establish an interest bearing escrow
account in a federally-insured bank duly chartered in the State of
and remit to that escrow account funds equivalent to the
amount of th« contested Future Response Costs. The Settling
Defendants shall send to the United States, as provided in Section
XXVII (Notices and Submissions), [and the State] a copy of the
transmittal letter and check paying the uncontested Future Response
Costs, and a copy of the correspondence that establishes and funds
-------
- 43 - OSWER DIRECTIVE NO. 9835.17
the escrow account, including, but not limited to, information
containing the identity of the bank and bank account under which
the escrow account is established as well as a bank statement
showing the initial balance of the escrow account. Simultaneously
with establishment of the escrow account, the Settling Defendants
shall initiate the Dispute Resolution procedures in Section XX
(Dispute Resolution). If tne United States [or the State] prevails
in the dispute, within 5 days of the resolution of the dispute, the
Settling Defendants shall pay the sums due (with accrued interest)
to the United States [or the State, if State costs are disputed,]
in the manner described in Paragraph 51. If the Settling
Defendants prevail concerning any aspect of the contested costs,
the Settling Defendants shall pay that portion of the costs (plus
associated accrued interest) for which they did not prevail to the
United States [or the State, if State costs are disputed] in the
manner described in Paragraph 51; Settling Defendants shall be
disbursed any balance of the escrow account. The dispute
resolution procedures set forth in this Paragraph in conjunction
with the procedures set forth in Section XX (Dispute Resolution)
shall be the exclusive mechanisms for resolving disputes regarding
the Settling Defendants' obligation to reimburse the United States
[and the State] for its [their] Future Response Costs.
54. In the event that the payments required by Paragraph 51
are not made within 30 days of the effective date of this Consent
Decree or the payments required by Paragraph 52 are not made within
30 days of the Settling Defendants' receipt of the bill, Settling
-------
- 44 - OSWER DIRECTIVE NO. 9835.17
Defendants shall pay interest on the unpaid balance at the rate
established pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607.
The interest to be paid on Past Response Costs shall begin to
accrue on the effective date of the Consent Decree. The interest
on Future Response Costs shall begin to accrue on the date of the
Settling Defendants' receipt of the bill. Interest shall accrue at
the rate specified through the date of the Settling Defendant's
payment. Payments of interest made under this Paragraph shall be
in addition to such other remedies or sanctions available to
Plaintiffs by virtue of Settling Defendants' failure to make timely
payments under this Section.
XVIII. INDEMNIFICATION AND INSURANCE
55. The United States [and the State] do[es] not assume any
liability by entering into this agreement or by virtue of any
designation of Settling Defendants as EPA's authorized
representatives under Section 104(e) of CERCLA. Settling
Defendants shall indemnify, save and hold harmless the United
States[, the State,] and its [their] officials, agents, employees,
contractors, subcontractors, or representatives for or from any and
all claims or causes of action arising from, or on account of, acts
or omissions of Settling Defendants, their officers, directors,
employees, agents, contractors, subcontractors, and any persons
acting on their behalf or under their control, in carrying out
activities pursuant to this Consent Decree, including, but not
limited to, any claims arising from any designation of Settling
Defendants as EPA's authorized representatives under Section 104(e)
-------
- 45 - OSWER DIRECTIVE NO. 9835.17
of CERCLA. Further, the Settling Defendants agree to pay the
United States [and the State] all costs it [they] incurs including,
but not limited to, attorneys fees and other expenses of litigation
and settlement arising from, or on account of, claims made against
the United States based on acts or omissions of Settling
Defendants, their officers, directors, employees, agents,
contractors, subcontractors, and any persons acting on their behalf
or under their control, in carrying out activities pursuant to this
Consent Decree. [Neither] the United States [nor the State] shall
[not] be held out as a party to any contract entered into by or on
behalf of Settling Defendants in carrying out activities pursuant
to this Consent Decree. Neither the Settling Defendants nor any
such contractor shall be considered an agent of the United States
[or the State].
56. Settling Defendants waive all claims against the United
States[ and the State] for damages or reimbursement or for set-off
of any payments made or to be made to the United States [or the
State], arising from or on account of any contract, agreement, or
arrangement between any one or more of Settling Defendants and any
person for performance of Work on or relating to the Site,
including, but not limited to, claims on account of construction
delays. In addition, Settling Defendants shall indemnify and hold
harmless the United States [and the State] with respect to any and
all claims for damages or reimbursement arising from or on account
of any contract, agreement, or arrangement between any one or more
of Settling Defendants and any person for performance of work on or
-------
- 46 - OSWER DIRECTIVE NO. 9835.17
relating to the Site, including, but not limited to, claims on
account of construction delays.
57. No later than 15 days before commencing any on-site Work,
Settling Defendants shall secure, and shall maintain [until the
first anniversary of EPA's Certification of Completion of the
Remedial Action pursuant to Paragraph 47.b. of Section XV
(Certification of Completion)] comprehensive general liability
insurance and automobile insurance with limits of million
dollars, combined single limit naming as additional insured the
United States [and the State]. In addition, for the duration of
this Consent Decree, Settling Defendants shall satisfy, or shall
ensure that their contractors or subcontractors satisfy, all
applicable laws and regulations regarding the provision of worker's
compensation insurance for all persons performing the Work on
behalf of Settling Defendants in furtherance of this Consent
Decree. Prior to commencement of the Work under this Consent
Decree, Settling Defendants shall provide to EPA [and the State]
certificates of such insurance and a copy of each insurance policy.
Settling Defendants shall resubmit such certificates and copies of
policies each year on the anniversary of the effective date of this
Consent Decree. If Settling Defendants demonstrate by evidence
satisfactory to EPA [and the State] that any contractor or
subcontractor maintains insurance equivalent to that described
above, or insurance covering the same risks but in a lesser amount,
then, with respect to that contractor or subcontractor, Settling
Defendants need provide only that portion of the insurance
-------
- 47 - OSWER DIRECTIVE NO. 9835.17
described above which is not maintained by the contractor or
subcontractor.
XIX. FORCE MAJEURE
58. "Force majeure," for purposes of this Consent Decree, is
defined as any event arising from causes beyond the control of the
Settling Defendants or of any entity controlled by Settling
Defendants, including, but not limited to, their contractors and
subcontractors, that delays or prevents the performance of any
obligation under this Consent Decree despite Settling Defendants'
best efforts to fulfill the obligation. The requirement that the
Settling Defendants exercise "best efforts to fulfill the
obligation" includes using best efforts to anticipate any potential
force majeure event and best efforts to address the effects of any
potential force majeure event (1) as it is occurring and (2)
following the potential force majeure event, such that the delay is
minimized to the greatest extent possible. "Force Majeure" does
not include financial inability to complete the Work or a failure
to attain the Performance Standards.
59. If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Decree, whether or
not caused by a force majeure event, the Settling Defendants shall
notify orally EPA's Project Coordinator or, in his or her absence,
EPA's Alternate Project Coordinator or, in the event both of EPA's
designated representatives are unavailable, [the Director of the
Hazardous Waste Management Division, EPA Region ], within [48]
hours of when Settling Defendants first knew or should have known
-------
- 48 - OSWER DIRECTIVE NO. 9835.17
that the event might cause a delay. Within [5] days thereafter,
Settling Defendants shall provide in writing to EPA [and the State]
an explanation and description of the reasons for the delay; the
anticipated duration of the delay; all actions taken or to be taken
to prevent or minimize the delay; a schedule for implementation of
any measures to be taken to prevent or mitigate the delay or the
effect of the delay; the Settling Defendants' rationale for
attributing such delay to a force majeure event if they intend to
assert such a claim; and a statement as to whether, in the opinion
of the Settling Defendants, such event may cause or contribute to
an endangerment to public health, welfare or the environment. The
Settling Defendants shall include with any notice all available
documentation supporting their claim that the delay was
attributable to a force majeure. Failure to comply with the above
requirements shall preclude Settling Defendants from asserting any
claim of force majeure for that event. Settling Defendants shall
be deemed to have notice of any circumstance of which their
contractors or subcontractors had or should have had notice.
60. If EPA[, after a reasonable opportunity for review and
comment by the State,] agrees that the delay or anticipated delay
is attributable to a force majeure event, the time for performance
of the obligations under this Consent Decree that are affected by
the force majeure event will be extended by EPA[, after a
reasonable opportunity for review and comment by the State,] for
such time as is necessary to complete those obligations. An
extension of the time for performance of the obligations affected
-------
- 49 - OSWER DIRECTIVE NO. 9835.17
by the force majeure event shall not, of itself, extend the time
for performance of any other obligation. if EPA[, after a
reasonable opportunity for review and comment by the State,] does
not agree that the delay or anticipated delay has been or will be
caused by a force majeure event, EPA will notify the Settling
Defendants in writing of its decision. If EPA[, after a reasonable
opportunity for review and comment by the State,] agrees that the
delay is attributable to a force majeure event, EPA will notify the
Settling Defendants in writing of the length of the extension, if
any, for performance of the obligations affected by the force
majeure event.
61. If the Settling Defendants elect to invoke the dispute
resolution procedures set forth in Section XX (Dispute Resolution),
they shall do so no later than 15 days after receipt of EPA's
notice. In any such proceeding, Settling Defendants shall have the
burden of demonstrating by a preponderance of the evidence that the
delay or anticipated delay has been or will be caused by a force
majeure event, that the duration of the delay or the extension
sought was or will be warranted under the circumstances, that best
efforts were exercised to avoid and mitigate the effects of the
delay, and that Settling Defendants complied with the requirements
of Paragraphs 58 and 59, above. If Settling Defendants carry this
burden, the delay at issue shall be deemed not to be a violation by
Settling Defendants of the affected obligation of this Consent
Decree identified to EPA and the Court.
-------
- 50 - OSWER DIRECTIVE NO. 9835.17
XX. DISPUTE RESOLUTION
62, Unless otherwise expressly provided for in this Consent
Decree, the dispute resolution procedures of this Section shall be
the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree. However, the procedures set forth
in this Section shall not apply to actions by the United States to
enforce obligations of the Settling Defendants that have not been
disputed in accordance with this Section.
63. Any dispute which arises under or with respect to this
Consent Decree shall in the first instance be the subject of
informal negotiations between the parties to the dispute. The
period for informal negotiations shall not exceed 20 days from the
time the dispute arises, unless it is modified by written agreement
of the parties to the dispute. The dispute shall be considered to
have arisen when one party sends the other parties a written Notice
of Dispute.
64. a. In the event that the parties cannot resolve a
dispute by informal negotiations under the preceding Paragraph,
then the position advanced by EPA shall be considered binding
unless, within 10 days after the conclusion of the informal
negotiation period, Settling Defendants invoke the formal dispute
resolution procedures of this Section by serving on the United
States [and the State] a written Statement of Position on the
matter in dispute, including, but not limited to, any factual data,
analysis or opinion supporting that position and any supporting
documentation relied upon by the Settling Defendants. The
-------
- 51 - OSWER DIRECTIVE NO. 9835.17
Statement of Position shall specify the Settling Defendants'
position-as to whether formal dispute resolution should proceed
under paragraph 65 or 66.
b. Within fourteen (14) days after receipt of Settling
Defendants' Statement of Position, EPA will serve on Settling
Defendants its Statement of Position, including, but not limited
to, any factual data, analysis, or opinion supporting that position
and all supporting documentation relied upon by EPA. EPA's
Statement of Position shall include a statement as to whether
formal dispute resolution should proceed under Paragraph 65 or 66.
c. If there is disagreement between EPA and the Settling
Defendants as to whether dispute resolution should proceed under
Paragraph 65 or 66, the parties to the dispute shall follow the
procedures set forth in the paragraph determined by EPA to be
applicable. However, if the Settling Defendants ultimately appeal
to the court to resolve the dispute, the Court shall determine
which paragraph is applicable in accordance with the standards of
applicability set forth in Paragraphs 65 and 66.
65. Formal dispute resolution for disputes pertaining to the
selection or adequacy of any response action and all other disputes
that are accorded review on the administrative record under
applicable principles of administrative law shall be conducted
pursuant to the procedures set forth in this Paragraph. For
purposes of this Paragraph, the adequacy of any response action
includes, without limitation: (1) the adequacy or appropriateness
of plans, procedures to implement plans, or any other items
-------
- 52 - OSWER DIRECTIVE NO. 9835.17
requiring approval by EPA under this Consent Decree; and (2) the
adequacy of the performance of response actions taken pursuant to
this Consent Decree. Nothing in this Consent Decree shall be
construed to allow any dispute by Settling Defendants regarding the
validity of the ROD'S provisions.
a. An administrative record of the dispute shall be
maintained by EPA and shall contain all statements of position,
including supporting documentation, submitted pursuant to this
Paragraph. Where appropriate, EPA may allow submission of
supplemental statements of position by the parties to the dispute.
b. The Director of the Waste Management Division, EPA
Region , will issue a final administrative decision resolving the
dispute based on the administrative record described in Paragraph
65.a. This decision shall be binding upon the Settling Defendants,
subject only to the right to seek judicial review pursuant to
Paragraph 65.c. and d.
c. Any administrative decision made by EPA pursuant to
Paragraph 65.b. shall be reviewable by this Court, provided that a
notice of judicial appeal is filed by the Settling Defendants with
the Court and served on all Parties within 10 days of receipt of
EPA's decision. The notice of judicial appeal shall include a
description of the matter in dispute, the efforts made by the
parties to resolve it, the relief requested, and the schedule, if
any, within which the dispute must be resolved to ensure orderly
implementation of this Consent Decree. The United States may f le
a response to Settling Defendants' notice of judicial appeal.
-------
- 53 - OSWER DIRECTIVE NO. 9835.17
d. In proceedings on any dispute governed by this
Paragraph, Settling Defendants shall have the burden of
demonstrating that the decision of the Waste Management Division
Director is arbitrary and capricious or otherwise not in accordance
with law. Judicial review of EPA's decision shall be on the
administrative record compiled pursuant to Paragraphs 65.a.
66. Formal dispute resolution for disputes that neither
pertain to the selection or adequacy of any response action nor are
otherwise accorded review on the administrative record under
applicable principles of administrative law, shall be governed by
this Paragraph.
a. Following receipt of Settling Defendants' Statement
of Position submitted pursuant to Paragraph 64, the Director of the
Waste Management Division, EPA Region , will issue a final
decision resolving the dispute. The Waste Management Division
Director's decision shall be binding on the Settling Defendants
unless, within 10 days of receipt of the decision, the Settling
Defendants file with the Court and serve on the parties a notice of
judicial appeal setting forth the matter in dispute, the efforts
made by the parties to resolve it, the relief requested, and the
schedule, if any, within which the dispute must be resolved to
ensure orderly implementation of the Consent Decree. The United
States may file a response to Settling Defendants' notice of
judicial appeal.
b. Notwithstanding Paragraph M of Section I
(Background) of this Consent Decree, judicial review of any dispute
-------
- 54 - OSWER DIRECTIVE NO. 9835.17
governed by this Paragraph shall be governed by applicable
provisions of law.
67. The invocation of formal dispute resolution procedures
under this Section shall not extend, postpone or affect in any way
any obligation of the Settling Defendants under this Consent Decree
not directly in dispute, unless EPA or the Court agrees otherwise.
Stipulated penalties with respect to the disputed matter shall
continue to accrue but payment shall be stayed pending resolution
of the dispute as provided in Paragraph 76. Notwithstanding the
stay of payment, stipulated penalties shall accrue from the first
day of noncompliance with any applicable provision of this Consent
Decree. In the event that the Settling Defendant does not prevail
on the disputed issue, stipulated penalties shall be assessed and
paid as provided in Section XXI (Stipulated Penalties).
XXI. STIPULATED PENALTIES
68. Settling Defendants shall be liable for stipulated
penalties in the amounts set forth in Paragraphs 69 and 70 to the
United States [and the State] for failure to comply with the
requirements of this Consent Decree specified below, unless excused
under Section XIX (Force Majeure). "Compliance" by Settling
Defendants shall include completion of the activities under this
Consent Decree or any work plan or other plan approved under this
Consent Decree identified below in accordance with all applicable
requirements of law, this Consent Decree, the sow, and any plans or
other documents approved by EPA pursuant to this Consent Decree and
-------
- 55 - OSWER DIRECTIVE NO. 9835.17
within the specified time schedules established by and approved
under this Consent Decree.
[69. a. The following stipulated penalties shall be payable
per violation per day to the United States [and the State] for any
noncompliance identified in Subparagraph b:
Penalty Per Violation Period of Noncornpliance
Per Day
b. [List violations or compliance milestones]
70. The following stipulated penalties shall be payable per
violation per day to the United States [and the State] for failure
to submit timely or adequate reports [or other written documents]
pursuant to Paragraphs :
Penalty Per Violation Period of Noncompliance
Per Day
71. In the event that EPA assumes performance of a portion or
all of the Work pursuant to Paragraph 84 of Section XXII (Covenants
Not to Sue by Plaintiffs), Settling Defendants shall be liable for
a stipulated penalty in the amount of .]
72. All penalties shall begin to accrue on the day after the
complete performance is due or the day a violation occurs, and
shall continue to accrue through the final day of the correction of
the noncompliance or completion'of the activity. Nothing herein
shall prevent the simultaneous accrual of separate penalties for
separate violations of this Consent Decree.
-------
- 56 - OSWER DIRECTIVE NO. 9835.17
73. Following EPA's determination that Settling Defendants
have failed to comply with a requirement of this Consent Decree,
EPA may give Settling Defendants written notification of the same
and describe the noncompliance. EPA [and the State] may send the
Settling Defendants a written demand for the payment of the
penalties. However, penalties shall accrue as provided in the
prece'ding Paragraph regardless of whether EPA has notified the
Settling Defendants of a violation.
74. All penalties owed to the United States [and the State]
under this section shall be due and payable within 30 days of the
Settling Defendants' receipt from EPA of a demand for payment of
the penalties, unless Settling Defendants invoke the Dispute
Resolution procedures under Section XX (Dispute Resolution). All
payments under this Section shall be paid by certified check made
payable to "EPA Hazardous Substances Superfund," shall be mailed to
[Regional Lockbox number and address], and shall reference CERCLA
Number [Site/Spill ID Number] and DOJ Case Number .
Copies of check(s) paid pursuant to this Section, and any
accompanying transmittal letter(s), shall be sent to the United
States as provided in Section XXVII (Notices and Submissions).
75. The payment of penalties shall not alter in any way
Settling Defendants' obligation to complete the performance of the
Work required under this Consent Decree.
76. Penalties shall continue to accrue as provided in
Paragraph 72 during any dispute resolution period, but need not be
paid until the following:
-------
- 57 - OSWER DIRECTIVE NO. 9835.17
a. If the dispute is resolved by agreement or by a
decision of EPA that is not appealed to this Court, accrued
penalties determined to be owing shall be paid.to EPA [and the
State] within 15 days of the agreement or the receipt of EPA's
decision or order;
b. If the dispute is appealed to this Court and the
United States prevails in whole or in part, Settling Defendants
shall pay all accrued penalties determined by the Court to be owed
to EPA [and the State] within 60 days of receipt of the Court's
decision or order, except as provided in Subparagraph c below;
c. If the District Court's decision is appealed by any
Party, Settling Defendants shall pay all accrued penalties
determined by the District Court to be owing to the United States
[or the State] into an interest-bearing escrow account within 60
days of receipt of the Court's decision or order. Penalties shall
be paid into this account as they continue to accrue, at least
every 60 days. Within 15 days of receipt of the final appellate
court decision, the escrow agent shall pay the balance of the
account to EPA [and the State] or to Settling Defendants to the
extent that they prevail.
77. a. If Settling Defendants fail to pay stipulated
penalties wh«n due, the United States [or the State] may institute
proceedings to collect the penalties, as well as interest.
Settling Defendants shall pay interest on the unpaid balance, which
shall begin to accrue on the date of demand made pursuant to
-------
- 58 - OSWER DIRECTIVE NO. 9835.17
Paragraph 74 at the rate established pursuant to Section 107(a) of
CERCLA, 42 U.S.C. S 9607.
b. Nothing in this Consent Decree shall be construed as
prohibiting, altering, or in any way limiting the ability of the
United States [or the State] to seek any other remedies or
sanctions available by virtue of Settling Defendants' violation of
this Decree or of the statutes and regulations upon which it is
based, including, but not limited to, penalties pursuant to Section
122(1) Of CERCLA.
78. No payments made under this Section shall be tax
deductible for Federal [or State] tax purposes.
XXII. COVENANTS NOT TO SUE BY PLAINTIFFS
[FOR OPERABLE UNIT CONSENT DECREES OR OTHER SITUATIONS IN WHICH THE
UNITED STATES HAS DECIDED NOT TO GRANT A FULL COVENANT NOT TO SUE:]
79. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendants under
the terms of the Consent Decree, and except as specifically
provided in Paragraphs 80, 81, and 83 of this Section, the United
States covenants not to sue or to take administrative action
against Settling Defendants pursuant to Sections 106 and 107(a) of
CERCLA [and Section 7003 of RCRA] for performance of the Work [and
for recovery of Past Response Costs and Future Response Costs].
These covenants not to sue shall take effect upon the receipt by
EPA of the payments required by Paragraph 51 of Section XVII
(Reimbursement of Response Costs). These covenants not to sue are
conditioned upon the complete and satisfactory performance by
Settling Defendants of their obligations under this Consent Decree.
-------
- 59 - OSWER DIRECTIVE NO. 9835.17
These covenants not to sue extend only to the Settling Defendants
and do not extend to any other person.
[FOR CONSENT DECREES IN WHICH THE UNITED STATES HAS DECIDED TO
GRANT A FULL COVENANT NOT TO SU7:: ]
79. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendants under
the terras of the Consent Decree, and except as specifically
provided in Paragraphs 80, 8:., and 83 of this Section, the United
States covenants not to sue or to take administrative action
against Settling Defendants pursuant to Sections 106 and 107(a) of
CERCLA [and Section 7003 of RCRA] relating to the Site. Except
with respect to future liability, these covenants not to sue shall
take effect upon the receipt by EPA of the payments required by
Paragraph 51 of Section XVII (Reimbursement of Response Costs).
With respect to future liability, these covenants not to sue shall
take effect upon Certification of Completion of Remedial Action by
EPA pursuant to Paragraph 47.b of Section XV (Certification of
Completion). These covenants not to sue are conditioned upon the
complete and satisfactory performance by Settling Defendants of
their obligations under this Consent Decree. These covenants not
to sue extend only to the Settling Defendants and do not extend to
any other person.
80. United States' Pre-certification reservations.
Notwithstanding any other provision of this Consent Decree, the
United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or
in a new action, or to issue an administrative order seeking to
-------
- 60 - OSWER DIRECTIVE NO. 9835.17
compel Settling Defendants (1) to perform further response actions
relating to the Site or (2) to reimburse the United States for
additional costs of response if, prior to certification of
completion of the Remedial Action:
(i) conditions at the site, previously unknown to EPA,
are discovered, or
(ii) information, previously unknown to EPA, is received,
in whole or in part,
and these previously unknown conditions or information together
with any other relevant information indicates that the Remedial
Action is not protective of human health or the environment.
81. United States' Post-certification reservations.
Notwithstanding any other provision of this Consent Decree, the
United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or
in a new action, or to issue an administrative order seeking to
compel Settling Defendants (1) to perform further response actions
relating to the Site or (2) to reimburse the United States for
additional costs of response if, subsequent to certification of
completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA,
are discovered, or
(ii) information, previously unknown to EPA, is received,
in whole or in part,
-------
- 61 - OSWER DIRECTIVE NO. 9835.17
and these previously unknown conditions or this information
together with other relevant information indicate that the Remedial
Action is not protective of human health or the environment.
82. For purposes of Paragraph 80, the information and the
conditions known to EPA shall include only that information and
those^ conditions set forth in the Record of Decision for the Site
and the administrative record supporting the Record of Decision.
For purposes of Paragraph 81, the information and the conditions
known to EPA shall include only that information and those
conditions set forth in the Record of Decision, the administrative
record supporting the Record of Decision, and any information
received by EPA pursuant to the requirements of this Consent Decree
prior to Certification of Completion of the Remedial Action.
83. General reservations of rights. The covenants not to sue
set forth above do not pertain to any matters other than those
expressly specified in Paragraph 79. The United States [and the
State] reserve[s], and this Consent Decree is without prejudice to,
all rights against Settling Defendants with respect to all other
matters, including but not limited to, the following:
(1) claims based on a failure by Settling Defendants
to meet a requirement of this Consent Decree;
(2) liability arising from the past, present, or future
disposal, release, or threat of release of Waste Materials
outside of the Site;
(3) liability for damages for injury to, destruction
of, or loss of natural resources;
-------
- 62 - OSWER DIRECTIVE NO. 9835.17
(4) liability for response costs that have been or may
be incurred by [insert the name of all federal agencies which
are trustees for natural resources and which have, or may in
the future, spend funds relating to the Site];
(5) criminal liability;
(6) liability for violations of federal or state law
which occur during or after implementation of the Remedial
Action; and
[(7) previously incurred costs of response above the
amounts reimbursed pursuant to Paragraph 51;]
[(8) liability for additional operable units at the Site
or the final response action;]
[(9) liability for costs that the United States will
incur related to the Site but are not within the definition of
Future Response Costs.]
84. In the event EPA determines that Settling Defendants have
failed to implement any provisions of the Work in an adequate or
timely manner, EPA may perform any and all portions of the Work as
EPA determines necessary. Settling Defendants may invoke the
procedures set forth in Section XX (Dispute Resolution) to dispute
EPA's determination that the Settling Defendants failed to
implement a provision of the Work in an adequate or timely manner
as arbitrary and capricious or otherwise not in accordance with
lav. Such dispute shall be resolved on the administrative record.
Costs incurred by the United States in performing the Work pursuant
to this Paragraph shall be considered Future Response Costs that
-------
- 63 - OSWER DIRECTIVE NO. 9835.17
Settling Defendants shall pay pursuant to Section XVII
(Reimbursement of Response Costs).
85. Notwithstanding any other provision of this Consent
Decree, the United States [and the State] retainfs] all authority
and reserve[s] all rights to take any and all response actions
authorized by law.
[If the State is a Co-plairtiff, insert the State's Covenant not to
Sue the Settling Defendants and reservation of rights.]
XXIII. COVENANTS BY SETTLING DEFENDANTS
86. Settling Defendants hereby covenant not to sue and agree
not to assert any claims or causes of action against the United
States [or the State] with respect to the Site or this Consent
Decree, including, but not limited to, any direct or indirect claim
for reimbursement from the Hazardous Substance Superfund
(established pursuant to the Internal Revenue Code, 26 U.S.C.
S 9507) through CERCLA Sections 106(b)(2), 111, 112, 113 or any
other provision of law, [any claim against the United States,
including any department, agency or instrumentality of the United
States under CERCLA Sections 107 or 113 related to the Site,] or
any claims arising out of response activities at the Site.
However, the Settling Defendants reserve, and this Consent Decree
is without prejudice to, actions against the United States based on
negligent actions taken directly by the United States (not
including oversight or approval of the Settling Defendants plans or
activities) that are brought pursuant to any statute other than
CERCLA and for which the waiver of sovereign immunity is found in a
-------
- 64 - OSWER DIRECTIVE NO. 9835.17
statute other than CERCLA. Nothing in this Consent Decree shall
be deemed to constitute preauthorization of a claim within the
meaning of Section 111 of CERCLA, 42 U.S.C. S 9611, or 40 C.F.R.
S 300.700(d).
XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
87. Nothing in this Consent Decree shall be construed to
create any rights in, or grant any cause of action to, any person
not a party to this Consent Decree. The preceding sentence shall
not be construed to waive or nullify any rights that any person not
a signatory to this decree may have under applicable law. Each of
the Parties expressly reserves any and all rights (including, but
not limited to, any right to contribution), defenses, claims,
demands, and causes of action which each party may have with
respect to any matter, transaction, or occurrence relating in any
way to the Site against any person not a party hereto.
[88. With regard to claims for contribution against Settling
Defendants for matters addressed in this Consent Decree, the
Parties hereto agree that the Settling Defendants are entitled to
such protection from contribution actions or claims as is provided
by CERCLA Section 113(f)(2), 42 U.S.C. S 9613(f)(2).}
89. Th« Settling Defendants agree that with respect to any
suit or claim for contribution brought by them for matters related
to this Consent Decree they will notify the United States [and the
State] in writing no later than 60 days prior to the initiation of
such suit or claim.
-------
- 65 - OSWER DIRECTIVE NO. 9835.17
90. The Settling Defendants also agree that with respect to
any suit or claim for contribution brought against them for matters
related to this Consent Decree they will notify in writing the
United States [and the State] within 10 days of service of the
complaint on them. In addition, Settling Defendants shall notify
the United States [and the State] within 10 days of service or
receipt of any Motion for Summary Judgment and within 10 days of
receipt of any order from a court setting a case for trial.
91. In any subsequent administrative or judicial proceeding
initiated by the United States [or the State] for injunctive
relief, recovery of response costs, or other appropriate relief
relating to the Site, Settling Defendants] shall not assert, and
may not maintain, any defense or claim based upon the principles of
waiver, res judicata. collateral estoppel, issue preclusion, claim-
splitting, or other defenses based upon any contention that the
claims raised by the United States [or the State] in the subsequent
proceeding were or should have been brought in the instant case;
provided, however, that nothing in this Paragraph affects the
enforceability of the covenants not to sue set forth in Section
XXII (Covenants Not to Sue by Plaintiffs).
XXV. ACCESS TO INFORMATION
92. Settling Defendants shall provide to EPA [and the State],
upon request, copies of all documents and information within their
possession or control or tha,t of their contractors or agents
relating to activities at the Site or to the implementation of this
Consent Decree, including, but not limited to, sampling, analysis,
-------
- 66 - OSWER DIRECTIVE NO. 9835.17
chain of custody records, manifests, trucking logs, receipts,
reports, sample traffic routing, correspondence, or other documents
or information related to the Work. Settling Defendants shall also
make available to EPA [and the State], for purposes of
investigation, information gathering, or testimony, their
employees, agents, or representatives with knowledge of relevant
facts concerning the performance of the Work.
93. a. Settling Defendants may assert business
confidentiality claims covering part or all of the documents or
information submitted to Plaintiffs under this Consent Decree to
the extent permitted by and in accordance with Section 104(e)(7) of
CERCLA, 42 U.S.C. S 9604(e)(7), and 40 C.F.R. S 2.203(b).
Documents or information determined to be confidential by EPA will
be afforded the protection specified in 40 C.F.R. Part 2, Subpart
B. If no claim of confidentiality accompanies documents or
information when they are submitted to EPA [and the State], or if
EPA has notified Settling Defendants that the documents or
information are not confidential under the standards of Section
104(e)(7) of CERCLA, the public may be given access to such
documents or information without further notice to Settling
Defendants.
b. The Settling Defendants may assert that certain documents,
records and other information are privileged under the attorney-
client privilege or any other privilege recognized by federal law.
If the Settling Defendants assert such a privilege in lieu of
providing documents, they shall provide the Plaintiffs with the
-------
- 67 - OSWER DIRECTIVE NO. 9835.17
following: (1) the title of the document, record, or information;
(2) the date of the document, record, or information; (3) the name
and title of the author of the document, record, or information;
(4) the name and title of each addressee and recipient; (5) a
description of the contents of the document, record, or
information: and (6) the privilege asserted by Settling Defendants.
However, no documents, reports or other information created or
generated pursuant to the requirements of the consent Decree shall
be withheld on the grounds that they are privileged.
94. No claim of confidentiality shall be made with respect to
any data, including, but not limited to, all sampling, analytical,
monitoring, hydrogeologic, scientific, chemical, or engineering
data, or any other documents or information evidencing conditions
at or around the Site.
XXVI. RETENTION OF RECORDS
95. Until 10 years after the Settling Defendants' receipt of
EPA's notification pursuant to Paragraph 48.b of Section XV
(Certification of Completion of the Work), each Settling Defendant
shall preserve and retain all records and documents now in its
possession or control or which come into its possession or control
that relate in any manner to the performance of the Work or
liability of any person for response actions conducted and to be
conducted at the Site, regardless of any corporate retention policy
to the contrary. Until 10 years after the Settling Defendants'
receipt of EPA's notification pursuant to Paragraph 48.b of Section
XV (Certification of Completion), Settling Defendants shall also
-------
- 68 - OSWER DIRECTIVE NO. 9835.17
instruct their contractors and agents to preserve all documents,
records, and information of whatever kind, nature or description
relating to the performance of the Work.
96. At the conclusion of this document retention period,
Settling Defendants shall notify the United States [and the State]
at least 90 days prior to the destruction of any such records or
documents, and, upon request by the United States [or the State],
Settling Defendants shall deliver any such records or documents to
EPA [or the State]. The Settling Defendants may assert that
certain documents, records and other information are privileged
under the attorney-client privilege or any other privilege
recognized by federal law. If the Settling Defendants assert such
a privilege, they shall provide the Plaintiffs with the following:
(1) the title of the document, record, or information; (2) the date
of the document, record, or information; (3) the name and title of
the author of the document, record, or information; (4) the name
and title of each addressee and recipient; (5) a description of the
subject of the document, record, or information: and (6) the
privilege asserted by Settling Defendants. However, no documents,
reports or other information created or generated pursuant to the
requirements of the Consent Decree shall be withheld on the grounds
that they ar« privileged.
97. Each Settling Defendant hereby certifies, individually,
that it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents or other information
relating to its potential liability regarding the Site since
-------
- 69 - OSWER DIRECTIVE NO. 9835.17
notification of potential liability by the United States or the
State or the filing of suit against it regarding the Site and that
it has fully complied with any and all EPA requests for information
pursuant to Section 104(e) and 122(e) of CERCLA and Section 3007 of
RCRA.
XXVII. NOTICES AND SUBMISSIONS
98. Whenever, under the terms of this Consent Decree, written
notice is required to be given or a report or other document is
required to be sent by one party to another, it shall be directed
to the individuals at the addresses specified below, unless those
individuals or their successors give notice of a change to the
other parties in writing. All notices and submissions shall be
considered effective upon receipt, unless otherwise provided.
Written notice as specified herein shall constitute complete
satisfaction of any written notice requirement of the Consent
Decree with respect to the United States, EPA, [the State,] and the
Settling Defendants, respectively.
As to the United States;
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
Re: DJ #
and
Director, Waste Management Division
United States Environmental Protection Agency
Region
-------
- 70 - OSWER DIRECTIVE NO. 9835.17
AS to EPAi
[Name]
EPA Project Coordinator
United States Environmental Protection Agency
Region
[As to the State:
[Name]
State Project Coordinator
[Address]
As to the Settling Defendants;
[Name]
Settling Defendants' Project Coordinator
[Address]
XXVIII. EFFECTIVE DATE
99. The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court, except
as otherwise provided herein.
XXIX. RETENTION OF JURISDICTION
100. This Court retains jurisdiction over both the subject
matter of this Consent Decree and the Settling Defendants for the
duration of the performance of the terms and provisions of this
Consent Decree for the purpose of enabling any of the Parties to
apply to the Court at any time for such further order, direction,
and relief as may be necessary or appropriate for the construction
or modification of this Consent Decree, or to effectuate or enforce
compliance with its terms, or to resolve disputes in accordance
with Section XX (Dispute Resolution) hereof.
-------
- 71 - OSWER DIRECTIVE NO. 9835.17
XXX. APPENDICES
101. The following appendices are attached to and
incorporated into this Consent Decree:
"Appendix A" is the ROD.
"Appendix B" is the SOW.
"Appendix C" is the description and/or map of the Site.
"Appendix D" is the complete list of the Settling Defendants.
["Appendix E" is the complete list of the Owner Settling
Defendants.]
XXXI. COMMUNITY RELATIONS
102. Settling Defendants shall propose to EPA [and the State]
their participation in the community relations plan to be developed
by EPA. EPA will determine the appropriate role for the Settling
Defendants under the Plan. Settling Defendants shall also
cooperate with EPA [and the State] in providing information
regarding the Work to the public. As requested by EPA [or the
State], Settling Defendants shall participate in the preparation of
such information for dissemination to the public and in public
meetings which may be held or sponsored by EPA [or the State] to
explain activities at or relating to the Site.
XXXII. MODIFICATION
103. Schedules specified in this Consent Decree for
completion of the Work may be modified by agreement of EPA and the
Settling Defendants. All such modifications shall be made in
writing.
-------
- 72 - OSWER DIRECTIVE NO. 9835.17
104. No material modifications shall be made to the SOW
without written notification to and written approval of the United
States, Settling Defendants, and the Court. Prior to providing its
approval to any modification, the United States will provide the
State with a reasonable opportunity to review and comment on the
proposed modification. Modifications to the SOW that do not
materially alter that document may be made by written agreement
between EPA, after providing the State with a reasonable
opportunity to review and comment on the proposed modification, and
the Settling Defendants.
105. Nothing in this Decree shall be deemed to alter the
Court's power to enforce, supervise or approve modifications to
this Consent Decree.
XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
106. This Consent Decree shall be lodged with the Court for a
period of not less than thirty (30) days for public notice and
comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.
S 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the
right to withdraw or withhold its consent if the comments regarding
the Consent Decree disclose facts or considerations which indicate
that the Consent Decree is inappropriate, improper, or inadequate.
Settling Defendants consent to the entry of this Consent Decree
without further notice.
107. If for any reason the Court should decline to approve
this Consent Decree in the form presented, this agreement is
voidable at the sole discretion of any party and the terms of the
-------
- 73 - OSWER DIRECTIVE NO. 9835.17
agreement may not be used as evidence in any litigation between the
Parties.
XXXIV. SIGNATORIES/SERVICE
108. Each undersigned representative of a Settling Defendant
to this Consent Decree and the Assistant Attorney General for
Environment and Natural Resources of the Department of Justice
certifies that he or she is fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and
legally bind such party to this document.
109. Each Settling Defendant hereby agrees not to oppose
entry of this Consent Decree by this Court or to challenge any
provision of this Consent Decree unless the United States has
notified the Settling Defendants in writing that it no longer
supports entry of the Consent Decree.
110. Each Settling Defendant shall identify, on the attached
signature page, the name, address and telephone number of an agent
who is authorized to accept service of process by mail on behalf of
that party with respect to all matters arising under or relating to
this Consent Decree. Settling Defendants hereby agree to accept
service in that manner and to waive the formal service requirements
set forth in Rule 4 of the Federal Rules of Civil Procedure and any
applicable local rules of this Court, including, but not limited
to, service of a summons.
SO ORDERED THIS DAY OF , 19 .
United States District Judge
-------
- 74 - OSWER DIRECTIVE NO. 9835.17
THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. , relating
to the Superfund Site.
FOR THE UNITED STATES OF AMERICA
Date:
[Name]
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[Name]
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[Name]
Assistant United States Attorney
District of _
U.S. Department of Justice
[Address]
[Name]
Assistant Administrator for
Enforcement
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
-------
- 75 - OSWER DIRECTIVE NO. 9835.17
[Name]
Office of Enforcement
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
[Name}
Regional Administrator, Region
U.S. Environmental Protection
Agency
[Address]
[Name]
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region
[Address}
-------
- 76 - OSWER DIRECTIVE NO. 9835.17
United States v.
Consent Decree Signature Page
FOR THE STATE OF
Date:
[Name]
[Title]
[Address]
-------
- 77 - OSWER DIRECTIVE NO. 9835.17
THE UNDERSIGNED PARTY enters into this Consent Decree in the
matter of United States v. _, relating
to the Superfund Site.
FOR COMPANY, INC. */
Date:
[Name — Please Type]
[Title — Please Type]
[Address — Please Type]
Agent Authorized to Accept Service on Behalf of Above-signed
Party:
Name: [Please Type]
Title:
Address:
Tel. Number:
A separate signature page must be signed by each corporation,
individual or other legal entity that is settling with the
United States.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL 2 199!
E OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive No.
9835.15a
MEMORANDUM
SUBJECT: Supplemental Gui
-------
the RI/FS scoping process. At many sites, public scoping
meetings may be the appropriate means to accomplish this.
EPA Responsibilities
In order to complete the RI/FS and the baseline risk
assessment and select a remedy without undue delay, it is
imperative that there be a timely exchange of information between
the PRPs and EPA throughout the entire process. Timely
submission of high quality site characterization deliverables by
the PRP will allow EPA to develop the baseline risk assessment,
but the PRP also needs information from EPA to develop an
acceptable FS.
In order to develop a list of potential remedial
alternatives, the PRP must know the chemicals of concern and the
media of concern that are to be treated (or contained where
appropriate).. As soon as EPA has evaluated the site
characterization data submitted by the PRP, EPA should develop
and release two or more risk assessment memoranda to all
interested parties. One should list the chemicals of concern for
human health and ecological effects and their toxicity values;
the other should list the potential exposure scenarios, exposure
assumptions, and exposure point concentrations that EPA plans to
use in the baseline risk assessment. The purpose of releasing
this information is three-fold: 1) to keep the public informed
about progress at the site, 2) to allow public input at this
stage, and 3) to give the PRP sufficient information to continue
developing remedial alternatives that are appropriate for the
site.
After considering all submitted comments, EPA will prepare
the baseline risk assessment report. EPA should release this
report to the public at the same time it releases the final RI
report prepared by the PRP. The PRP needs this information to
continue work on the FS report and on treatability studies.
Although EPA will consider any comments submitted on the baseline
risk assessment memoranda in drafting the baseline rj.sk
assessment, EPA is not obligated to respond to comments at that
point in the process. If, after the baseline risk assessment
report is released, any commenters feel that EPA did not address
their concerns in the baseline risk assessment report, they
should notify EPA of their continued concerns during the formal
public comment period, i.e., after the Proposed Plan is released.
This notification should clearly identify the previous comments
that were not addressed to ensure that EPA addresses all that are
considered significant in the responsiveness summary of the ROD.
Re-submission of the comments is not necessary.
-------
RI/FS Schedule
Implementing these new procedures should not lengthen the
time it takes to complete an RI/FS and select a remedy at most
sites. To minimize delays, frequent discussions should be held
with PRPs and the public to keep them informed of site progress
and current EPA guidances and policies.
EPA seeks to make clear that it will not repeatedly review
PRPs1 RI/FS deliverables. If PRPs do not revise their
deliverables and the draft RI and FS to reflect EPA comments in a
timely way, EPA should consider either taking over the RI and/or
FS or writing its own supplements to these documents.
Revisions to the Model AOC
All PRP risk assessment deliverables have been eliminated
from the AOC. A change has also been made in Task III: Site
Characterization. PRPs are now required to submit all sampling
results in a computerized format in order to allow EPA to rapidly
evaluate the collected data and develop the baseline risk
assessment.
A new section has also been added in the AOC in order to
emphasize EPA's oversight role in evaluating the PRPs1 estimates
of residual risks associated with various remedial alternatives
in the feasibility study.
The section on dispute resolution in the AOC has also been
modified by excluding the baseline risk assessment from dispute
resolution. The baseline risk assessment is not a PRP
deliverable required under an AOC but an EPA document. All
interested parties have an opportunity to review and comment on
two baseline risk assessment memoranda prepared by EPA during the
RI phase. EPA will respond to significant comments on the final
baseline risk assessment, the final RI, the final FS, and the
Proposed Plan during the formal comment period.
Model SOW
All PRP baseline risk assessment deliverables have been
removed. In addition, EPA will now review and approve the PRPs1
Technical Memorandum Documenting Revised Remedial Action
Objectives and the Technical Memorandum on Remedial Technologies,
Alternatives and Screening in order to "ensure that the PRPs have
properly incorporated the findings from EPA's baseline risk
assessment. Language was also ad"Ud recommending an additional
point of EPA management review before EPA finalizes the baseline
risk assessment.
After initial issues are worked out, EPA expects that this
revised process will help reduce the time it takes to complete an
-------
acceptable RI/FS. We will re-evaluate this process as we gain
more experience.
If you have any questions about this policy, please contact
Stephen Ells, Chief, Technical Oversight Section, Office of Waste
Programs Enforcement, at FTS 475-9803.
cc: Waste Management Division Directors, Regions I-X
Regional Counsel, Regions I-X
Regional CERCLA Branch Chiefs, Regions I-X
Regional CERCLA Section Chiefs, Regions I-X
Attachments
-------
MODEL STATEMENT OF WORK FOR A
REMEDIAL INVESTIGATION AND FEASIBILITY STUDY
CONDUCTED BY POTENTIALLY RESPONSIBLE PARTIES
INSTRUCTIONS
This model statement of work (SOW) was developed to provide
potentially responsible parties (PRPs) direction in performing
the tasks that are required to successfully complete a remedial
investigation/feasibility study (RI/FS). A SOW for a PRP-lead
RI/FS must be used in conjunction with the Office of Emergency
and Remedial Response's October 1988 Guidance for Conducting
Remedial Investigations and Feasibility Studies Under CERCLA
(hereafter referred to as the RI/FS Guidance) and [should be
used] with the Office of Waste Programs Enforcement's
[forthcoming] Guidance on Oversight of Potentially Responsible
Party Remedial Investigations and Feasibility Studies. The
organization of this model SOW is according to the tasks that
must be performed during a PRP-conducted RI/FS. These tasks
include:
Task l Scoping;
Task 2 Community Relations;
Task 3 Site Characteristics;
[Task 4 Baseline Risk Assessment;]
Task 4 Treatability Studies;
Task 5 Development & Screening of Remedial
Alternatives;
Task 6 Detailed Analysis of Remedial Alternatives.
This model SOW is written on the general approach that a PRP
RI/FS is commenced pursuant to an Administrative Order on Consent
(AOC) with an attached SOW, and that the PRPs perform work and
submit deliverables to EPA. Depending on site circumstances and
the relationship to PRPs, it may be necessary to modify this
management approach. Moreover, because the work required to
perform a RI/FS is dependent on a site's complexity and the
amount of available information, it may be necessary to modify
the components of this model SOW in order to tailor the tasks to
the specific conditions at a site. Similarly, the level of
detail within the model SOW will vary according to the site. The
Regions have discretion to develop a site-specific SOW that
follows this model SOW, including portions of the work to be
performed by EPA, technical provisions, deliverables and
approvals. [An example of an alteration to this model SOW may
include the PRP's responsibilities concerning the baseline risk
assessment. Because the baseline risk assessment serves as a
primary means for supporting enforcement decisions at most
sites,] EPA, however/ will perform the baseline risk assessment,
and no baseline risk assessment deliverables will be required of
PRPs. While not preferred as a general approach, at some sites
EPA may develop itself, or in negotiations, a work plan rather
than a SOW and then enter into an AOC.
-------
ii Annotated SOW (9835.8A)
When special notice for a RI/FS is issued, at most sites a
draft SOW should be attached as an addendum to a draft AOC.
Prior to the issuance of special notice, EPA, generally with
contractor assistance, will determine both the objectives of the
RI/FS and a general approach for managing the site. Determining
the site objectives and a general site strategy will be required
regardless of whether an administrative order is signed with the
PRPs or the RI/FS is Fund-financed.
The site objectives should specify the purpose of any
activities to be conducted at the site, including any interim
actions that may be necessary, as well as the objectives of the
required remedial actions (e.g., the preliminary remediation
goals, PRGs). These objectives should specify the potential
contaminants and media of concern, the likely exposure pathways
and receptors, and an acceptable contaminant level or range of
levels for each exposure route. The site objectives are
developed and based on existing site information, contaminant-
specific AJRARs, when available, and risk related factors.
The site management strategy is developed once the
objectives have been established and identifies the study
boundary areas and the optimal sequence of site activities,
including whether the site may best be remedied as separate
operable units. The general management approach should include:
identifying the types of actions that may be required to address
site problems, identifying any interim actions that are necessary
to mitigate potential threats or prevent further environmental
degradation, and determining the optimal sequence of activities
to be conducted at the site. Also included in the site
management strategy should be the decision as to whether the RI
will serve as a continuation of the PRP search. This would be
appropriate at sites such as area wide groundwater contamination
or stream contamination where all of the sources of contamination
are not yet well defined.
The deliverables described in this model SOW fall under one
of three management categories. Under the first category,
deliverables must be approved by EPA before work can either begin
or continue. This includes the work plan and the site sampling
and analysis plan. Similarly, EPA approval of the [final risk
assessment], RI report, treatability studies and FS is the
general approach. Under the second category, EPA may exercise an
option, in drafting the site-specific SOW, to either comment on
or review and approve the deliverables. Review and approval of
deliverables under this second category will be based on the
particular circumstances of the site or practices of the Regional
office. This category will include most of the deliverables that
are described in this model SOW, such as technical memoranda and
reports. A middle ground is to allow work in these areas to
proceed without resubmittal and approval so long as the changes
required by EPA are fully reflected in subsequent deliverables.
-------
iii Annotated SOW (9835.8A)
This approach of commenting strikes a balance between excessive
approval and dispute resolution of numerous interim activities by
PRPs, which cumulatively results in a lengthy RI/FS, and review
at the end of the six major components of the RI/FS, which could
result in months of unacceptable work not detected until late in
the process. It also assures focus on the major deliverables.
In addition, consistent with the RI/FS guidance, some work is
simultaneously done. Under the third category, deliverables do
not require comment from EPA. This category includes PRP
progress reports. A summary of the major deliverables under
categories one and two, as outlined in this model SOW, is
included in the document.
Interim deliverables in addition to those reguired by the
RI/FS Guidance are described in this model SOW. These
deliverables are appropriate because of the different
relationships and interactions between a Fund-lead and PRP-lead
RI/FS. Review of these deliverables will help to assure EPA that
the work being performed meets the terms and conditions of the
AOC. Those deliverables other than what are required by the
RI/FS Guidance that are described within this model SOW may not
be necessary or appropriate for all sites. Similarly,
deliverables other than what are described in this model SOW may
be more appropriate for a particular site. The deliverables
determined to be appropriate for a particular site should be
approved by EPA management and must be specified in the AOC. The
timing of the RI/FS and available oversight resources should be
considered prior to determining the appropriate deliverables.
Offices within the Region other than Superfund which will concur
or comment on PRP deliverables should be consulted during the
scoping process.
The Remedial Project Manager (RPM) should assure good
communications with the PRPs. This includes meetings to discuss
EPA's expectations before major phases of work are begun and to
review the conclusions of major components of the RI/FS. In
addition, the RPM should assure that EPA management is informed
and has input on major components of the RI/FS. While this
varies from site to site, management review usually is
appropriate at scoping, final review of the work plan, before
final comments are submitted on the RI, before EPA finalizes the
baseline risk assessment, and as the FS is finally developed.
-------
IV
Annotated SOW (9835.8A)
SUMMARY OF MAJOR DELIVERABLES
(AS OUTLINED IN THIS MODEL SOW FOR PRP-CONDUCTED RI/FS)
TASK/DELIVERABLE
TASK 1 SCOPING
RI/FS Work Plan
Sampling and
Analysis Plan (SAP)
Site Health and
Safety Plan
MANAGEMENT CATEGORY
(1) Review and Approve
(1) Review and Approve
(2) Review and Comment
TASK 3 SITE CHARACTERIZATION
Technical Memorandum
on Modeling of site
Characteristics (where
appropriate)
Preliminary Site
Characterization
Summary
Draft Remedial
Investigation (RI)
Report
[Task 4 - Baseline Risk Assessment]
TASK 4 TREATABILITY STUDIES
Technical Memorandum
Identifying
Candidate
Technologies
Treatability Testing
Statement of Work
Treatability Testing
Work Plan (or amendment
to original)
(2) Review and Approve
(2) Review and Comment
(1) Review and Approve
(2) Review and Approve
(2) Review and Comment
(1) Review and Approve
See the Model RI/FS Administrative Order on Consent
(AOC) for additional reporting requirements, and
further instructions on submittal and dispositions of
deliverables.
-------
v Annotated SOW (9835.8A)
Treatability Study (1) Review and Approve
SAP (or amendment to
original)
Treatability Study (2) Review and Comment
Site Health and
Safety Plan (or
amendment to original)
Treatability Study (1) Review and Approve
Evaluation Report
TASK 5 DEVELOPMENT AND SCREENING OF REMEDIAL ALTERNATIVES
Technical Memorandum (2) Review and Approve
Documenting Revised
Remedial Action
Objectives
Technical Memorandum (2) Review and Approve
on Remedial
Technologies,
Alternatives and
Screening
TASK 6 DETAILED ANALYSIS OF REMEDIAL ALTERNATIVES
Technical Memorandum (2) Review and Approve
Summarizing Results of
Comparative Analysis of
Alternatives
Draft Feasibility (1) Review and Approve
Study (FS) Report
-------
MODEL STATEMENT OF WORK FOR PRP-CONDUCTED
REMEDIAL INVESTIGATIONS AND FEASIBILITY STUDIES
INTRODUCTION
The purpose of this remedial investigation/feasibility study
(RI/FS) is to investigate the nature and extent of contamination
at a site, [assess the potential risk to human health and the
environment,] and develop and evaluate potential remedial
alternatives. The RI and FS are interactive and may be conducted
concurrently so that the data collected in the RI influences the
development of remedial alternatives in the FS, which in turn
affects the data needs and the scope of treatability studies.
The respondent will conduct this RI/FS (except for the
baseline risk assessment component) and will produce a draft RI
and FS report that are in accordance with this statement of work,
the Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA (U.S. EPA, Office of Emergency
and Remedial Response, October 1988), and any other guidances
that EPA uses in conducting a RI/FS (a list of the primary
guidances is attached), as well as any additional requirements in
the administrative order. The RI/FS Guidance describes the
report format and the required report content. The respondent
will furnish all necessary personnel, materials, and services
needed, or incidental to, performing the RI/FS, except as
otherwise specified in the administrative order.
At the completion of the RI/FS, EPA will be responsible for
the selection of a site remedy and will document this selection
in a Record of Decision (ROD). The remedial action alternative
selected by EPA will meet the cleanup standards specified in
CERCLA Section 121. That is, the selected remedial action will
be protective of human health and the environment, will be in
compliance with, or include a waiver of, applicable or relevant
and appropriate requirements of other laws, will be cost-
effective, will utilize permanent solutions and alternative
treatment technologies or resource recovery technologies, to the
maximum extent practicable, and will address the statutory
preference for treatment as a principal element. The final RI/FS
report, as adopted by EPA, and EPA'a baseline risk assessment
will, with the administrative record, form the basis for the
selection of the site's remedy and will provide the information
necessary to support the development of the ROD.
As specified in CERCLA Section 104(a)(1), as amended by
SARA, EPA will provide oversight of the respondent's activities
throughout the RI/FS. The respondent will support EPA's
initiation and conduct of activities related to the
implementation of oversight activities.
-------
2 Annotated SOW (9835.8A)
TASK 1 - SCOPING (RI/FS Guidance, Chapter 2)
Scoping is the initial planning process of the RI/FS and is
initiated by EPA prior to issuing special notice. During this
time, the site-specific objectives of the RI/FS, including the
preliminary remediation goals (PRGs), are determined by EPA.
Scoping is therefore initiated prior to negotiations
between the PRPs and EPA, and is continued, repeated as
necessary, and refined throughout the RI/FS process. In addition
to developing the site specific objectives of the RI/FS, EPA will
determine a general management approach for the site. Consistent
with the general management approach, the specific project scope
will be planned by the respondent and EPA. The respondent will
document the specific project scope in a work plan. Because the
work required to perform a RI/FS is not fully known at the onset,
and is phased in accordance with a site's complexity and the
amount of available information, it may be necessary to modify
the work plan during the RI/FS to satisfy the objectives of the
study.
The site objectives for the site
located in the State of have been determined
preliminarily, based on available information, to be the
following:
The strategy for the general management of the_
site will include the following:
When scoping the specific aspects of a project, the
respondent must meet with EPA to discuss all project planning
decisions and special concerns associated with the site. The
following activities shall be performed by the respondent as a
function of the project planning process.
-------
3 Annotated SOW (9835.8A)
a. Site Background (2.2)
The respondent will gather and analyze the existing site
background information and will conduct a site visit to assist in
planning the scope of the RI/FS.
Collect and analyze existing data and document the need for
additional data (2.2.2; 2.2.6; 2.2.7)
Before planning RI/FS activities, all existing site data
will be thoroughly compiled and reviewed by the respondent.
Specifically, this will include presently available data
relating to the varieties and quantities of hazardous
substances at the site, and past disposal practices. This
will also include results from any previous sampling events
that may have been conducted. The respondent will refer to
Table 2-1 of the RI/FS Guidance for a comprehensive list of
data collection information sources. This information will
be utilized in determining additional data needed to
characterize the site, better define potential applicable or
relevant and appropriate requirements (ARARs), and develop a
range of preliminarily identified remedial alternatives.
Data Quality Objectives (DQOs) will be established subject
to EPA approval which specify the usefulness of existing
data. Decisions on the necessary data and DQOs will be made
by EPA.
Conduct Site Visit
The respondent will conduct a site visit during the project
scoping phase to assist in developing a conceptual
understanding of sources and areas of contamination as well
as potential exposure pathways and receptors at the site.
During the site visit the respondent should observe the
site's physiography, hydrology, geology, and demographics,
as well as natural resource, ecological and cultural
features. This information will be utilized to better scope
the project and to determine the extent of additional data
necessary to characterize the site, better define potential
ARARs, and narrow the range of preliminarily identified
remedial alternatives.
b. Project Planning (2.2)
Once the respondent has collected and analyzed existing data
and conducted a site visit, the specific project scope will be
planned. Project planning activities include those tasks
described below as well as identifying data needs, developing a
work plan, designing a data collection program, and identifying
health and safety protocols. The respondent will meet with EPA
regarding the following activities and before the drafting of the
-------
4 Annotated SOW (9835.8A)
scoping deliverables below. These tasks are described in Section
c. of this task since they result in the development of specific
required deliverables.
Refine and document preliminary remedial action objectives
and alternatives (2.2.3)
Once existing site information has been analyzed and an
understanding of the potential site risks has been
determined by EPA, the respondent will review and, if
necessary, refine the remedial action objectives that have
been identified by EPA for each actually or potentially
contaminated medium. The revised remedial action objectives
will be documented in a technical memorandum and subject to
EPA approval. The respondent will then identify a
preliminary range of broadly defined potential remedial
action alternatives and associated technologies. The range
of potential alternatives should encompass where
appropriate, alternatives in which treatment significantly
reduces the toxicity, mobility, or volume of the waste;
alternatives that involve containment with little or no
treatment; and a no-action alternative.
Document the need for treatability studies (2.2.4)
If remedial actions involving treatment have been identified
by the respondent or EPA, treatability studies will be
required except where the respondent can demonstrate to
EPA's satisfaction that they are not needed. Where
treatability studies are needed, initial treatability
testing activities (such as research and study design) will
be planned to occur concurrently with site characterization
activities (see Tasks 3 and 5).
Begin preliminary identification of Potential ARARs (2.2.5)
The respondent will conduct a preliminary identification of
potential state and federal ARARs (chemical-specific,
location-specific and action-specific) to assist in the
refinement of remedial action objectives, and the initial
identification of remedial alternatives and ARARs associated
with particular actions. ARAR identification will continue
as site conditions, contaminants, and remedial action
alternatives are better defined.
c. Scoping Deliverables (2.3)
At the conclusion of the project planning phase, the
respondent will submit a RI/FS work plan, a sampling and analysis
plan, and a site health and safety plan. The RI/FS work plan and
sampling and analysis plan must be reviewed and approved by EPA
prior to the initiation of field activities.
-------
5 Annotated SOW (9835.8A)
RI/FS Work Plan (2.3.1)
A work plan documenting the decisions and evaluations
completed during the scoping process will be submitted to
EPA for review and approval. The work plan should be
developed in conjunction with the sampling and analysis plan
and the site health and safety plan, although each plan may
be delivered under separate cover. The work plan will
include a comprehensive description of the work to be
performed, including the methodologies to be utilized, as
well as a corresponding schedule for completion. In
addition, the work plan must include the rationale for
performing the required activities. Specifically, the work
plan will present a statement of the problem(s) and
potential problem(s) posed by the site and the objectives of
the RI/FS. Furthermore, the plan will include a site
background summary setting forth the site description
including the geographic location of the site, and to the
extent possible, a description of the site's physiography,
hydrology, geology, demographics, ecological, cultural and
natural resource features; a synopsis of the site history
and a description of previous responses that have been
conducted at the site by local, state, federal, or private
parties; a summary of the existing data in terms of physical
and chemical characteristics of the contaminants identified,
and their distribution among the environmental media at the
site. The plan will recognize EPA's preparation of the
baseline risk assessment. In addition, the plan will
include a description of the site management strategy
developed by EPA during scoping; a preliminary
identification of remedial alternatives and data needs for
evaluation of remedial alternatives. The plan will reflect
coordination with treatability study requirements (see Tasks
1 and 4). It will include a process for and manner of
identifying Federal and state ARARs (chemical-specific,
location-specific and action-specific).
Finally, the major part of the work plan is a detailed
description of the tasks to be performed, information needed
for each task and for EPA's baseline risk assessment,
information to be produced during and at the conclusion of
each task, and a description of the work products that will
be submitted to EPA. This includes the deliverables set
forth in the remainder of this statement of work; a schedule
for each of the required activities which is consistent with
the RI/FS guidance; and a project management plan, including
a data management plan (e.g., requirements for project
management systems and software, minimum data requirements,
data format and backup data management), monthly reports to
EPA and meetings and presentations to EPA at the conclusion
of each major phase of the RI/FS. The respondent will refer
to Appendix B of the RI/FS Guidance for a comprehensive
-------
6 Annotated SOW (9835.8A)
description of the contents of the required work plan.
Because of the unknown nature of the site and iterative
nature of the RI/FS, additional data requirements and
analyses may be identified throughout the process. The
respondent will submit a technical memorandum documenting
the need for additional data, and identifying the DQOs
whenever such requirements are identified. In any event,
the respondent is responsible for fulfilling additional data
and analysis needs identified by EPA consistent with the
general scope and objectives of this RI/FS.
Sampling and Analysis Plan (2.3.2)
The respondent will prepare a sampling and analysis plan
(SAP) to ensure that sample collection and analytical
activities are conducted in accordance with technically
acceptable protocols and that the data meet DQOs. The SAP
provides a mechanism for planning field activities and
consists of a field sampling plan (FSP) and a quality
assurance project plan (QAPP).
The FSP will define in detail the sampling and data-
gathering methods that will be used on the project. It will
include sampling objectives, sample location and frequency,
sampling equipment and procedures, and sample handling and
analysis. The QAPP will describe the project objectives and
organization, functional activities, and quality assurance
and quality control (QA/QC) protocols that will be used to
achieve the desired DQOs. The DQOs will at a minimum
reflect use of analytic methods to identifying contamination
and remediating contamination consistent with the levels for
remedial action objectives identified in the proposed
National Contingency Plan, pages 51425-26 and 51433
(December 21, 1988). In addition, the QAPP will address
sampling procedures, sample custody, analytical procedures,
and data reduction, validation, reporting and personnel
qualifications. Field personnel should be available for EPA
QA/QC training and orientation where applicable. The
respondent will demonstrate, in advance to EPA's
satisfaction, that each laboratory it may use is qualified
to conduct the proposed work. This includes use of methods
and analytical protocols for the chemicals of concern in the
media of interest within detection and quantification limits
consistent with both QA/QC procedures and DQOs approved in
the QAPP for the site by EPA. The laboratory must have and
follow an approved QA program. If a laboratory not in the
Contract Laboratory Program (CLP) is selected, methods
consistent with CLP methods that would be used at this site
for the purposes proposed and QA/QC procedures approved by
EPA will be used. If the laboratory is not in the CLP
program, a laboratory QA program must be submitted for EPA
review and approval. EPA may require that the respondent
-------
7 Annotated SOW (9835.8A)
submit detailed information to demonstrate that the
laboratory is qualified to conduct the work, including
information on personnel qualifications, equipment and
material specifications. The respondent will provide
assurances that EPA has access, to laboratory personnel,
equipment and records for sample collection, transportation
and analysis.
Site Health and Safety Plan (2.3.3)
A health and safety plan will be prepared in conformance
with the respondent's health and safety program, and in
compliance with OSHA regulations and protocols. The health
and safety plan will include the 11 elements described in
the RI/FS Guidance, such as a health and safety risk
analysis, a description of monitoring and personal
protective equipment, medical monitoring, and site control.
It should be noted that EPA does not "approve" the
respondent's health and safety plan, but rather EPA reviews
it to ensure that all necessary elements are included, and
that the plan provides for the protection of human health
and the environment.
TASK 2 - COMMUNITY RELATIONS
The development and implementation of community relations
activities are the responsibility of EPA. The critical community
relations planning steps performed by EPA include conducting
community interviews and developing a community relations plan.
Although implementation of the community relations plan is the
responsibility of EPA, the respondent may assist by providing
information regarding the site's history, participating in public
meetings, or by preparing fact sheets for distribution to the
general public. Two or more baseline risk assessment memoranda
will be prepared by EPA which will summarize the toxicity
assessment and exposure assessment components of the baseline
risk assessment. EPA will make these memoranda available to all
interested parties for comment and place them in the
Administrative Record. (EPA is not required, however, to formally
respond to significant comments except during the formal public
comment period on the proposed plan.) In addition, the
respondent may establish a community information repository, at
or near the site, to house one copy of the administrative record.
The extent of PRP involvement in community relations activities
is left to the discretion of EPA. The respondents' community
relations responsibilities, if any, are specified in the
community relations plan. All PRP-conducted community relations
activities will be subject to oversight by EPA.
-------
8 Annotated SOW (9835.8A)
TASK 3 - SITE CHARACTERIZATION (RI/FS Guidance, Chapter 3)
As part of the RI, the respondent will perform the
activities described in this task, including the preparation of a
site characterization summary and a RI report. The overall
objective of site characterization is to describe areas of a site
that may pose a threat to human health or the environment. This
is accomplished by first determining a site's physiography,
geology, and hydrology. Surface and subsurface pathways of
migration will be defined. The respondent will identify the
sources of contamination and define the nature, extent, and
volume of the sources of contamination, including their physical
and chemical constituents as well as their concentrations at
incremental locations to background in the affected media. The
respondent will also investigate the extent of migration of this
contamination as well as its volume and any changes in its
physical or chemical characteristics, to provide for a
comprehensive understanding of the nature and extent of
contamination at the site. Using this information, contaminant.
fate and transport is then determined and projected.
During this phase of the RI/FS, the work plan, SAP, and
health and safety plan are implemented. Field data are collected
and analyzed to provide the information required to accomplish
the objectives of the study. The respondent will notify EPA at
least two weeks in advance of the field work regarding the
planned dates for field activities, including ecological field
surveys, field lay out of the sampling grid, excavation,
installation of wells, initiating sampling, installation and
calibration of equipment, pump tests, and initiation of analysis
and other field investigation activities. The respondent will
demonstrate that the laboratory and type of laboratory analyses
that will be utilized during site characterization meets the
specific QA/QC requirements and the DQOs of the site
investigation as specified in the SAP. In view of the unknown
site conditions, activities are often iterative, and to satisfy
the objectives of the RI/FS it may be necessary for the
respondent to supplement the work specified in the initial work
plan. In addition to the deliverables below, the respondent will
provide a monthly progress report and participate in meetings at
major points in the RI/FS.
a. Field Investigation (3.2)
The field investigation includes the gathering of data to
define site physical and biological characteristics, sources of
contamination, and the nature and extent of contamination at the
site. These activities will be performed by the respondent in
accordance with the work plan and SAP. At a minimum, this shall
address the following:
-------
9 Annotated SOW (9835.8A)
Implement and document field support activities (3.2.1)
The respondent will initiate field support activities
following approval of the work plan and SAP. Field support
activities may include obtaining access to the site,
scheduling, and procuring equipment, office space,
laboratory services, and/or contractors. The respondent
will notify EPA at least two weeks prior to initiating field
support activities so that EPA may adequately schedule
oversight tasks. The respondent will also notify EPA in
writing upon completion of field support activities.
Investigate and define site physical and biological
characteristics (3.2.2)
The respondent will collect data on the physical and
biological characteristics of the site and its surrounding
areas including the physiography, geology, and hydrology,
and specific physical characteristics identified in the work
plan. This information will be ascertained through a
combination of physical measurements, observations, and
sampling efforts and will be utilized to define potential
transport pathways and human and acological receptor
populations. In defining the site's physical
characteristics the respondent will also obtain sufficient
engineering data (such as pumping characteristics) for the
projection of contaminant fate and transport, and
development and screening of remedial action alternatives,
including information to assess treatment technologies.
Define sources of contamination (3.2.3)
The respondent will locate each source of contamination.
For each location, the areal extent and depth of
contamination will be determined by sampling at incremental
depths on a sampling grid. The physical characteristics and
chemical constituents and their concentrations will be
determined for all known and discovered sources of
contamination. The respondent shall conduct sufficient
sampling to define the boundaries of the contaminant sources
to th« level established in the QA/QC plan and DQOs.
Defining the source of contamination will include analyzing
the potential for contaminant release (e.g., long term
leaching from soil), contaminant mobility and persistence,
and characteristics important for evaluating remedial
actions, including information to assess treatment
technologies.
-------
10 Annotated SOW (9835.8A)
Describe the nature and extent of contamination (3.2.4)
The respondent will gather information to describe the
nature and extent of contamination as a final step during
the field investigation. To describe the nature and extent
of contamination, the respondent will utilize the
information on site physical and biological characteristics
and sources of contamination to give a preliminary estimate
of the contaminants that may have migrated. The respondent
will then implement an iterative monitoring program and any
study program identified in the work plan or SAP such that
by using analytical techniques sufficient to detect and
quantify the concentration of contaminants, the migration of
contaminants through the various media at the site can be
determined. In addition, the respondent will gather data for
calculations of contaminant fate and transport. This
process is continued until the area and depth of
contamination are known to the level of contamination
established in the QA/QC plan and DQOs. EPA will use the
information on the nature and extent of contamination to
determine the level of risk presented by the site.
Respondents will use this information to help to determine
aspects of the appropriate remedial action alternatives to
be evaluated.
b. Data Analyses (3.4)
Evaluate site characteristics (3.4.1)
The respondent will analyze and evaluate the data to
describe: (1) site physical and biological characteristics,
(2) contaminant source characteristics, (3) nature and
extent of contamination and (4) contaminant fate and
transport. Results of the site physical characteristics,
source characteristics, and extent of contamination analyses
are utilized in the analysis of contaminant fate and
transport. The evaluation will include the actual and
potential magnitude of releases from the sources, and
horizontal and vertical spread of contamination as well as
mobility and persistence of contaminants. Where modeling is
appropriate, such models shall be identified to EPA in a
technical memorandum prior to their use. All data and
programming, including any proprietary programs, shall be
made available to EPA together with a sensitivity analysis.
The RI data shall be presented in a format (i.e., computer
disc or equivalent) to facilitate EPA1a preparation of the
baseline risk assessment. The Respondent shall agree to
discuss and then collect any data gaps identified by the EPA
that is needed to complete the baseline risk assessment.
(See "Guidance for Data Oseability in Risk Assessment -
OSWER Directive f 9285.7-05 - October 1990.) Also, this
evaluation shall provide any information relevant to site
-------
11 Annotated SOW (9835.8A)
characteristics necessary for evaluation of the need for
remedial action in the baseline risk assessment and for the
development and evaluation of remedial alternatives.
Analyses of data collected for site characterization will
meet the DQOs developed in the QA/QC plan stated in the SAP
(or revised during the RI).
c. Data Management Procedures (3.5)
The respondent will consistently document the quality and
validity of field and laboratory data compiled during the RI.
Document field activities (3.5.1)
Information gathered during site characterization will be
consistently documented and adequately recorded by the
respondent in well maintained field logs and laboratory
reports. The method(s) of documentation must be specified
in the work plan and/or the SAP. Field logs must be
utilized to document,observations, measurements, and
significant events that have occurred during field
activities. Laboratory reports must document sample
custody, analytical responsibility, analytical results,
adherence to prescribed protocols, nonconformity events,
corrective measures, and/or data deficiencies.
Maintain sample management and tracking (3.5.2; 3.5.3)
The respondent will maintain field reports, sample shipment
records, analytical results, and QA/QC reports to ensure
that only validated analytical data are reported and
utilized in the development and evaluation of remedial
alternatives. Analytical results developed under the work
plan will not be included in any site characterization
reports unless accompanied by or cross-referenced to a
corresponding QA/QC report. In addition, the respondent
will establish a data security system to safeguard chain-of
custody forms and other project records to prevent loss,
damage, or alteration of project documentation.
d. Site Characterization Deliverables (3.7)
The respondent will prepare the preliminary site
characterization summary and [once the baseline risk assessment
(Task 4) is complete,] the remedial investigation report.
Preliminary Site Characterization Summary (3.7.2)
After completing field sampling and analysis, the respondent
will prepare a concise site characterization summary. This
summary will review the investigative activities that have
taken place, and describe and display site data documenting
-------
12 Annotated SOW (9835.8A)
the location and characteristics of surface and subsurface
features and contamination at the site including the
affected medium, location, types, physical state,
concentration of contaminants and quantity. In addition,
the location, dimensions, physical condition and varying
concentrations of each contaminant throughout each source
and the extent of contaminant migration through each of the
affected media will be documented. The site
characterization summary will provide EPA with a preliminary
reference for developing the risk assessment, and evaluating
the development and screening of remedial alternatives and
the refinement and identification of ARARs.
Remedial Investigation (RI) Report (3.7.3)
The respondent will prepare and submit a draft RI report to
EPA for review and approval.[ after completion of the
baseline risk assessment (see Task 4).] This report shall
summarize results of field activities to characterize the
site, sources of contamination, nature and extent of
contamination and the fate and transport of contaminants.
The respondent will refer to the RI/FS Guidance for an
outline of the report format and contents. Following
comment by EPA, the respondent will prepare a final RI
report which satisfactorily addresses EPA's comments.
TASK 4 - TREATABILITY STUDIES (Rl/FS Manual, Chapter 5)
Treatability testing will be performed by the respondent to
assist in the detailed analysis of alternatives. In addition, if
applicable, testing results and operating conditions will be used
in the detailed design of the selected remedial technology. The
following activities will be performed by the respondent.
a. Determination of Candidate Technologies and of the Need for
Testing (5.2; 5.4)
The respondent will identify in a technical memorandum,
subject to EPA review and approval, candidate technologies for a
treatability studies program during project planning (Task 1).
The listing of candidate technologies will cover the range of
technologies required for alternatives analysis (Task 6 a.) The
specific data requirements for the testing program will be
determined and refined during site characterization and the
development and screening of remedial alternatives (Tasks 2 and
6, respectively).
Conduct literature survey and determine the need for
treatability testing (5.2)
The respondent will conduct a literature survey to gather
information on performance, relative costs, applicability,
-------
13 Annotated SOW (9835.8A)
removal efficiencies, operation and maintenance (O&M)
requirements, and implementability of candidate
technologies. If practical candidate technologies have not
been sufficiently demonstrated, or cannot be adequately
evaluated for this site on the basis of available
information, treatability testing will be conducted. Where
it is determined by EPA that treatability testing is
required, and unless the respondent can demonstrate to EPA's
satisfaction that they are not needed, the respondent will
submit a statement of work to EPA outlining the steps and
data necessary to evaluate and initiate the treatability
testing program.
Evaluate treatability studies (5.4)
Once a decision has been made to perform treatability
studies, the respondent and EPA will decide on the type of
treatability testing to use (e.g., bench versus pilot).
Because of the time required to design, fabricate, and
install pilot scale equipment as well as perform testing for
various operating conditions, the decision to perform pilot
testing should be made as early in the process as possible
to minimize potential delays of the FS. To assure that a
treatability testing program is completed on time, and with
accurate results, the respondent will either submit a
separate treatability testing work plan or an amendment to
the original site work plan for EPA review and approval.
b. Treatability Testing and Deliverables (5.5; 5.6; 5.8)
The deliverables that are required, in addition to the
memorandum identifying candidate technologies, where treatability
testing is conducted include a work plan, a sampling and analysis
plan, and a final treatability evaluation report. EPA may also
require a treatability study health and safety plan, where
appropriate.
Treatabilitv testing work plan (5.5)
The respondent will prepare a treatability testing work plan
or amendment to the original site work plan for EPA review
and approval describing the site background, remedial
technology(ies) to be tested, test objectives, experimental
procedures, treatability conditions to be tested,
measurements of performance, analytical methods, data
management and analysis, health and safety, and residual
waste management. The DQOs for treatability testing should
be documented as well. If pilot scale treatability testing
is to be performed, the pilot-scale work plan will describe
pilot plant installation and start-up, pilot plant operation
and maintenance procedures, operating conditions to be
tested, a sampling plan to determine pilot plant
-------
14 Annotated SOW (9835.8A)
performance, and a detailed health and safety plan. If
testing is to be performed off-site, permitting requirements
will be addressed.
Treatabilitv study SAP (5.5)
If the original QAPP or FSP is not adequate for defining the
activities to be performed during the treatability tests, a
separate treatability study SAP or amendment to the original
site SAP will be prepared by the respondent for EPA review
and approval. Task 1, Item c. of this statement of work
provides additional information on the requirements of the
SAP.
Treatability study health and safety plan (5.5)
If the original health and safety plan is not adequate for
defining the activities to be performed during the treatment
tests, a separate or amended health and safety plan will be
developed by the respondent. Task 1, Item c. of this
statement of work provides additional information on the
requirements of the health and safety plan. EPA does not
"approve" the treatability study health and safety plan.
Treatability study evaluation report (5.6)
Following completion of treatability testing, the respondent
will analyze and interpret the testing results in a
technical report to EPA. Depending on the sequence of
activities, this report may be a part of the RI/FS report or
a separate deliverable. The report will evaluate each
technology's effectiveness, implementability, cost and
actual results as compared with predicted results. The
report will also evaluate full scale application of the
technology, including a sensitivity analysis identifying the
key parameters affecting full-scale operation.
TASK 5 - DEVELOPMENT AND SCREENING OF Remedial Alternatives
(Rl/FS Manual, Chapter 4)
The development and screening of remedial alternatives is
performed to develop an appropriate range of waste management
options that will be evaluated. This range of alternatives
should include as appropriate, options in which treatment is used
to reduce the toxicity, mobility, or volume of wastes, but
varying in the types of treatment, the amount treated, and the
manner in which long-term residuals or untreated wastes are
managed; options involving containment with little or no
treatment; options involving both treatment and containment; and
a no-action alternative. The following activities will be
performed by the respondent as a function of the development and
screening of remedial alternatives.
-------
15 Annotated SOW (9835.8A)
a. Development and Screening of Remedial Alternatives (4.2)
The respondent will begin to develop and evaluate a range of
appropriate waste management options that at a minimum ensure
protection of human health and the environment, concurrent with
the RI site characterization task.
Refine and document remedial action objectives (4.2.1)
Based on EPA's baseline risk assessment/ the respondent will
review and if necessary modify the site-specific remedial
action objectives, specifically the PRGs, that were
established by EPA prior to or during negotiations between
EPA and the respondent. The revised PRGs will be documented
in a technical memorandum that will be reviewed and approved
by EPA. These modified PRGs will specify the contaminants
and media of interest, exposure pathways and receptors, and
an acceptable contaminant level or range of levels (at
particular locations for each exposure route).
Develop general response actions (4.2.2)
The respondent will develop general response actions for
each medium of interest defining containment, treatment,
excavation, pumping, or other actions, singly or in
combination, to satisfy the remedial action objectives.
Identify areas or volumes of media (4.2.3)
The respondent will identify areas or volumes of media to
which general response actions may apply, taking into
account requirements for protectiveness as identified in the
remedial action objectives. The chemical and physical
characterization of the site will also be taken into
account.
Identify, screen, and document remedial technologies (4.2.4;
4.2.5)
The respondent will identify and evaluate technologies
applicable to each general response action to eliminate
those that cannot be implemented at the site. General
response actions will be refined to specify remedial
technology types. Technology process options for each of
the technology types will be identified either concurrent
with the identification of technology types, or following
the screening of the considered technology types. Process
options will be evaluated on the basis of effectiveness,
implementability, and cost factors to select and retain one
or, if necessary, more representative processes for each
technology type. The technology types and process options
-------
16 Annotated SOW (9835.8A)
will be summarized for inclusion in a technical memorandum.
The reasons for eliminating alternatives must be specified.
Assemble and document alternatives (4.2.6)
The respondent will assemble selected representative
technologies into alternatives for each affected medium or
operable unit. Together, all of the alternatives will
represent a range of treatment and containment combinations
that will address either the site or the operable unit as a
whole. A summary of the assembled alternatives and their
related action-specific ARARs will be prepared by the
respondent for inclusion in a technical memorandum. The
reasons for eliminating alternatives during the preliminary
screening process must be specified.
Refine alternatives
The respondent will refine the remedial alternatives to
identify contaminant volume addressed by the proposed
process and sizing of critical unit operations as necessary.
Sufficient information will be collected for an adequate
comparison of alternatives. FRGs for each chemical in each
medium will also be modified as necessary to incorporate any
new risk assessment information presented in EPA's baseline
risk assessment report. Additionally, action-specific ARARs
will be updated as the remedial alternatives are refined.
Conduct and document screening evaluation of each
alternative (4.3)
The respondent may perform a final screening process based
on short and long term aspects of effectiveness,
implementability, and relative cost. Generally, this
screening process is only necessary when there are many
feasible alternatives available for detailed analysis. If
necessary, the screening of alternatives will be conducted
to assure that only the alternatives with the most favorable
composite evaluation of all factors are retained for further
analysis. As appropriate, the screening will preserve the
range of treatment and containment alternatives that was
initially developed. The range of remaining alternatives
will include options that use treatment technologies and
permanent solutions to the maximum extent practicable. The
respondent will prepare a technical memorandum summarizing
the results and reasoning employed in screening, arraying
alternatives that remain after screening, and identifying
the action-specific ARARs for the alternatives that remain
after screening.
-------
17 Annotated SOW (9835.8A)
b. Alternatives Development and Screening Deliverables (4.5)
The respondent will prepare a technical memorandum
summarizing the work performed in and the results of each task
above, including an alternatives array summary. These will be
modified by the respondent if required by EPA's comments to
assure identification of a complete and appropriate range of
viable alternatives to be considered in the detailed analysis.
This deliverable will document the methods, rationale, and
results of the alternatives screening process.
TASK 6 - DETAILED ANALYSIS OF REMEDIAL ALTERNATIVES (RI/FS
Guidance, Chapter 6)
The detailed analysis will be conducted by the respondent to
provide EPA with the information needed to allow for the
selection of a site remedy. This analysis is the final task to
be performed by the respondent during the FS.
a. Detailed Analysis of Alternatives (6.2)
The respondent will conduct a detailed analysis of
alternatives which will consist of an analysis of each option
against a set of nine evaluation criteria and a comparative
analysis of all options using the same evaluation criteria as a
basis for comparison.
Apply nine criteria and document analysis (6.2.1 - 6.2.4)
The respondent will apply nine evaluation criteria to the
assembled remedial alternatives to ensure that the selected
remedial alternative will be protective of human health and
the environment; will be in compliance with, or include a
waiver of, ARARs; will be cost-effective; will utilize
permanent solutions and alternative treatment technologies,
or resource recovery technologies, to the maximum extent
practicable; and will address the statutory preference for
treatment as a principal element. The evaluation criteria
include: (1) overall protection of human health and the
environment; (2) compliance with ARARs; (3) long-term
effectiveness and permanence; (4) reduction of toxicity,
mobility, or volume; (5) short-term effectiveness; (6)
implementability; (7) cost; (8) state (or support agency)
acceptance; and (9) community acceptance. (Note: criteria 8
and 9 are considered after the RI/FS report has been
released to the general public.) For each alternative the
respondent should provide: (1) a description of the
alternative that outlines the waste management strategy
involved and identifies the key ARARs associated with each
alternative, and (2) a discussion of the individual
criterion assessment. If the respondent does not have
direct input on criteria (8) state (or support agency)
-------
18 Annotated SOW (9835.8A)
acceptance and (9) community acceptance, these will be
addressed by EPA.
Compare alternatives against each other and document the
comparison of alternatives (6.2.5; 6.2.6)
The respondent will perform a comparative analysis between
the remedial alternatives. That is, each alternative will
be compared against the others using the evaluation criteria
as a basis of comparison. Identification and selection of
the preferred alternative are reserved by EPA. The
respondent will prepare a technical memorandum summarizing
the results of the comparative analysis.
b. Detailed Analysis Deliverables (6.5)
In addition to the technical memorandum summarizing the
results of the comparative analysis, the respondent will submit a
draft FS report to EPA for review and approval. Once EPA's
comments have been addressed by the respondent to EPA's
satisfaction, the final FS report may be bound with the final RI
report.
Feasibility study report (6.5)
The respondent will prepare a draft FS report for EPA review and
comment. This report, as ultimately adopted or amended by EPA,
provides a basis for remedy selection by EPA and documents the
development and analysis of remedial alternatives. The
respondent will refer to the RI/FS Guidance for an outline of the
report format and the required report content. The respondent
will prepare a final FS report which satisfactorily addresses
EPA's comments.
-------
19 Annotated SOW (9835.8A)
REFERENCES FOR CITATION
The following list, although not comprehensive, comprises
many of the regulations and guidance documents that apply to the
RI/FS process:
The (revised) National Contingency Plan
"Guidance for Conducting Remedial Investigations and Feasibility
Studies Under CERCLA," U.S. EPA, Office of Emergency and Remedial
Response, October 1988, OSWER Directive No. 9355.3-01.
"Interim Guidance on Potentially Responsible Party Participation
in Remedial Investigation and Feasibility Studies," U.S. EPA,
Office of Waste Programs Enforcement, Appendix A to OSWER
Directive No. 9355.3-01.
"Guidance on Oversight of Potentially Responsible Party Remedial
Investigations and Feasibility Studies," U.S. EPA, Office of
Waste Programs Enforcement, OSWER Directive No. 9835.3
"A Compendium of Superfund Field Operations Methods," Two
Volumes, U.S. EPA,.Office of Emergency and Remedial Response,
EPA/540/P-87/001a, August 1987, OSWER Directive No. 9355.0-14.
"EPA NEIC Policies and Procedures Manual," May 1978, revised
November 1984, EPA-330/9-78-001-R.
"Data Quality Objectives for Remedial Response Activities," U.S.
EPA, Office of Emergency and Remedial Response and Office of
Waste Programs Enforcement, EPA/540/G-87/003, March 1987, OSWER
Directive No. 9335.0-7B.
"Guidelines and Specifications for Preparing Quality Assurance
Project Plans," U.S. EPA, Office of Research and Development,
Cincinnati, OH, QAMS-004/80, December 29, 1980.
"Interim Guidelines and Specifications for Preparing Quality
Assurance Project Plans," U.S. EPA, Office of Emergency and
Remedial Response, QAMS-005/80, December 1980.
"Users Guid« to the EPA Contract Laboratory Program," U.S. EPA,
Sample Management Office, August 1982.
"Interim Guidance on Compliance with Applicable or Relevant and
Appropriate Requirements," U.S. EPA, Office of Emergency and
Remedial Response, July 9, 1987, OSWER Directive No. 9234.0-05.
"CERCLA Compliance with Other Laws Manual," Two Volumes, U.S.
EPA, Office of Emergency and Remedial Response, August 1988
(draft), OSWER Directive No. 9234.1-01 and -02.
-------
20 Annotated SOW (9835.8A)
"Guidance on Remedial Actions for Contaminated Ground Water at
Superfund Sites," U.S. EPA, Office of Emergency and Remedial
Response, (draft), OSWER Directive No. 9283.1-2.
"Draft Guidance on Preparing Superfund Decision Documents," U.S.
EPA, Office of Emergency and Remedial Response, March 1988, OSWER
Directive No. 9355.3-02
"Risk Assessment Guidance for Superfund - Volume I Human Health
Evaluation Manual (Part A)," December 1989, EPA/540/1-89/002
"Risk Assessment Guidance for Superfund - Volume II
Environmental Evaluation Manual," March 1989, EPA/540/1-89/001
"Guidance for Data Useability in Risk Assessment," October, 1990,
EPA/540/G-90/008
"Performance of Risk Assessments in Remedial Investigation
/Feasibility Studies (RI/FSs) conducted by Potentially
Responsible Parties (PRPs)," August 28, 1990, OSWER Directive No.
9835.15.
"Role of the Baseline Risk Assessment in Superfund Remedy
Selection Decisions," April 22, 1991, OSWER Directive No. 9355.0-
30.
"Health and Safety Requirements of Employees Employed in Field
Activities," U.S. EPA, Office of Emergency and Remedial Response,
July 12, 1981, EPA Order No. 1440.2.
OSHA Regulations in 29 CFR 1910.120 (Federal Register 45654,
December 19, 1986).
"Interim Guidance on Administrative Records for Selection of
CERCLA Response Actions," U.S. EPA, Office of Waste Programs
Enforcement, March 1, 1989, OSWER Directive No. 9833.3A.
"Community Relations in Superfund: A Handbook," U.S. EPA, Office
of Emergency and Remedial Response, June 1988, OSWER Directive
No. 9230.0#3B.
"Community Relations During Enforcement Activities And
Development of the Administrative Record," U.S. EPA, Office of
Programs Enforcement, November 1988, OSWER Directive No.
9836.0-1A.
-------
MODEL STATEMENT OF WORK FOR A
REMEDIAL INVESTIGATION AND FEASIBILITY STUDY
CONDUCTED BY POTENTIALLY RESPONSIBLE PARTIES
INSTRUCTIONS
This model statement of work (SOW) was developed to provide
potentially responsible parties (PRPs) direction in performing
the tasks that are required to successfully complete a remedial
investigation/feasibility study (RI/FS). A SOW for a PRP-lead
RI/FS must be used in conjunction with the Office of Emergency
and Remedial Response's October 1988 Guidance for Conducting
Remedial Investigations and Feasibility Studies Under CERCLA
(hereafter referred to as the RI/FS Guidance) and with the Office
of Waste Programs Enforcement's Guidance on Oversight of
Potentially Responsible Party Remedial Investigations and
Feasibility Studies. The. organization of this model SOW is
according to the tasks that must be performed during a PRP-
conducted RI/FS. These tasks include:
Task 1 Scoping;
Task 2 Community Relations;
Task 3 Site Characteristics;
Task 4 Treatability Studies;
Task 5 Development & Screening of Remedial
Alternatives;
Task 6 Detailed Analysis of Remedial Alternatives.
This model SOW is written on the general approach that a PRP
RI/FS is commenced pursuant to an Administrative Order on Consent
(AOC) with an attached SOW, and that the PRPs perform work and
submit deliverables to EPA. Depending on site circumstances and
the relationship to PRPs, it may be necessary to modify this
management approach. Moreover, because the work required to
perform a RI/FS is dependent on a site's complexity and the
amount of available information, it may be necessary to modify
the components of this model SOW in order to tailor the tasks to
the specific conditions at a site. Similarly, the level of
detail within the model SOW will vary according to the site. The
Regions have discretion to develop a site-specific SOW that
follows this model SOW, including portions of the work to be
performed by EPA, technical provisions, deliverables and
approvals. EPA, however, will perform the baseline risk
assessment, and no baseline risk assessment deliverables will be
required of PRPs. While not preferred as a general approach, at
some sites EPA may develop itself, or in negotiations, a work
plan rather than a SOW and then enter into an AOC.
When special notice for a RI/FS is issued, at most sites a
draft SOW should be attached as an addendum to a draft AOC.
Prior to the issuance of special notice, EPA, generally with
contractor assistance, will determine both the objectives of the
RI/FS and a general approach for managing the site. Determining
-------
ii 9835.8A
the site objectives and a general site strategy will be required
regardless of whether an administrative order is signed with the
PRPs or the RI/FS is Fund-financed.
The site objectives should specify the purpose of any
activities to be conducted at the site, including any interim
actions that may be necessary, as well as the objectives of the
required remedial actions (e.g., the preliminary remediation
goals, PRGs). These objectives should specify the potential
contaminants and media of concern, the likely exposure pathways
and receptors, and an acceptable contaminant level or range of
levels for each exposure route. The site objectives are
developed and based on existing site information, contaminant-
specific ARARs, when available, and risk related factors.
The site management strategy is developed once the
objectives have been established and identifies the study
boundary areas and the optimal sequence of site activities,
including whether the site may best be remedied as separate
operable units. The general management approach should include:
identifying the types of actions that may be required to address
site problems, identifying any interim actions that are necessary
to mitigate potential threats or prevent further environmental
degradation, and determining the optimal sequence of activities
to be conducted at the site. Also included in the site
management strategy should be the decision as to whether the RI
will serve as a continuation of the PRP search. This would be
appropriate at sites such as area wide groundwater contamination
or stream contamination where all of the sources of contamination
are not yet well defined.
The deliverables described in this model SOW fall under one
of three management categories. Under the first category,
deliverables must be approved by EPA before work can either begin
or continue. This includes the work plan and the site sampling
and analysis plan. Similarly, EPA approval of the RI report,
treatability studies and FS is the general approach. Under the
second category, EPA may exercise an option, in drafting the
site-specific SOW, to either comment on or review and approve the
deliverables. Review and approval of deliverables under this
second category will be based on the particular circumstances of
the site or practices of the Regional office. This category will
include most of the deliverables that are described in this model
SOW, such as technical memoranda and reports. A middle ground is
to allow work in these areas to proceed without resubmittal and
approval so long as the changes required by EPA are fully
reflected in subsequent deliverables. This approach of
commenting strikes a balance between excessive approval and
dispute resolution of numerous interim activities by PRPs, which
cumulatively results in a lengthy RI/FS, and review at the end of
the six major components of the RI/FS, which could result in
months of unacceptable work not detected until late in the
-------
ill 9835.8A
process. It also assures focus on the major deliverables. In
addition, consistent with the RI/FS guidance, some work is
simultaneously done. Under the third category, deliverables do
not require comment from EPA. This category includes PRP
progress reports. A summary of the. major deliverables under
categories one and two, as outlined in this model SOW, is
included in the document.
Interim deliverables in addition to those required by the
RI/FS Guidance are described in this model SOW. These
deliverables are appropriate because of the different
relationships and interactions between a Fund-lead and PRP-lead
RI/FS. Review of these deliverables will help to assure EPA that
the work being performed meets the terms and conditions of the
AOC. Those deliverables other than what are required by the
RI/FS Guidance that are described within this model SOW may not
be necessary or appropriate for all sites. Similarly,
deliverables other than what are described in this model SOW may
be more appropriate for a particular site. The deliverables
determined to be appropriate for a particular site should be
approved by EPA management and must be specified in the AOC. The
timing of the RI/FS and available oversight resources should be
considered prior to determining the appropriate deliverables.
Offices within the Region other than Superfund which will concur
or comment on PRP deliverables should be consulted during the
scoping process.
The Remedial Project Manager (RPM) should assure good
communications with the PRPs.» This includes meetings to discuss
EPA's expectations before major phases of work are begun and to
review the conclusions of major components of the RI/FS. In
addition, the RPM should assure that EPA management is informed
and has input on major components of the RI/FS. While this
varies from site to site, management review usually is
appropriate at scoping, final review of the work plan, before
final comments are submitted on the RI, before EPA finalizes the
baseline risk assessment, and as the FS is finally developed.
-------
IV
9835.8A
SUMMARY OF MAJOR DELIVERABLES
(AS OUTLINED IN THIS MODEL SOW FOR PRP-CONDUCTED RI/FS)
TASK/DELIVERABLE
TASK 1 SCOPING
RI/FS Work Plan
Sampling and
Analysis Plan (SAP)
Site Health and
Safety Plan
MANAGEMENT CATEGORY
(1) Review and Approve
(1) Review and Approve
(2) Review and Comment
TASK 3 SITE CHARACTERIZATION
- Technical Memorandum
on Modeling of Site
Characteristics (where
appropriate)
Preliminary Site
Characterization
Summary
Draft Remedial
Investigation (RI)
Report
[Task 4 - Baseline Risk Assessment]
TASK 4 TREATABILITY STUDIES
Technical Memorandum
Identifying
Candidate
Technologies
Treatability Testing
Statement of Work
Treatability Testing
Work Plan (or amendment
to original)
(2) Review and Approve
(2) Review and Comment
(1) Review and Approve
(2) Review and Approve
(2) Review and Comment
(1) Review and Approve
See the Model RI/FS Administrative Order on Consent
(AOC) for additional reporting requirements, and
further instructions on submittal and dispositions of
deliverables.
-------
v 9835.8A
Treatability Study (1) Review and Approve
SAP (or amendment to
original)
Treatability Study (2) Review and Comment
Site Health and
Safety Plan (or
amendment to original)
Treatability Study (1) Review and Approve
Evaluation Report
TASK 5 DEVELOPMENT AND SCREENING OF REMEDIAL ALTERNATIVES
Technical Memorandum (2) Review and Approve
Documenting Revised
Remedial Action
Objectives
Technical Memorandum (2) Review and Approve
on Remedial
Technologies,
Alternatives and
Screening
TASK 6 DETAILED ANALYSIS OF REMEDIAL ALTERNATIVES
Technical Memorandum (2) Review and Approve
Summarizing Results of
Comparative Analysis of
Alternatives
Draft Feasibility (1) Review and Approve
Study (FS) Report
-------
MODEL STATEMENT OF WORK FOR PRP-CONDUCTED
REMEDIAL INVESTIGATIONS AND FEASIBILITY STUDIES
INTRODUCTION
The purpose of this remedial investigation/feasibility study
(RI/FS) is to investigate the nature and extent of contamination
at a site and develop and evaluate potential remedial
alternatives. The RI and FS are interactive and may be conducted
concurrently so that the data collected in the RI influences the
development of remedial alternatives in the FS, which in turn
affects the data needs and the scope of treatability studies.
The respondent will conduct this RI/FS (except for the
baseline risk assessment component) and will produce a draft RI
and FS report that are in accordance with this statement of work,
the Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA (U.S. EPA, Office of Emergency
and Remedial Response, October 1988), and any other guidances
that EPA uses in conducting a RI/FS (a list of the primary
guidances is attached), as well as any additional requirements in
the administrative order*. The RI/FS Guidance describes the
report format and the required report content. The respondent
will furnish all necessary personnel, materials, and services
needed, or incidental to, performing the RI/FS, except as
otherwise specified in the administrative order.
At the completion of the RI/FS, EPA will be responsible for
the selection of a site remedy and will document this selection
in a Record of Decision (ROD). The remedial action alternative
selected by EPA will meet the cleanup standards specified in
CERCLA Section 121. That is, the selected remedial action will
be protective of human health and the environment, will be in
compliance with, or include a waiver of, applicable or relevant
and appropriate requirements of other laws, will be cost-
effective, will utilize permanent solutions and alternative
treatment technologies or resource recovery technologies, to the
maximum extent practicable, and will address the statutory
preference for treatment as a principal element. The final RI/FS
report, as adopted by EPA, and EPA's baseline risk assessment
will, with the administrative record, form the basis for the
selection of the site's remedy and will provide the information
necessary to support the development of the ROD.
As specified in CERCLA Section 104(a)(1), as amended by
SARA, EPA will provide oversight of the respondent's activities
throughout the RI/FS. The respondent will support EPA's
initiation and conduct of activities related to the
implementation of oversight activities.
-------
2 9835.8A
TASK 1 - SCOPING (RI/FS Guidance, Chapter 2)
Scoping is the initial planning process of the RI/FS and is
initiated by EPA prior to issuing special notice. During this
time, the site-specific objectives of the RI/FS, including the
preliminary remediation goals (PRGs), are determined by EPA.
Scoping is therefore initiated prior to negotiations between the
PRPs and EPA, and is continued, repeated as necessary, and
refined throughout the RI/FS process. In addition to developing
the site specific objectives of the RI/FS, EPA will determine a
general management approach for the site. Consistent with the
general management approach, the specific project scope will be
planned by the respondent and EPA. The respondent will document
the specific project scope in a work plan. Because the work
required to perform a RI/FS is not fully known at the onset, and
is phased in accordance with a site's complexity and the amount
of available information, it may be necessary to modify the work
plan during the RI/FS to satisfy the objectives of the study.
The site objectives for the site
located in the State of have been determined
preliminarily, based on available information, to be the
following:
The strategy for the general management of the_
site will include the following:
When scoping the specific aspects of a project, the
respondent must meet with EPA to discuss all project planning
decisions and special concerns associated with the site. The
following activities shall be performed by the respondent as a
function of the project planning process.
-------
3 9835.8A
a. Site Background (2.2)
The respondent will gather and analyze the existing site
background information and will conduct a site visit to assist in
planning the scope of the RI/FS.
Collect and analyze existing data and document the need for
additional data (2.2.2; 2.2.6; 2.2.7)
Before planning RI/FS activities, all existing site data
will be thoroughly compiled and reviewed by the respondent.
Specifically, this will include presently available data
relating to the varieties and quantities of hazardous
substances at the site, and past disposal practices. This
will also include results from any previous sampling events
that may have been conducted. The respondent will refer to
Table 2-1 of the RI/FS Guidance for a comprehensive list of
data collection information sources. This information will
be utilized in determining additional data needed to
characterize the site, better define potential applicable or
relevant and appropriate requirements (ARARs), and develop a
range of preliminarily identified remedial alternatives.
Data Quality Objectives (DQOs) will be established subject
to EPA approval which specify the usefulness of existing
data. Decisions on the necessary data and DQOs will be made
by EPA.
Conduct Site Visit
The respondent will conduct a site visit during the project
scoping phase to assist in developing a conceptual
understanding of sources and areas of contamination as well
as potential exposure pathways and receptors at the site.
During the site visit the respondent should observe the
site's physiography, hydrology, geology, and demographics,
as well as natural resource, ecological and cultural
features. This information will be utilized to better scope
the project and to determine the extent of additional data
necessary to characterize the site, better define potential
ARARs, and narrow the range of preliminarily identified
remedial alternatives.
b. Project Planning (2.2)
Once the respondent has collected and analyzed existing data
and conducted a site visit, the specific project scope will be
planned. Project planning activities include those tasks
described below as well as identifying data needs, developing a
work plan, designing a data collection program, and identifying
health and safety protocols. The respondent will meet with EPA
regarding the following activities and before the drafting of the
-------
4 9835.8A
scoping deliverables below. These tasks are described in Section
c. of this task since they result in the development of specific
required deliverables.
Refine and document preliminary remedial action objectives
and alternatives (2.2.3)
Once existing site information has been analyzed and an
understanding of the potential site risks has been
determined by EPA, the respondent will review and, if
necessary, refine the remedial action objectives that have
been identified by EPA for each actually or potentially
contaminated medium. The revised remedial action objectives
will be documented in a technical memorandum and subject to
EPA approval. The respondent will then identify a
preliminary range of broadly defined potential remedial
action alternatives and associated technologies. The range
of potential alternatives should encompass where
appropriate, alternatives in which treatment significantly
reduces the toxicity, mobility, or volume of the waste;
alternatives that involve containment with little or no
treatment; and a no-action alternative.
Document the need for treatability studies (2.2.4)
If remedial actions involving treatment have been identified
by the respondent or EPA, treatability studies will be
required except where the respondent can demonstrate to
EPA's satisfaction that they are not needed. Where
treatability studies are needed, initial treatability
testing activities (such as research and study design) will
be planned to occur concurrently with site characterization
activities (see Tasks 3 and 5).
Begin preliminary identification of Potential ARARs (2.2.5)
The respondent will conduct a preliminary identification of
potential state and federal ARARs (chemical-specific,
location-specific and action-specific) to assist in the
refinement of remedial action objectives, and the initial
identification of remedial alternatives and ARARs associated
with particular actions. ARAR identification will continue
as site conditions, contaminants, and remedial action
alternatives are better defined.
c. Scoping Deliverables (2.3)
At the conclusion of the project planning phase, the
respondent will submit a RI/FS work plan, a sampling and analysis
plan, and a site health and safety plan. The RI/FS work plan and
sampling and analysis plan must be reviewed and approved by EPA
prior to the initiation of field activities.
-------
9835.8A
RI/FS Work Plan (2.3.1)
A work plan documenting the decisions and evaluations
completed during the scoping process will be submitted to
EPA for review and approval. The work plan should be
developed in conjunction with the sampling and analysis plan
and the site health and safety plan, although each plan may
be delivered under separate cover. The work plan will
include a comprehensive description of the work to be
performed, including the methodologies to be utilized, as
well as a corresponding schedule for completion. In
addition, the work plan must include the rationale for
performing the required activities. Specifically, the work
plan will present a statement of the problem(s) and
potential problem(s) posed by the site and the objectives of
the RI/FS. Furthermore, the plan will include a site
background summary setting forth the site description
including the geographic location of the site, and to the
extent possible, a description of the site's physiography,
hydrology, geology, demographics, ecological, cultural and
natural resource features; a synopsis of the site history
and a description of previous responses that have been
conducted at the site by local, state, federal, or private
parties; a summary of the existing data in terms of physical
and chemical characteristics of the contaminants identified,
and their distribution among the environmental media at the
site. The plan will recognize EPA's preparation of the
baseline risk assessment. In addition, the plan will
include a description of the site management strategy
developed by EPA during scoping; a preliminary
identification of remedial alternatives and data needs for
evaluation of remedial alternatives. The plan will reflect
coordination with treatability study requirements (see Tasks
1 and 4). It will include a process for and manner of
identifying Federal and state ARARs (chemical-specific,
location-specific and action-specific).
Finally, the major part of the work plan is a detailed
description of the tasks to be performed, information needed
for each task and for EPA's baseline risk assessment,
information to be produced during and at the conclusion of
each task, and a description of the work products that will
be submitted to EPA. This includes the deliverables set
forth in the remainder of this statement of work; a schedule
for each of the required activities which is consistent with
the RI/FS guidance; and a project management plan, including
a data management plan (e.g., requirements for project
management systems and software, minimum data requirements,
data format and backup data management), monthly reports to
EPA and meetings and presentations to EPA at the conclusion
of each major phase of the RI/FS. The respondent will refer
-------
6 9835.8A
to Appendix B of the RI/FS Guidance for a comprehensive
description of the contents of the required work plan.
Because of the unknown nature of the site and iterative
nature of the RI/FS, additional data requirements and
analyses may be identified throughout the process. The
respondent will submit a technical memorandum documenting
the need for additional data, and identifying the DQOs
whenever such requirements are identified. In any event,
the respondent is responsible for fulfilling additional data
and analysis needs identified by EPA consistent with the
general scope and objectives of this RI/FS.
Sampling and Analysis Plan (2.3.2)
The respondent will prepare a sampling and analysis plan
(SAP) to ensure that sample collection and analytical
activities are conducted in accordance with technically
acceptable protocols and that the data meet DQOs. The SAP
provides a mechanism for planning field activities and
consists of a field sampling plan (FSP) and a quality
assurance project plan (QAPP).
The FSP will define in detail the sampling and data-
gathering methods that will be used on the project. It will
include sampling objectives, sample location and frequency,
sampling equipment and procedures, and sample handling and
analysis. The QAPP will describe the project objectives and
organization, functional activities, and quality assurance
and quality control (QA/QC) protocols that will be used to
achieve the desired DQOs. The DQOs will at a minimum
reflect use of analytic methods to identifying contamination
and remediating contamination consistent with the levels for
remedial action objectives identified in the proposed
National Contingency Plan, pages 51425-26 and 51433
(December 21, 1988). In addition, the QAPP will address
sampling procedures, sample custody, analytical procedures,
and data reduction, validation, reporting and personnel
qualifications. Field personnel should be available for EPA
QA/QC training and orientation where applicable. The
respondent will demonstrate, in advance to EPA's
satisfaction, that each laboratory it may use is qualified
to conduct the proposed work. This includes use of methods
and analytical protocols for the chemicals of concern in the
media of interest within detection and quantification limits
consistent with both QA/QC procedures and DQOs approved in
the QAPP for the site by EPA. The laboratory must have and
follow an approved QA program. If a laboratory not in the
Contract Laboratory Program (CLP) is selected, methods
consistent with CLP methods that would be used at this site
for the purposes proposed and QA/QC procedures approved by
EPA will be used. If the laboratory is not in the CLP
program, a laboratory QA program must be submitted for EPA
-------
7 9835.8A
review and approval. EPA may require that the respondent
submit detailed information to demonstrate that the
laboratory is qualified to conduct the work, including
information on personnel qualifications, equipment and
material specifications. The respondent will provide
assurances that EPA has access to laboratory personnel,
equipment and records for sample collection, transportation
and analysis.
Site Health and Safety Plan (2.3.3)
A health and safety plan will- be prepared in conformance
with the respondent's health and safety program, and in
compliance with OSHA regulations and protocols. The health
and safety plan will include the 11 elements described in
the RI/FS Guidance, such as a health and safety risk
analysis, a description of monitoring and personal
protective equipment, medical monitoring, and site control.
It should be noted that EPA does not "approve" the
respondent's health and safety plan, but rather EPA reviews
it to ensure that all necessary elements are included, and
that the plan provides for the protection of human health
and the environment.
TASK 2 - COMMUNITY RELATIONS
The development and implementation of community relations
activities are the responsibility of EPA. The critical community
relations planning steps performed by EPA include conducting
community interviews and developing a community relations plan.
Although implementation of the community relations plan is the
responsibility of EPA, the respondent may assist by providing
information regarding the site's history, participating in public
meetings, or by preparing fact sheets for distribution to the
general public. EPA will prepare two or more baseline risk
assessment memoranda which will summarize the toxicity assessment
and exposure assessment components of the baseline risk
assessment. EPA will make these memoranda available to all
interested parties for comment and place them in the
Administrative Record. (EPA is not required, however, to
formally respond to significant comments except during the formal
public comment period on the proposed plan.) In addition, the
respondent may establish a community information repository, at
or near the site, to house one copy of the administrative record.
The extent of PRP involvement in community relations activities
is left to the discretion of EPA. The respondents' community
relations responsibilities, if any, are specified in the
community relations plan. All PRP-conducted community relations
activities will be subject to oversight by EPA.
-------
8 9835.8A
TASK 3 - SITE CHARACTERIZATION (RI/FS Guidance, Chapter 3)
As part of the RI, the respondent will perform the
activities described in this task, including the preparation of a
site characterization summary and a RI report. The overall
objective of site characterization is to describe areas of a site
that may pose a threat to human health or the environment. This
is accomplished by first determining a site's physiography,
geology, and hydrology. Surface and subsurface pathways of
migration will be defined. The respondent will identify the
sources of contamination and define the nature, extent, and
volume of the sources of contamination, including their physical
and chemical constituents as well as their concentrations at
incremental locations to background in the affected media. The
respondent will also investigate the extent of migration of this
contamination as well as its volume and any changes in its
physical or chemical characteristics, to provide for a
comprehensive understanding of the nature and extent of
contamination at the site. Using this information, contaminant
fate and transport is then determined and projected.
During this phase of the RI/FS, the work plan, SAP, and
health and safety plan are implemented. Field data are collected
and analyzed to provide the information required to accomplish
the objectives of the study. The respondent will notify EPA at
least two weeks in advance of the field work regarding the
planned dates for field activities, including ecological field
surveys, field lay out of the sampling grid, excavation,
installation of wells, initiating sampling, installation and
calibration of equipment, pump tests, and initiation of analysis
and other field investigation activities. The respondent will
demonstrate that the laboratory and type of laboratory analyses
that will be utilized during site characterization meets the
specific QA/QC requirements and the DQOs of the site
investigation as specified in the SAP. In view of the unknown
site conditions, activities are often iterative, and to satisfy
the objectives of the RI/FS it may be necessary for the
respondent to supplement the work specified in the initial work
plan. In addition to the deliverables below, the respondent will
provide a monthly progress report and participate in meetings at
major points in the RI/FS.
a. Field Investigation (3.2)
The field investigation includes the gathering of data to
define site physical and biological characteristics, sources of
contamination, and the nature and extent of contamination at the
site. These activities will be performed by the respondent in
accordance with the work plan and SAP. At a minimum, this shall
address the following:
-------
9 9835.8A
Implement and document field support activities (3.2.1)
The respondent will initiate field support activities
following approval of the work plan and SAP. Field support
activities may include obtaining access to the site,
scheduling, and procuring equipment, office space,
laboratory services, and/or contractors. The respondent
will notify EPA at least two weeks prior to initiating field
support activities so that EPA may adequately schedule
oversight tasks. The respondent will also notify EPA in
writing upon completion of field support activities.
Investigate and define site physical and biological
characteristics (3.2.2)
The respondent will collect data on the physical and
biological characteristics of the site and its surrounding
areas including the physiography, geology, and hydrology,
and specific physical characteristics identified in the work
plan. This information will be ascertained through a
combination of physical measurements, observations, and
sampling efforts and will be utilized to define potential
transport pathways and human and ecological receptor
populations. In defining the site's physical
characteristics the respondent will also obtain sufficient
engineering data (such as pumping characteristics) for the
projection of contaminant fate and transport, and
development and screening of remedial action alternatives,
including information to assess treatment technologies.
Define sources of contamination (3.2.3)
The respondent will locate each source of contamination.
For each location, the areal extent and depth of
contamination will be determined by sampling at incremental
depths on a sampling grid. The physical characteristics and
chemical constituents and their concentrations will be
determined for all known and discovered sources of
contamination. The respondent shall conduct sufficient
sampling to define the boundaries of the contaminant sources
to the level established in the QA/QC plan and DQOs.
Defining the source of contamination will include analyzing
the potential for contaminant release (e.g., long term
leaching from soil), contaminant mobility and persistence,
and characteristics important for evaluating remedial
actions, including information to assess treatment
technologies.
-------
10 9835.8A
Describe the nature and extent of contamination (3.2.4)
The respondent will gather information to describe the
nature and extent of contamination as a final step during
the field investigation. To describe the nature and extent
of contamination, the respondent will utilize the
information on site physical and biological characteristics
and sources of contamination to give a preliminary estimate
of the contaminants that may have migrated. The respondent
will then implement an iterative monitoring program and any
study program identified in the work plan or SAP such that
by using analytical techniques sufficient to detect and
quantify the concentration of contaminants, the migration of
contaminants through the various media at the site can be
determined. In addition, the respondent will gather data for
calculations of contaminant fate and transport. This
process is continued until the area and depth of
contamination are known to the level of contamination
established in the QA/QC plan and DQOs. EPA will use the
information on the nature and extent of contamination to
determine the level of risk presented by the site.
Respondents will use this information to help to determine
aspects of the appropriate remedial action alternatives to
be evaluated.
b. Data Analyses (3.4)
Evaluate site characteristics (3.4.1)
The respondent will analyze and evaluate the data to
describe: (1) site physical and biological characteristics,
(2) contaminant source characteristics, (3) nature and
extent of contamination and (4) contaminant fate and
transport. Results of the site physical characteristics,
source characteristics, and extent of contamination analyses
are utilized in the analysis of contaminant fate and
transport. The evaluation will include the actual and
potential magnitude of releases from the sources, and
horizontal and vertical spread of contamination as well as
mobility and persistence of contaminants. Where modeling is
appropriate, such models shall be identified to EPA in a
technical memorandum prior to their use. All data and
programming, including any proprietary programs, shall be
made available to EPA together with a sensitivity analysis.
The RI data shall be presented in a format (i.e., computer
disc or equivalent) to facilitate EPA's preparation of the
baseline risk assessment. The Respondent shall agree to
discuss and then collect any data gaps identified by the EPA
that is needed to complete the baseline risk assessment.
(See "Guidance for Data Useability in Risk Assessment -
OSWER Directive # 9285.7-05 - October 1990.) Also, this
evaluation shall provide any information relevant to site
-------
11 9835.8A
characteristics necessary for evaluation of the need for
remedial action in the baseline risk assessment and for the
development and evaluation of remedial alternatives.
Analyses of data collected for site characterization will
meet the DQOs developed in the QA/QC plan stated in the SAP
(or revised during the RI).
c. Data Management Procedures (3.5)
The respondent will consistently document the quality and
validity of field and laboratory data compiled during the RI.
Document field activities (3.5.1)
Information gathered during site characterization will be
consistently documented and adequately recorded by the
respondent in well maintained field logs and laboratory
reports. The method(s) of documentation must be specified
in the work plan and/or the SAP. Field logs must be
utilized to document observations, measurements, and
significant events that have occurred during field
activities. Laboratory reports must document sample
custody, analytical responsibility, analytical results,
adherence to prescribed protocols, nonconformity events,
corrective measures, and/or data deficiencies.
Maintain sample management and tracking (3.5.2; 3.5.3)
The respondent will maintain field reports, sample shipment
records, analytical results, and QA/QC reports to ensure
that only validated analytical data are reported and
utilized in the development and evaluation of remedial
alternatives. Analytical results developed under the work
plan will not be included in any site characterization
reports unless accompanied by or cross-referenced to a
corresponding QA/QC report. In addition, the respondent
will establish a data security system to safeguard chain-of
custody forms and other project records to prevent loss,
damage, or alteration of project documentation.
d. Site Characterization Deliverables (3.7)
The respondent will prepare the preliminary site
characterization summary and the remedial investigation report.
Preliminary Site Characterization Summary (3.7.2)
After completing field sampling and analysis, the respondent
will prepare a concise site characterization summary. This
summary will review the investigative activities that have
taken place, and describe and display site data documenting
the location and characteristics of surface and subsurface
-------
12 9835.8A
features and contamination at the site including the
affected medium, location, types, physical state,
concentration of contaminants and quantity. In addition,
the location, dimensions, physical condition and varying
concentrations of each contaminant throughout each source
and the extent of contaminant migration through each of the
affected media will be documented. The site
characterization summary will provide EPA with a preliminary
reference for developing the risk assessment, and evaluating
the development and screening of remedial alternatives and
the refinement and identification of ARARs.
Remedial Investigation (RI) Report (3.7.3)
The respondent will prepare and submit a draft RI report to
EPA for review and approval. This report shall summarize
results of field activities to characterize the site,
sources of contamination, nature and extent of contamination
and the fate and transport of contaminants. The respondent
will refer to the RI/FS Guidance for an outline of the
report format and contents. Following comment by EPA, the
respondent will prepare a final RI report which
satisfactorily addresses EPA's comments.
TASK 4 - TREATABILITY STUDIES (Rl/FS Manual, Chapter 5)
Treatability testing will be performed by the respondent to
assist in the detailed analysis of alternatives. In addition, if
applicable, testing results and operating conditions will be used
in the detailed design of the selected remedial technology. The
following activities will be performed by the respondent.
a. Determination of Candidate Technologies and of the Need for
Testing (5.2; 5.4)
The respondent will identify in a technical memorandum,
subject to EPA review and approval, candidate technologies for a
treatability studies program during project planning (Task 1).
The listing of candidate technologies will cover thev range of
technologies required for alternatives analysis (Task 6 a.) The
specific data requirements for the testing program will be
determined and refined during site characterization and the
development and screening of remedial alternatives (Tasks 2 and
6, respectively).
Conduct literature survey and determine the need for
treatability testing (5.2)
The respondent will conduct a literature survey to gather
information on performance, relative costs, applicability,
removal efficiencies, operation and maintenance (O&M)
requirements, and implementability of candidate
-------
13 9835.8A
technologies. If practical candidate technologies have not
been sufficiently demonstrated, or cannot be adequately
evaluated for this site on the basis of available
information, treatability testing will be conducted. Where
it is determined by EPA that treatability testing is
required, and unless the respondent can demonstrate to EPA's
satisfaction that they are not needed, the respondent will
submit a statement of work to EPA outlining the steps and
data necessary to evaluate and initiate the treatability
testing program.
Evaluate treatability studies (5.4)
Once a decision has been made to perform treatability
studies, the respondent and EPA will decide on the type of
treatability testing to use (e.g., bench versus pilot).
Because of the time required to design, fabricate, and
install pilot scale equipment as well as perform testing for
various operating conditions, the decision to perform pilot
testing should be made as early in the process as possible
to minimize potential delays of the FS. To assure that a
treatability testing program is completed on time, and with
accurate results, the respondent will either submit a
separate treatability testing work plan or an amendment to
the original site work plan for EPA review and approval.
b. Treatability Testing and Deliverables (5.5; 5.6; 5.8)
The deliverables that are required, in addition to the
memorandum identifying candidate technologies, where treatability
testing is conducted include a work plan, a sampling and analysis
plan, and a final treatability evaluation report. EPA may also
require a treatability study health and safety plan, where
appropriate.
Treatability testing work plan (5.5)
The respondent will prepare a treatability testing work plan
or amendment to the original site work plan for EPA review
and approval describing the site background, remedial
technology(ies) to be tested, test objectives, experimental
procedures, treatability conditions to be tested,
measurements of performance, analytical methods, data
management and analysis, health and safety, and residual
waste management. The DQOs for treatability testing should
be documented as well. If pilot scale treatability testing
is to be performed, the pilot-scale work plan will describe
pilot plant installation and start-up, pilot plant operation
and maintenance procedures, operating conditions to be
tested, a sampling plan to determine pilot plant
performance, and a detailed health and safety plan. If
-------
14 9835.8A
testing is to be performed off-site, permitting requirements
will be addressed.
Treatability study SAP (5.5)
If the original QAPP or FSP is not adequate for defining the
activities to be performed during the treatability tests, a
separate treatability study SAP or amendment to the original
site SAP will be prepared by the respondent for EPA review
and approval. Task 1, Item c. of this statement of work
provides additional information on the requirements of the
SAP.
Treatability study health and safety plan (5.5)
If the original health and safety plan is not adequate for
defining the activities to be performed during the treatment
tests, a separate or amended health and safety plan will be
developed by the respondent. Task 1, Item c. of this
statement of work provides additional information on the
requirements of the health and safety plan. EPA does not
"approve" the treatability study health and safety plan.
Treatability study evaluation report (5.6)
Following completion of treatability testing, the respondent
will analyze and interpret the testing results in a
technical report to EPA. Depending on the sequence of
activities, this report may be a part of the RI/FS report or
a separate deliverable. The report will evaluate each
technology's effectiveness, implementability, cost and
actual results as compared with predicted results. The
report will also evaluate full scale application of the
technology, including a sensitivity analysis identifying the
key parameters affecting full-scale operation.
TASK 5 - DEVELOPMENT AND SCREENING OF Remedial Alternatives
(Rl/FS Manual, Chapter 4)
The development and screening of remedial alternatives is
performed to develop an appropriate range of waste management
options that will be evaluated. This range of alternatives
should include as appropriate, options in which treatment is used
to reduce the toxicity, mobility, or volume of wastes, but
varying in the types of treatment, the amount treated, and the
manner in which long-term residuals or untreated wastes are
managed; options involving containment with little or no
treatment; options involving both treatment and containment; and
a no-action alternative. The following activities will be
performed by the respondent as a function of the development and
screening of remedial alternatives.
-------
15 9835.8A
a. Development and Screening of Remedial Alternatives (4.2)
The respondent will begin to develop and evaluate a range of
appropriate waste management options that at a minimum ensure
protection of human health and the environment, concurrent with
the RI site characterization task.
Refine and document remedial action objectives (4.2.1)
Based on EPA's baseline risk assessment, the respondent will
review and if necessary modify the site-specific remedial
action objectives, specifically the PRGs, that were
established by EPA prior to or during negotiations between
EPA and the respondent. The revised PRGs will be documented
in a technical memorandum that will be reviewed and approved
by EPA. These modified PRGs will specify the contaminants
and media of interest, exposure pathways and receptors, and
an acceptable contaminant level or range of levels (at
particular locations for each exposure route).
Develop general response actions (4.2.2)
The respondent will develop general response actions for
each medium of interest defining containment, treatment,
excavation, pumping, or other actions, singly or in
combination, to satisfy the remedial action objectives.
Identify areas or volumes of media (4.2.3)
The respondent will identify areas or volumes of media to
which general response actions may apply, taking into
account reguirements for protectiveness as identified in the
remedial action objectives. The chemical and physical
characterization of the site will also be taken into
account.
Identify, screen, and document remedial technologies (4.2.4;
4.2.5)
The respondent will identify and evaluate technologies
applicable to each general response action to eliminate
those that cannot be implemented at the site. General
response actions will be refined to specify remedial
technology types. Technology process options for each of
the technology types will be identified either concurrent
with the identification of technology types, or following
the screening of the considered technology types. Process
options will be evaluated on the basis of effectiveness,
implementability, and cost factors to select and retain one
or, if necessary, more representative processes for each
technology type. The technology types and process options
-------
16 9835.8A
will be summarized for inclusion in a technical memorandum.
The reasons for eliminating alternatives must be specified.
Assemble and document alternatives (4.2.6)
The respondent will assemble selected representative
technologies into alternatives for each affected medium or
operable unit. Together, all of the alternatives will
represent a range of treatment and containment combinations
that will address either the site or the operable unit as a
whole. A summary of the assembled alternatives and their
related action-specific ARARs will be prepared by the
respondent for inclusion in a technical memorandum. The
reasons for eliminating alternatives during the preliminary
screening process must be specified.
Refine alternatives
The respondent will refine the remedial alternatives to
identify contaminant volume addressed by the proposed
process and sizing of critical unit operations as necessary.
Sufficient information will be collected for an adequate
comparison of alternatives.' PRGs for each chemical in each
medium will also be modified as necessary to incorporate any
new risk assessment information presented in EPA's baseline
risk assessment report. Additionally, action-specific ARARs
will be updated as the remedial alternatives are refined.
Conduct and document screening evaluation of each
alternative (4.3)
The respondent may perform a final screening process based
on short and long term aspects of effectiveness,
implementability, and relative cost. Generally, this
screening process is only necessary when there are many
feasible alternatives available for detailed analysis. If
necessary, the screening of alternatives will be conducted
to assure that only the alternatives with the most favorable
composite evaluation of all factors are retained for further
analysis. As appropriate, the screening will preserve the
range of treatment and containment alternatives that was
initially developed. The range of remaining alternatives
will include options that use treatment technologies and
permanent solutions to the maximum extent practicable. The
respondent will prepare a technical memorandum summarizing
the results and reasoning employed in screening, arraying
alternatives that remain after screening, and identifying
the action-specific ARARs for the alternatives that remain
after screening.
-------
17 9835.8A
b. Alternatives Development and Screening Deliverables (4.5)
The respondent will prepare a technical memorandum
summarizing the work performed in and the results of each task
above, including an alternatives array summary. These will be
modified by the respondent if required by EPA's comments to
assure identification of a complete and appropriate range of
viable alternatives to be considered in the detailed analysis.
This deliverable will document the methods, rationale, and
results of the alternatives screening process.
TASK 6 - DETAILED ANALYSIS OF REMEDIAL ALTERNATIVES (RI/FS
Guidance, Chapter 6)
The detailed analysis will be conducted by the respondent to
provide EPA with the information needed to allow for the
selection of a site remedy. This analysis is the final task to
be performed by the respondent during the FS.
a. Detailed Analysis of Alternatives (6.2)
The respondent will conduct a detailed analysis of
alternatives which will consist of an analysis of each option
against a set of nine evaluation criteria and a comparative
analysis of all options using the same evaluation criteria as a
basis for comparison.
Apply nine criteria and document analysis (6.2.1 - 6.2.4)
The respondent will apply nine evaluation criteria to the
assembled remedial alternatives to ensure that the selected
remedial alternative will be protective of human health and
the environment; will be in compliance with, or include a
waiver of, ARARs; will be cost-effective; will utilize
permanent solutions and alternative treatment technologies,
or resource recovery technologies, to the maximum extent
practicable; and will address the statutory preference for
treatment as a principal element. The evaluation criteria
include: (1) overall protection of human health and the
environment; (2) compliance with ARARs; (3) long-term
effectiveness and permanence; (4) reduction of toxicity,
mobility, or volume; (5) short-term effectiveness; (6)
implementability; (7) cost; (8) state (or support agency)
acceptance; and (9) community acceptance. (Note: criteria 8
and 9 are considered after the RI/FS report has been
released to the general public.) For each alternative the
respondent should provide: (1) a description of the
alternative that outlines the waste management strategy
involved and identifies the key ARARs associated with each
alternative, and (2) a discussion of the individual
criterion assessment. If the respondent does not have
direct input on criteria (8) state (or support agency)
-------
18 9835.8A
acceptance and (9) community acceptance, these will be
addressed by EPA.
Compare alternatives against each other and document the
comparison of alternatives (6.2.5; 6.2.6)
The respondent will perform a comparative analysis between
the remedial alternatives. That is, each alternative will
be compared against the others using the evaluation criteria
as a basis of comparison. Identification and selection of
the preferred alternative are reserved by EPA. The
respondent will prepare a technical memorandum summarizing
the results of the comparative analysis.
b. Detailed Analysis Deliverables (6.5)
In addition to the technical memorandum summarizing the
results of the comparative analysis, the respondent will submit a
draft FS report to EPA for review and approval. Once EPA's
comments have been addressed by the respondent to EPA's
satisfaction, the final FS report may be bound with the final RI
report.
Feasibility study report (6.5)
The respondent will prepare a draft FS report for EPA review and
comment. This report, as ultimately adopted or amended by EPA,
provides a basis for remedy selection by EPA and documents the
development and analysis of remedial alternatives. The
respondent will refer to the RI/FS Guidance for an outline of the
report format and the required report content. The respondent
will prepare a final FS report which satisfactorily addresses
EPA's comments.
-------
19 9835.8A
REFERENCES FOR CITATION
The following list, although not comprehensive, comprises
many of the regulations and guidance documents that apply to the
RI/FS process:
The (revised) National Contingency Plan
"Guidance for Conducting Remedial Investigations and Feasibility
Studies Under CERCLA," U.S. EPA, Office of Emergency and Remedial
Response, October 1988, OSWER Directive No. 9355.3-01.
"Interim Guidance on Potentially Responsible Party Participation
in Remedial Investigation and Feasibility Studies," U.S. EPA,
Office of Waste Programs Enforcement, Appendix A to OSWER
Directive No. 9355.3-01.
"Guidance on Oversight of Potentially Responsible Party Remedial
Investigations and Feasibility Studies," U.S. EPA, Office of
Waste Programs Enforcement, OSWER Directive No. 9835.3
"A Compendium of Superfund Field Operations Methods," Two
Volumes, U.S. EPA,.Office of Emergency and Remedial Response,
EPA/540/P-87/001a, August 1987, OSWER Directive No. 9355.0-14.
"EPA NEIC Policies and Procedures Manual," May 1978, revised
November 1984, EPA-330/9-78-001-R.
"Data Quality Objectives for Remedial Response Activities," U.S.
EPA, Office of Emergency and Remedial Response and Office of
Waste Programs Enforcement, EPA/540/G-87/003, March 1987, OSWER
Directive No. 9335.0-7B.
"Guidelines and Specifications for Preparing Quality Assurance
Project Plans," U.S. EPA, Office of Research and Development,
Cincinnati, OH, QAMS-004/80, December 29, 1980.
"Interim Guidelines and Specifications for Preparing Quality
Assurance Project Plans," U.S. EPA, Office of Emergency and
Remedial Response, QAMS-005/80, December 1980.
"Users Guide to the EPA Contract Laboratory Program," U.S. EPA,
Sample Management Office, August 1982.
"Interim Guidance on Compliance with Applicable or Relevant and
Appropriate Requirements," U.S. EPA, Office of Emergency and
Remedial Response, July 9, 1987, OSWER Directive No. 9234.0-05.
"CERCLA Compliance with Other Laws Manual," Two Volumes, U.S.
EPA, Office of Emergency and Remedial Response, August 1988
(draft), OSWER Directive No. 9234.1-01 and -02.
-------
20 9835.8A
"Guidance on Remedial Actions for Contaminated Ground Water at
Superfund Sites," U.S. EPA, Office of Emergency and Remedial
Response, (draft), OSWER Directive No. 9283.1-2.
"Draft Guidance on Preparing Superfund Decision Documents," U.S.
EPA, Office of Emergency and Remedial Response, March 1988, OSWER
Directive No. 9355.3-02
"Risk Assessment Guidance for Superfund - Volume I Human Health
Evaluation Manual (Part A)," December 1989, EPA/540/1-89/002
"Risk Assessment Guidance for Superfund - Volume II
Environmental Evaluation Manual," March 1989, EPA/540/1-89/001
"Guidance for Data Useability in Risk Assessment," October, 1990,
EPA/540/G-90/008
"Performance of Risk Assessments in Remedial Investigation
/Feasibility Studies (RI/FSs) Conducted by Potentially
Responsible Parties (PRPs)," August 28, 1990, OSWER Directive No.
9835.15.
"Role of the Baseline Risk Assessment in Superfund Remedy
Selection Decisions," April 22, 1991, OSWER Directive No. 9355.0-
30.
"Health and Safety Requirements of Employees Employed in Field
Activities," U.S. EPA, Office of Emergency and Remedial Response,
July 12, 1981, EPA Order No. 1440.2.
OSHA Regulations in 29 CFR 1910.120 (Federal Register 45654,
December 19, 1986).
"Interim Guidance on Administrative Records for Selection of
CERCLA Response Actions," U.S. EPA, Office of Waste Programs
Enforcement, March 1, 1989, OSWER Directive No. 9833.3A.
"Community Relations in Superfund: A Handbook," U.S. EPA, Office
of Emergency and Remedial Response, June 1988, OSWER Directive
No. 9230.0#3B.
"Community Relations During Enforcement Activities And
Development of the Administrative Record," U.S. EPA, Office of
Programs Enforcement, November 1988, OSWER Directive No.
9836.0-1A.
-------
OSWER Directive Number 9835.3-2A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [#]
IN THE MATTER OF: )
)
[SITE NAME] [SITE NUMBER] )
)
[COMPANY NAME )
Address ] )
)
RESPONDENTS] )
)
)
Proceeding Under Sections 104, 122 (a), ) U.S. EPA Docket No,
and 122(d)(3) of the Comprehensive )
Environmental Response, Compensation, )
and Liability Act as amended )
(42 U.S.C SS 9604, 9622(a), )
9622(d)(3)). )
ADMINISTRATIVE ORDER ON CONSENT
FOR REMEDIAL INVESTIGATION/FEASIBILITY STUDY
Operable Unit No.
I. INTRODUCTION
1. This Administrative Order on Consent (Consent Order) is
entered into voluntarily by the United States Environmental
Protection Agency (EPA) and [name of Respondent(s)]
(Respondent(s)). The Consent Order concerns the preparation of,
performance of, and reimbursement for all costs incurred by EPA
in connection with a remedial investigation and feasibility study
(RI/FS) for the [operable unit consisting of] at the [site name]
located in [site location] ("site") [as well as past response
costs].
II. JURISDICTION
2. This Consent Order is issued under the authority vested
in the President of the United States by sections 104, 122(a) and
122(d)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. SS 9604,
9622(a), 9622(d)(3) (CERCLA). This authority was delegated to
the Administrator of EPA on January 23, 1987, by Executive Order
12580, 52 Fed. Reg. 2926 (1987), and further delegated to
-------
OSWER Directive Number 9835. 3-2A
Regional Administrators on September 13, 1987, by EPA Delegation
No. 14-14-C. [This authority has been redelegated by the
Regional Administrator to . ]
3. The Respondent(s) agrees to undertake all actions
required by the terms and conditions of this Consent Order. In
any action by EPA or the United States to enforce the terms of
this Consent Order, Respondent(s) consents to and agrees not to
contest the authority or jurisdiction of the Regional
Administrator to issue or enforce this Consent Order, and agrees
not to contest the validity of this Order or its terms.
III. PARTIES BOUND
4. This Consent Order shall apply to and be binding upon
EPA and shall be binding upon the Respondent(s), its agents,
successors, assigns, officers, directors and principals.
Respondent(s) is jointly and severally responsible for carrying
out all actions required of it by this Consent Order. The
signatories to this Consent Order certify that they are
authorized to execute and legally bind the parties they represent
to this Consent Order. No change in the ownership or corporate
status of the Respondent(s) or of the facility or site shall
alter Respondent(s)' responsibilities under this Consent Order.
5. The Respondent(s) shall provide a copy of this Consent
Order to any subsequent owners or successors before ownership
rights or stock or assets in a corporate acquisition are
transferred. Respondent(s) shall provide a copy of this Consent
Order to all contractors, subcontractors, laboratories, and
consultants which are retained to conduct any work performed
under this Consent Order, within 14 days after the effective date
of this Consent Order or the date of retaining their services,
whichever is later. Respondent(s) shall condition any such
contracts upon satisfactory compliance with this Consent Order.
Notwithstanding the terms of any contract, Respondent(s) is
responsible for compliance with this Consent.Order and for
ensuring that its subsidiaries, employees, contractors,
consultants, subcontractors, agents and attorneys comply with
this Consent Order.
IV. STATEMENT OF PURPOSE
6. In entering into this Consent Order, the objectives of
EPA and the Respondent(s) are: (a) to determine the nature and
extent of contamination and any threat to the public health,
welfare, or the environment caused by the release or threatened
release of hazardous substances, pollutants or contaminants at or
from the site or facility, by conducting a remedial
investigation; (b) to determine and evaluate alternatives for
-------
OSWER Directive Number 9835.3-2A
remedial action (if any) to prevent, mitigate or otherwise
respond to or remedy any release or threatened release of
hazardous substances, pollutants, or contaminants at or from the
site or facility, by conducting a feasibility study; and (c) to
recover response and oversight costs incurred by EPA with respect
to this Consent Order.
7. The activities conducted under this Consent Order are
subject to approval by EPA and shall provide all appropriate
necessary information for the RI/FS, with the exception of the
baseline risk assessment performed by EPA, and for a record of
decision that is consistent with CERCLA and the National
Contingency Plan (NCP), 40 C.F.R. Part 300. The activities
conducted under this Consent Order shall be conducted in
compliance with all applicable EPA guidances, policies, and
procedures.
V. FINDINGS OF FACT
[Note: Provide enough information in this section for the
Order to stand on its own. The findings of fact need to
establish and justify the conclusions of law set forth in
the Order.]
8. [Identify the site with the name, location, and
description, including geography, description of aquatic and
terrestrial communities, and brief site history.]
9. [Provide information that there are hazardous
substances at the site by listing the specific chemicals found at
the site, and their locations, concentrations and quantities
where known, including description of studies conducted to find
the hazardous substances.]
10. [Describe actual and/or potential release and
contaminant migration pathways, making clear that these are not
exclusive.]
11. [Briefly note some health/environmental effects of some
major contaminants.]
12. [State that the site is on the [proposed] National
Priorities List. Reference section 105 of CERCLA and Federal
Register in which notice of listing appeared.]
13. [Identify each Respondent, i.e., name/business.]
14. [For each Respondent, state the connection between the
Respondent and the site, e.g., owner or operator of a hazardous
-------
OSWER Directive Number 9835.3-2A
waste site, or person who arranged for disposal or treatment of,
or transporter of hazardous substances found at the site.]
15. [Identify prior response and enforcement actions, if
any, taken at the site.]
VI. CONCLUSIONS OF LAW AND DETERMINATIONS
16. The site is a "facility" as defined in section 101(9)
of CERCLA, 42 U.S.C. S9601(9).
17. Wastes and constituents thereof [at the site, sent to
the site, disposed of at the site, and/or transported to the
site] identified in paragraph 9 are "hazardous substances" as
defined in section 101(14) of CERCLA, 42 U.S.C. §9601(14), or
constitute "any pollutant or contaminant" that may present an
imminent and substantial danger to public health or welfare under
section 104(a)(1) of CERCLA.
18. The presence of hazardous substances at the site or the
past, present or potential migration of hazardous substances
currently located at or emanating from the site, constitute
actual and/or threatened "releases" as defined in section 101(22)
of CERCLA, 42 U.S.C. §9601(22).
19. Respondent(s) is a "person" as defined in section
101(21) Of CERCLA, 42 U.S.C. §9601(21).
20. Respondent(s) is a responsible party under sections
104, 107 and 122 of CERCLA, 42 U.S.C. SS 9604, 9607 and 9622.
21. The actions required by this Consent Order are
necessary to protect the public health or welfare or the
environment, are in the public interest, 42 U.S.C. §9622(a), are
consistent with CERCLA and the NCP, 42 U.S.C. SS 9604(a)(l),
9622(a), and will expedite effective remedial action and minimize
litigation, 42 U.S.C. §9622(a).
VII. NOTICE
22. By providing a copy of this Consent Order to the state,
EPA is notifying the state of [name of state] that this Order is
being issued and that EPA is the lead agency for coordinating,
overseeing, and enforcing the response action required by the
Order.
-------
OSWER Directive Number 9835. 3-2A
VIII. WORK TO BE PERFORMED
23. All work performed under this Consent Order shall be
under the direction and supervision of qualified personnel.
Within 30 days of the effective date of this Order, and before
the work outlined below begins, the Respondent(s) shall notify
EPA in writing of the names, titles, and qualifications of the
personnel, including contractors, subcontractors, consultants and
laboratories to be used in carrying out such work. The
qualifications of the persons under-taking the work for
Respondent(s) shall be subject to EPA's review, for verification
that such persons meet minimum technical background and
experience requirements. This Order is contingent on
Respondent(s)' demonstration to EPA's satisfaction that
Respondent(s) is qualified to perform properly and promptly the
actions set forth in this Consent Order. If EPA disapproves in
writing of any person(s)' technical qualifications, Respondent(s)
shall notify EPA of the identity and qualifications of the
replacement(s) within 30 days of the written notice. If EPA
subsequently disapproves of the replacement(s), EPA reserves the
right to terminate this Order and to conduct a complete RI/FS,
and to seek reimbursement for costs and penalties from
Respondent(s). During the course of the RI/FS, Respondent(s)
shall notify EPA in writing of any changes or additions in the
personnel used to carry out such work, providing their names,
titles, and qualifications. EPA shall have the same right to
approve changes and additions to personnel as it has hereunder
regarding the initial notification.
24. Respondent(s) shall conduct activities and submit
deliverables as provided by the attached RI/FS Statement of Work,
which is incorporated by reference, for the development of the
RI/FS. All such work shall be conducted in accordance with
CERCLA, the NCP, and EPA guidance including, but not limited to,
the "Interim Final Guidance for Conducting Remedial
Investigations and Feasibility Studies under CERCLA" (OSWER
Directive # 9355.3-01), "Guidance for Data Useability in Risk
Assessment" (OSWER Directive /9285.7-05) and guidances referenced
therein, and guidances referenced in the statement of Work, as
may be amended or modified by EPA. The general activities that
Respondent(•) is required to perform are identified below,
followed by a list of deliverables. The tasks that Respondent(s)
must perform are described more fully in the Statement of Work
and guidances. The activities and deliverables identified below
shall be developed as provisions in the work plan and sampling
and analysis plan, and shall be submitted to EPA as provided.
All work performed under this Consent Order shall be in
accordance with the schedules herein, and in full accordance with
the standards, specifications, and other requirements of the work
plan and sampling and analysis plan, as initially approved or
-------
OSWER Directive Number 9835. 3-2A
modified by EPA, and as may be amended or modified by EPA from
time to tine. For the purposes of this Order, day means calendar
day unless otherwise noted in the Order.
A. Task I; Scoping. EPA determines the site-specific objectives
of the RI/FS and devises a general management approach for the
site, as stated in the attached Statement of Work. Respondent(s)
shall conduct the remainder of scoping activities as described in
the attached Statement of Work and referenced guidances. At the
conclusion of the project planning phase, Respondent(s) shall
provide EPA with the following deliverables:
1. RI/FS Work Plan. Within days of the effective date
of this Order, Respondent(s) shall submit to EPA a complete
RI/FS work plan. If EPA disapproves of or requires
revisions to the RI/FS work plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
2. Sampling and Analysis Plan, within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the sampling and analysis plan. This plan shall consist
of a field sampling plan (FSP) and a quality assurance
project plan (QAPjP), as described in the Statement of Work
and guidances. If EPA disapproves of or requires revisions
to the sampling and analysis plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
sampling and analysis plan which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
3. Site Health and Safety Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the site health and safety plan.
Following approval or modification by EPA, the RI/FS work
plan and the sampling and analysis plan are incorporated by
reference herein.
B. Task I]|i Community Relations Plan. EPA will prepare a
community relations plan, in accordance with EPA guidance and the
NCP. Respondent(s) shall provide information supporting EPA's
community relations programs.
C. Task III; Site Characterization. Following EPA approval or
modification of the work plan and sampling and analysis plan,
Respondent(s) shall implement the provisions of these plans to
characterize the site. Respondent(s) shall complete site
-------
OSWER Directive Number 9835. 3-2A
characterization within months of EPA approval or
modification of the work plan and sampling and analysis plan.
Respondent(s) shall provide EPA with analytical data within
days of each sampling activity, in a electronic format (i.e.,
computer disk) showing the location, medium and results. Within
7 days of completion of field activities, Respondent(s) shall
notify EPA in writing. During site characterization,
Respondent(s) shall provide EPA with the following deliverables,
as described in the Statement of Work and work plan:
!• Technical Memorandum on Modeling of Site
Characteristics. Where Respondent(s) proposes that
modeling is appropriate, within days of the
initiation of site characterization, Respondent(s)
shall submit a technical memorandum on modeling of site
characteristics, as described in the Statement of Work.
If EPA disapproves of or requires revisions to the
technical memorandum on modeling of site
characteristics, in whole or in part, Respondent(s)
shall amend and submit to EPA a revised technical
memorandum on modeling of site characteristics which is
responsive to the directions in all EPA comments,
within days of receiving EPA's comments.
2. Preliminary Site Characterization Summary, within
days of completion of the field sampling and
analysis, as specified in the work plan, Respondent(s)
shall submit a site characterization summary to EPA.
D. Draft Remedial Investigation Report [See Task III of the
attached Statement of Work.] Within days of receipt,
respondent(s) shall submit a draft remedial investigation report
consistent with the Statement of Work, work plan, sampling and
analysis plan. If EPA disapproves of or requires revisions to
the remedial investigation report, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised remedial
investigation report which is responsive to the directions in all
EPA comments, within days of receiving EPA's comments.
E. Task IV; Treatabilitv Studies. Respondent(s) shall conduct
treatability studies, except where Respondent(s) can demonstrate
to EPA's satisfaction that they are not needed. Major components
of the treatability studies include determination of the need for
and scope of studies, the design of the studies, and the
completion of the studies, as described in the Statement of Work.
During treatability studies, Respondent(s) shall provide
EPA with the following deliverables:
1. Identification of Candidate Technologies Memorandum.
This memorandum shall be submitted within days of
-------
OSWER Directive Number 9835.3-2A
the effective date of this Order. If EPA disapproves
of or requires revisions to the technical memorandum
identifying candidate technologies, in whole or in
part, Respondent(s) shall amend and submit to EPA a
revised technical memorandum identifying candidate
technologies which is responsive to the directions in
all EPA comments, within days of receiving EPA's
comments.
2. Treatabilitv Testing Statement of Work. If EPA
determines that treatability testing is required,
within days thereafter [or as specified by EPA],
Respondent(s) shall submit a treatability testing
statement of work.
3. Treatability Testing Work Plan. Within days
of submission of the treatability testing statement of
work, Respondent(s) shall submit a treatability testing
work plan, including a schedule. If EPA disapproves of
or requires revisions to the treatability testing work
plan, in whole or in part, Respondent(s) shall amend
and submit to EPA a revised treatability testing work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
4. Treatability Study Sampling and Analysis Plan.
Within days of the identification of the need for a
separate or revised QAPP or FSP, Respondent(s) shall
submit a treatability study sampling and analysis plan.
If EPA disapproves of or requires revisions to the
treatability study sampling and analysis plan, in whole
or in part, Respondent(s) shall amend and submit to EPA
a revised treatability study sampling and analysis plan
which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
5. Treatability Study Site Health and Safety Plan.
Within days of the identification of the need for a
revised health and safety plan, Respondent(s) shall
submit a treatability study site health and safety
plan.
6. Treatabilitv Study Evaluation Report. Within
days of completion of any treatability testing,
Respondent(s) shall submit a treatability study
evaluation report as provided in the Statement of Work
and work plan. If EPA disapproves of or requires
revisions to the treatability study report, in whole or
in part, Respondent(s) shall amend and submit to EPA a
revised treatability study report which is responsive
8
-------
OSWER Directive Number 9835.3-2A
to the directions in all EPA comments, within days
of receiving EPA's comments.
F. Task V; Development and Screening of Alternatives.
Respondent(s) shall develop an appropriate range of waste
management options that will be evaluated through the development
and screening of alternatives, as provided in the Statement of
Work and work plan. During the development and screening of
alternatives, Respondent(s) shall provide EPA with the following
deliverables:
1. Memorandum on Remedial Action Objectives. Within
days of receipt of EPA's baseline risk assessment,
Respondent(s) shall submit a memorandum on remedial action
objectives.
2. Memorandum on Development and Preliminary Screening of
Alternatives. Assembled Alternatives Screening Results and
Final Screening. Within days of submittal of the
memorandum on remedial action objectives, Respondent(s)
shall submit a memorandum summarizing the development and
screening of remedial alternatives, including an
alternatives array document as described in the Statement of
Work.
G. Task VI; Detailed Analysis of Alternatives. Respondent(s)
shall conduct a detailed analysis of remedial alternatives, as
described in the Statement of Work and work plan. During the
detailed analysis of alternatives, Respondent(s) shall provide
EPA with the following deliverables and presentation:
1. Report on Comparative Analysis and Presentation to EPA.
Within days of submission of a memorandum on the
development and screening of remedial alternatives,
Respondent(s) shall submit a report on comparative analysis
to EPA summarizing the results of the comparative analysis
performed between the remedial alternatives. If EPA
disapproves of or requires revisions to the report on
comparative analysis, Respondent(s) shall amend and submit
to EPA a revised report on comparative analysis which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments. Within two weeks of
submitting the original report on comparative analysis,
Respondent(s) shall make a presentation to EPA during which
Respondent(s) shall summarize the findings of the remedial
investigation and remedial action objectives, and present
the results of the nine criteria evaluation and comparative
analysis, as described in the statement of Work.
-------
OSWER Directive Number 9835. 3-2A
2. Draft Feasibility Study Report. Within days of
the presentation to EPA, Respondent(s) shall submit a
draft feasibility study report which reflects the
findings in EPA's baseline risk assessment.
Respondent(s) shall refer to Table 6-5 of the RI/FS
Guidance for report content and format. If EPA
disapproves of or requires revisions to the draft
feasibility study report in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
feasibility study report which is responsive to the
directions in all EPA comments, within days of
receiving EPA's comments. The report as amended, and
the administrative record, shall provide the basis for
the proposed plan under CERCLA SS 113(k) and 117(a) by
EPA, and shall document the development and analysis of
remedial alternatives.
25. EPA reserves the right to comment on, modify and direct
changes for all deliverables. At EPA's discretion, Respondent(s)
must fully correct all deficiencies and incorporate and integrate
all information and comments supplied by EPA either in subsequent
or resubmitted deliverables.
26. Respondent(s) shall not proceed further with any
subsequent activities or tasks until receiving EPA approval for
the following deliverables: RI/FS work plan and sampling and
analysis plan, draft remedial investigation report, treatability
testing work plan and sampling and analysis plan, [delete any of
the foregoing not required as a deliverable] and draft
feasibility study report. While awaiting EPA approval on these
deliverables, Respondent(s) shall proceed with all other tasks
and activities which may be conducted independently of these
deliverables, in accordance with the schedule set forth in this
Consent Order.
27. Upon receipt of the draft FS report, EPA will evaluate,
as necessary, the estimates of the risk to the public and
environment that are expected to remain after a particular
remedial alternative has been completed.
28. For all remaining deliverables not enumerated above in
paragraph 26, Respondent(s) shall proceed with all subsequent
tasks, activities and deliverables without awaiting EPA approval
on the submitted deliverable. EPA reserves the right to stop
Respondent(s) from proceeding further, either temporarily or
permanently, on any task, activity or deliverable at any point
during the RI/FS.
29. In the event that Respondent(s) amends or revises a
report, plan or other submittal upon receipt of EPA comments, if
10
-------
OSWER Directive Number 9835. 3-2A
EPA subsequently disapproves of the revised submittal, or if
subsequent submittals do not fully reflect EPA's directions for
changes, EPA retains the right to seek stipulated or statutory
penalties; perform its own studies, complete the RI/FS (or any
portion of the RI/FS) under CERCLA and the NCP, and seek
reimbursement from the Respondent(s) for its costs; and/or seek
any other appropriate relief.
30. In the event that EPA takes over some of the tasks, but
not the preparation of the RI/FS, Respondent(s) shall incorporate
and integrate information supplied by EPA into the final RI/FS
report.
31. Neither failure of EPA to expressly approve or
disapprove of Respondent(s)' submissions within a specified time
period(s), nor the absence of comments, shall be construed as
approval by EPA. Whether or not EPA gives express approval for
Respondent(s)' deliverables, Respondent(s) is responsible for
preparing deliverables acceptable to EPA.
32. Respondent(s) shall, prior to any off-site shipment of
hazardous substances from the site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving state
and to EPA's Designated Project Coordinator of such shipment of
hazardous, substances. However, the notification of shipments
shall not apply to any such off-site shipments when the total
volume of such shipments will not exceed 10 cubic yards.
(a) The notification shall be in writing, and shall include
the following information, where available: (1) the name and
location of the facility to which the hazardous substances are to
be shipped; (2) the type and quantity of the hazardous substances
to be shipped; (3) the expected schedule for the shipment of the
hazardous substances; and (4) the method of transportation.
Respondent(s) shall notify the receiving state of major changes
in the shipment plan, such as a decision to ship the hazardous
substances to another facility within the same state, or to a
facility in another state.
(b) Th« identity of the receiving facility and state will
be determined by Respondent(s) following the award of the
contract for the remedial investigation and feasibility study.
Respondent(s) shall provide all relevant information, including
information under the categories noted in paragraph 31(a) above,
on the off-site shipments, as soon as practical after the award
of the contract and before the hazardous substances are actually
shipped.
11
-------
OSWER Directive Number 9835.3-2A
IX. EPA'S BASELINE RISK ASSESSMENT
33. EPA will perform the baseline risk assessment.
Respondent(s) shall support EPA in the effort by providing
various information to EPA as outlined above. The major
components of the baseline risk assessment include contaminant
identification, exposure assessment, toxicity assessment, and
human health and ecological risk characterization.
EPA will provide, after review of the respondent's site char-
acterization summary, sufficient information concerning the
baseline risks such that the respondent(s) can begin drafting the
feasibility study report and the Memorandum on Remedial Action
Objectives. This information will normally be in the form of two
or more baseline risk assessment memoranda prepared by EPA. One
memorandum will generally include a list of the chemicals of
concern for human health and ecological effects and the
corresponding toxicity values. Another should list the current
and potential future exposure scenarios, exposure assumptions,
and exposure point concentrations that EPA plans to use in the
baseline risk assessment. The public, including the
Respondent(s), may comment on these memoranda. However, the
Agency is obligated to respond only to significant comments that
are submitted during the formal public comment period.
After considering any significant comments received, EPA will
prepare a baseline risk assessment report based on the data
collected by the respondents during the site character-
ization. EPA will release this report to the public at the same
time it releases the final RI report. Both reports will be put
into the administrative record for the site.
EPA will respond to all significant comments on the memoranda or
the baseline risk assessment that are resubmitted during the
formal comment period in the Responsiveness Summary of the Record
of Decision.
X. MODIFICATION OF THE WORK PLAN
34. If at any time during the RI/FS process, Respondent(s)
identifies a need for additional data, a memorandum documenting
the need for additional data shall be submitted to the EPA
Project Coordinator within 20 days of identification. EPA in its
discretion will determine whether the additional data will be
collected by Respondent(s) and whether it will be incorporated
into reports and deliverables.
35. In the event of conditions posing an immediate threat
to human health or welfare or the environment, Respondent(s)
shall notify EPA and the state immediately. In the event of
12
-------
OSWER Directive Number 9835.3-2A
unanticipated or changed circumstances at the site, Respondent(s)
shall notify the EPA Project Coordinator by telephone within 24
hours of discovery of the unanticipated or changed circumstances.
In addition to the authorities in the NCP, in the event that EPA
determines that the immediate threat or the unanticipated or
changed circumstances warrant changes in the work plan, EPA shall
modify or amend the work plan in writing accordingly.
Respondent(s) shall perform the work plan as modified or amended.
36. EPA may determine that in addition to tasks defined in
the initially approved work plan, other additional work may be
necessary to accomplish the objectives of the RI/FS as set forth
in the Statement of Work for this RI/FS. EPA may require that
the Respondent(s) perform these response actions in addition to
those required by the initially approved work plan, including any
approved modifications, if it determines that such actions are
necessary for a complete RI/FS. Respondent(s) shall confirm its
willingness to perform the additional work in writing to EPA
within 7 days of receipt of the EPA request or Respondent(s)
shall invoke dispute resolution. Subject to EPA resolution of
any dispute, Respondent(s) shall implement the additional tasks
which EPA determines are necessary. The additional work shall be
completed according to the standards, specifications, and
schedule set forth or approved by EPA in a written modification
to the work plan or written work plan supplement. EPA reserves
the right to conduct the work itself at any point, to seek
reimbursement from Respondent(s), and/or to seek any other
appropriate relief.
XI. QUALITY ASSURANCE
37. Respondent(s) shall assure that work performed, samples
taken and analyses conducted conform to the requirements of the
Statement of Work, the QAPP and guidances identified therein.
Respondent(s) will assure that field personnel used by
Respondent(s) are properly trained in the use of field equipment
and in chain of custody procedures.
XII. FINAL RI/FS. PROPOSED PLAN. PUBLIC COMMENT.
RECORD OF DECISION. ADMINISTRATIVE RECORD
38. EPA retains the responsibility for the release to the
public of the RI/FS report. EPA retains responsibility for the
preparation and release to the public of the proposed plan and
record of decision in accordance with CERCLA and the NCP.
39. EPA shall provide Respondent(s) with the final RI/FS
report, proposed plan and record of decision.
13
-------
OSWER Directive Number 9835. 3-2A
40. EPA will determine the contents of the administrative
record file for selection of the remedial action. Respondent(s)
must submit to EPA documents developed during the course of the
RI/FS upon which selection of the response action may be based.
Respondent(s) shall provide copies of plans, task memoranda
including documentation of field modifications, recommendations
for further action, quality assurance memoranda and audits, raw
data, field notes, laboratory analytical reports and other
reports. Respondent(s) must additionally submit any previous
studies conducted under state, local or other federal authorities
relating to selection of the response action, and all
communications between Respondent(s) and state, local or other
federal authorities concerning selection of the response action.
At EPA's discretion, Respondent(s) may establish a community
information repository at or near the site, to house one copy of
the administrative record.
XIII. PROGRESS REPORTS AND MEETINGS
41. Respondent(s) shall make presentations at, and
participate in, meetings at the request of EPA during the
initiation, conduct, and completion of the RI/FS. In addition to
discussion of the technical aspects of the RI/FS, topics will
include anticipated problems or new issues. Meetings will be
scheduled at EPA's discretion.
42. In addition to the deliverables set forth in this
Order, Respondent(s) shall provide to EPA monthly progress
reports by the 10th day of the following month. At a minimum,
with respect to the preceding month, these progress reports shall
(1) describe the actions which have been taken to comply with
this Consent Order during that month, (2) include all results of
sampling and tests and all other data received by the
Respondent(s), (3) describe work planned for the next two months
with schedules relating such work to the overall project schedule
for RI/FS completion and (4) describe all problems encountered
and any anticipated problems, any actual or anticipated delays,
and solutions developed and implemented to address any actual or
anticipated problems or delays.
XIV. SAMPLING. ACCESS. AND DATA AVAILABILITY/ADMISSIBILITY
43. All results of sampling, tests, modeling or other data
(including raw data) generated by Respondent(s), or on
Respondent(s)' behalf, during implementation of this Consent
Order, shall be subaitted to EPA in the subsequent monthly
progress report as described in Section XII of this Order. EPA
will make available to the Respondent(s) validated data generated
by EPA unless it is exempt from disclosure by any federal or
state lav or regulation.
14
-------
OSWER Directive Number 9835.3-2A
44. Respondent(s) will verbally notify EPA at least 15 days
prior to conducting significant field events as described in the
Statement of Work, work plan or sampling and analysis plan. At
EPA's verbal or written request, or the request of EPA's
oversight assistant, Respondent(s) shall allow split or duplicate
samples to be taken by EPA (and its authorized representatives)
of any samples collected by the Respondent(s) in implementing
this Consent Order. All split samples of Respondent(s) shall be
analyzed by the methods identified in the QAPP.
45. At all reasonable times, EPA and its authorized
representatives shall have the authority to enter and freely move
about all property at the site and off-site areas where work, if
any, is being performed, for the purposes of inspecting
conditions, activities, the results of activities, records,
operating logs, and contracts related to the site or
Respondent(s) and its contractor pursuant to this Order;
reviewing the progress of the Respondent(s) in carrying out the
terms of this Consent Order; conducting tests as EPA or its
authorized representatives deem necessary; using a camera, sound
recording device or other documentary type equipment; and
verifying the data submitted to EPA by the Respondent(s). The
Respondent(s) shall allow these persons to inspect and copy all
records, files, photographs, documents, sampling and monitoring
data, and other writings related to work undertaken in carrying
out this Consent Order. Nothing herein shall be interpreted as
limiting or affecting EPA's right of entry or inspection
authority under federal law. All parties with access to the site
under this paragraph shall comply with all approved health and
safety plans.
46. The Respondent(s) may assert a claim of business
confidentiality covering part or all of the information submitted
to EPA pursuant to the terms of this Consent Order under 40
C.F.R. S2.203, provided such claim is allowed by section
104(e)(7) of CERCLA, 42 U.S.C. S9604(e)(7). This claim shall be
asserted in the manner described by 40 C.F.R. S2.203(b) and
substantiated at the time the claim is made. Information
determined to be confidential by EPA will be given the protection
specified in 40 C.F.R. Part 2. If no such claim accompanies the
information when it is submitted to EPA, it may be made available
to the public by EPA or the state without further notice to the
Respondent(s). Respondent(s) agrees not to assert
confidentiality claims with respect to any data related to site
conditions, sampling, or monitoring.
47. In entering into this Order, Respondent(s) waives any
objections to any data gathered, generated, or evaluated by EPA,
the state or Respondent(s) in the performance or oversight of the
work that has been verified according to the quality
15
-------
OSWER Directive Number 9835.3-2A
assurance/quality control (QA/QC) procedures required by the
Consent Order or any EPA-approved work plans or sampling and
analysis plans. If Respondent(s) objects to any other data
relating to the RI/FS, Respondent(s) shall submit to EPA a report
that identifies and explains its objections, describes the
acceptable uses of the data, if any, and identifies any
limitations to the use of the data. The report must be submitted
to EPA within 15 days of the monthly progress report containing
the data.
48. If the site, or the off-site area that is to be used
for access or is within the scope of the RI/FS, is owned in whole
or in part by parties other than those bound by this Consent
Order, Respondent(s) will obtain, or use its best efforts to
obtain, site access agreements from the present owner(s) within
days of the effective date of this Consent Order. Such
agreements shall provide access for EPA, its contractors and
oversight officials, the state and its contractors, and the
Respondent(s) or its authorized representatives, and such
agreements shall specify that Respondent(s) is not EPA's
representative with respect to liability associated with site
activities. Copies of such agreements shall be provided to EPA
prior to Respondent(s)' initiation of field activities.
Respondent(s)' best efforts shall include providing reasonable
compensation to any off-site property owner. If access
agreements are not obtained within the time referenced above,
Respondent(s) shall immediately notify EPA of its failure to
obtain access. EPA may obtain access for the Respondent(s),
perform those tasks or activities with EPA contractors, or
terminate the Consent Order in the event that Respondent(s)
cannot obtain access agreements. In the event that EPA performs
those tasks or activities with EPA contractors and does not
terminate the Consent Order, Respondent(s) shall perform all
other activities not requiring access to that site, and shall
reimburse EPA for all costs incurred in performing such
activities. Respondent(s) additionally shall integrate the
results of any such tasks undertaken by EPA into its reports and
deliverables. Furthermore, the Respondent(s) agrees to indemnify
the U.S. Government as specified in Section XXV of this Order.
Respondent(») also shall reimburse EPA for all costs and attorney
fees incurred by the United States to obtain access for the
Respondent(•) pursuant to paragraph 70.
XV. DESIGNATED PROJECT COORDINATORS
49. Documents including reports, approvals, disapprovals,
and other correspondence which must be submitted under this
Consent Order, shall be sent by certified mail, return receipt
requested, to the following addressees or to any other addressees
which the Respondent(s) and EPA designate in writing:
16
-------
OSWER Directive Number 9835.3-2A
(a) Documents to be submitted to EPA should be sent to
[indicate number of copies]:
[EPA Project Coordinator,
CERCLA Branch]
US EPA, Region [#],
[Street, City, State, Zip Code].
(b) Documents to be submitted to the Respondent(s) should
be sent to [include number of copies]:
[Name, Title,
Organization,
Street, City, State, Zip Code].
50. On or before the effective date of this Consent Order,
EPA and the Respondent(s) shall each designate their own Project
Coordinator. Each Project Coordinator shall be responsible for
overseeing the implementation of this Consent Order. To the
maximum extent possible, communications between the Respondent(s)
and EPA shall be directed to the Project Coordinator by mail,
with copies to such other persons as EPA, the state, and
Respondent(s) may respectively designate. Communications
include, but are not limited to, all documents, reports,
approvals, and other correspondence submitted under this Consent
Order.
51. EPA and the Respondent(s) each have the right to change
their respective Project Coordinator. The other party must be
notified in writing at least 10 days prior to the change.
52. EPA's Project Coordinator shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and On-Scene
Coordinator (OSC) by the NCP. In addition, EPA's Project
Coordinator shall have the authority consistent with the National
Contingency Plan, to halt any work required by this Consent
Order, and to take any necessary response action when s/he
determines that conditions at the site may present an immediate
endangerment to public health or welfare or the environment. The
absence of the EPA Project Coordinator from the area under study
pursuant to this Consent Order shall not be cause for the
stoppage or delay of work.
53. EPA shall arrange for a qualified person to assist in
its oversight and review of the conduct of the RI/FS, as required
by section 104(a) of CERCLA, 42 U.S.C. §9604(a). The oversight
assistant may observe work and make inquiries in the absence of
EPA, but is not authorized to modify the work plan.
17
-------
OSWER Directive Number 9835. 3-2A
XVI. OTHER APPLICABLE LAWS
54. Respondent(s) shall comply with all laws that are
applicable when performing the RI/FS. No local, state, or
federal permit shall be required for any portion of any action
conducted entirely on-site, including studies, where such action
is selected and carried out in compliance with section 121 of
CERCLA.
XVII. RECORD PRESERVATION
55. All records and documents in EPA's and Respondent's
possession that relate in any way to the site shall be preserved
during the conduct of this Consent Order and for a minimum of 10
years after commencement of construction of any remedial action.
The Respondent(s) shall acquire and retain copies of all
documents that relate to the site and are in the possession of
its employees, agents, accountants, contractors, or attorneys.
After this 10 year period, the Respondent(s) shall notify EPA at
least 90 days before the documents are scheduled to be destroyed.
If EPA requests that the documents be saved, the Respondent(s)
shall, at no cost to EPA, give EPA the documents or copies of the
documents.
XVIII. DISPUTE RESOLUTION
56. Any disputes concerning activities or deliverables
required under this Order, excluding the baseline risk
assessment, for which dispute resolution has been expressly
provided for, shall b« resolved as follows: If the Respondent(s)
objects to any EPA notice of disapproval or requirement made
pursuant to this Consent Order, Respondent(s) shall notify EPA's
Project Coordinator in writing of its objections within 14 days
of receipt of the disapproval notice or requirement.
Respondent(s)' written objections shall define the dispute, state
the basis of Respondent(s)' objections, and be sent certified
mail, return receipt requested. EPA and the Respondent(s) then
have an additional 14 days to reach agreement. If an agreement
is not reached within 14 days, Respondent may request a
determination by EPA's [Branch Chief/Division Director]. The
[Branch Chief's/Division Director's] determination is EPA's final
decision. Respondent(s) shall proceed in accordance with EPA's
final decision regarding the matter in dispute, regardless of
whether Respondent(s) agrees with the decision. If the
Respondent(s) does not agree to perform or does not actually
perform the work in accordance with EPA's final decision, EPA
reserves the right in its sole discretion to conduct the work
itself, to seek reimbursement from the Respondent(s), to seek
enforcement of the decision, to seek stipulated penalties, and/or
to seek any other appropriate relief.
18
-------
OSWER Directive Number 9835.3-2A
57. Respondent(s) is not relieved of its obligations to
perform and conduct activities and submit deliverables on the
schedule set forth in the work plan, while a matter is pending in
dispute resolution. The invocation of dispute resolution does
not stay stipulated penalties under this Order.
XIX. DELAY IN PERFORMANCE/STIPULATED PENALTIES
58. For each day that the Respondent(s) fails to complete a
deliverable in a timely manner or fails to produce a deliverable
of acceptable quality, or otherwise fails to perform in
accordance with the requirements of this Order, Respondent(s)
shall be liable for stipulated penalties. Penalties begin to
accrue on the day that performance is due or a violation occurs,
and extend through the period of correction. Where a revised
submission by Respondent(s) is required, stipulated penalties
shall continue to accrue until a satisfactory deliverable is
produced. EPA will provide written notice for violations that
are not based on timeliness; nevertheless, penalties shall accrue
from the day a violation commences. Payment shall be due within
30 days of receipt of a demand letter from EPA.
59. Respondents shall pay interest on the unpaid balance,
which shall begin to accrue at the end of the 30-day period, at
the rate established by the Department of Treasury pursuant to 30
U.S.C. §3717. Respondents shall further pay a handling charge of
l percent, to be assessed at the end of each 31 day period, and a
6 percent per annum penalty charge, to be assessed if the penalty
is not paid in full within 90 days after it is due.
60. Respondent(s) shall make all payments by forwarding a
check to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
Check* should identify the name of the site, the site
identification number, the account number, and the title of this
Order. A copy of the check and/or transmittal letter shall be
forwarded to the EPA Project Coordinator.
61. For the following major deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first seven days of noncompliance; per
day, per violation, for th« 8th through 14th day of
noncompliance; per day, per violation, for the 15th day
through the 30th day; and per day per violation for all
violations lasting beyond 30 days.
19
-------
OSWER Directive Number 9835. 3-2A
l) An original and any revised work plan.
2) An original and any revised sampling and analysis plan.
3) An original and any revised remedial investigation
report.
4) An original and any revised treatability testing work
plan.
5) An original and any revised treatability study sampling
and analysis plan.
6) An original and any revised feasibility study report.
62. For the following interim deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first week of noncompliance; per day, per
violation, for the 8th through 14th day of noncompliance;
per day, per violation, for the 15th day through the 30th day of
noncompliance; and per day per violation for all violations
lasting beyond 30 days.
1) Technical memorandum on modeling of site
characteristics.
2) Preliminary site characterization summary.
3) Summary of RI data,
4) Identification of candidate technologies memorandum.
5) Treatability testing statement of work.
6) Treatability study evaluation report.
7) Memorandum on remedial action objectives.
8) Memoranda on development and preliminary screening of
alternatives, assembled alternatives screening
results, and final screening.
9) Comparative analysis report.
63. For the monthly progress reports, stipulated penalties
shall accrue in the amount of per day, per violation, for
the first week of noncompliance; per day, per violation, for
the 8th through 14th day of noncompliance; per day, per
violation, for the 15th day through the 30th day; and per
day, per violation, for all violations lasting beyond 30 days.
20
-------
OSWER Directive Number 9835. 3-2A
64. Respondent(s) may dispute EPA's right to the stated
amount of penalties by invoking the dispute resolution procedures
under Section XVII herein. Penalties shall accrue but need not
be paid during the dispute resolution period. If Respondent(s)
do not prevail upon resolution, all penalties shall be due to EPA
within 30 days of resolution of the dispute. If Respondent(s)
prevails upon resolution, no penalties shall be paid.
65. In the event that EPA provides for corrections to be
reflected in the next deliverable and does not require
resubmission of that deliverable, stipulated penalties for that
interim deliverable shall cease to accrue on the date of such
decision by EPA.
66. The stipulated penalties provisions do not preclude EPA
from pursuing any other remedies or sanctions which are available
to EPA because of the Respondent(s)' failure to comply with this
Consent Order, including but not limited to conduct of all or
part of the RI/FS by EPA. Payment of stipulated penalties does
not alter Respondent(s)' obligation to complete performance under
this Consent Order.
XX. FORCE MAJEURE
67. "Force majeure", for purposes of this Consent Order, is
defined as any event arising from causes entirely beyond the
control of the Respondent(s) and of any entity controlled by
Respondent(s), including their contractors and subcontractors,
'that delays the timely performance of any obligation under this
Consent Order notwithstanding Respondent(s)' best efforts to
avoid the delay. The requirement that the Respondent(s) exercise
"best efforts to avoid the delay" includes using best efforts to
anticipate any potential force majeure event and best efforts to
address the effects of any potential force majeure event (1) as
it is occurring and (2) following the potential force majeure
event, such that the delay is minimized to the greatest extent
practicable. Examples of events that are not force majeure
events include, but are not limited to, increased costs or
expenses of any work to be performed under this Order or the
financial difficulty of Respondent(s) to perform such work.
68. If any event occurs or has occurred that may delay the
performance of any obligation under this Order, whether or not
caused by a force majeure event, Respondent(s) shall notify by
telephone the Remedial Project Manager or, in his or her absence,
the Director of the Hazardous Waste Management Division, EPA
Region , within 48 hours of when the Respondent(s) knew or
should have known that the event might cause a delay, within
five business days thereafter, Respondent(s) shall provide in
writing the reasons for the delay; the anticipated duration of
21
-------
OSWER Directive Number 9835. 3-2A
the delay; all actions taken or to be taken to prevent or
minimize the delay; a schedule for implementation of any measures
to be taken to mitigate the effect of the delay; and a statement
as to whether, in the opinion of Respondent(s), such event may
cause or contribute to an endangerment to public health, welfare
or the environment. Respondent(s) shall exercise best efforts to
avoid or minimize any delay and any effects of a delay. Failure
to comply with the above requirements shall preclude
Respondent(s) from asserting any claim of force majeure.
69. If EPA agrees that the delay or anticipated delay is
attributable to force majeure, the time for performance of the
obligations under this Order that are directly affected by the
force majeure event shall be extended by agreement of the
parties, pursuant to section XXVI of this Order, for a period of
time not to exceed the actual duration of the delay caused by the
force majeure event. An extension of the time for performance of
the obligation directly affected by the force majeure event shall
not, of itself, extend the time for performance of any subsequent
obligation.
70. If EPA does not agree that the delay or anticipated
delay has been or will be caused by a force majeure event, or
does not agree with Respondent(s) on the length of the extension,
the issue shall be subject to the dispute resolution procedures
set forth in section XVII of this Order. In any such proceeding,
to qualify for a force majeure defense, Respondent(s) shall have
the burden of demonstrating by a preponderance of the evidence
that the delay or anticipated delay has been or will be caused by
a force majeure event, that the duration of the delay was or will
be warranted under the circumstances, that Respondent(s) did
exercise or is exercising due diligence by using its best efforts
to avoid and mitigate the effects of the delay, and that
Respondent(s) complied with the requirements of paragraph 66.
71. Should Respondent(s) carry the burden set forth in
paragraph 65, the delay at issue shall be deemed not to be a
violation of the affected obligation of this Consent Order.
XXI. REIMBURSEMENT OF PAST COSTS
[Note that the Agency cannot compromise past costs unless the
consent order is also issued under $122(h)(l), and the
requirements of $122(h)(l) are also met, i.e., prior written
approval of the Attorney General is obtained if the total past
and projected response costs exceed $500,000, excluding
interest.]
72. Within 15 days of the effective date of this Order,
Respondent(s) shall remit a certified or cashiers check to EPA in
22
-------
OSWER Directive Number 9835.3-2A
the amount of $ , as previously demanded in the RI/FS Special
Notice Letter dated , together with interest that has
accrued thereon at the rate of interest specified for. the
Hazardous Substances Superfund under CERCLA section 107(a), for
all past response costs incurred by the United States in its
[e.g., conduct of the removal action] at the site from
[date] to [date].
73. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the operable unit, if any, the
Regional Lock Box Number account number and the title of this
Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
74. A copy of the check should be sent simultaneously to
the EPA Project Coordinator.
XXII. REIMBURSEMENT OF RESPONSE AND OVERSIGHT COSTS
75. Following the issuance of this Consent Order, EPA shall
submit to the Respondent(s) on a periodic basis an accounting of
all response costs including oversight costs incurred by the U.S.
Government with respect to this RI/FS. Response costs may
include, but are not limited to, costs incurred by the U.S.
Government in overseeing Respondent(s)' implementation of the
requirements of this Order and activities performed by the
government as part of the RI/FS and community relations,
including any costs incurred while obtaining access. Costs shall
include all direct and indirect costs, including, but not limited
to, time and travel costs of EPA personnel and associated
indirect costs, contractor costs, cooperative agreement costs,
compliance monitoring, including the collection and analysis of
split samples, inspection of RI/FS activities, site visits,
discussions regarding disputes that may arise as a result of this
Consent Order, review and approval or disapproval of reports,
costs of performing the baseline risk assessment, and costs of
redoing any of Respondent(s)' tasks. Any necessary summaries,
including, but not limited to EPA's certified Agency Financial
Management System summary data (SPUR Reports), or such other
summary as certified by EPA, shall serve as basis for payment
demands.
76. Respondent(•) shall, within 30 days of receipt of each
accounting, remit a certified or cashier's check for the amount
of those costs. Interest shall accrue from the later of: the
date payment of a specified amount is demanded in writing; or the
23
-------
OSWER Directive Number 9835. 3-2A
date of the expenditure. The interest rate is the rate of
interest on investments for the Hazardous Substances Superfund in
section 107(a) of CERCLA.
77. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the account number and the title of
this Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
78. Copies of the transmittal letter and check should be
sent simultaneously to the EPA Project Coordinator.
79. Respondent(s) agrees to limit any disputes concerning
costs to accounting errors and the inclusion of costs outside the
scope of this Consent Order. Respondent(s) shall identify any
contested costs and the basis of its objection. All undisputed
costs shall be remitted by Respondent(s) in accordance with the
schedule set forth above. Disputed costs shall be paid by
Respondent(s) into an escrow account while the dispute is
pending. Respondent(s) bears the burden of establishing an EPA
accounting error or the inclusion of costs outside the scope of
this Consent Order.
XXIII. RESERVATIONS OF RIGHTS AND REIMBURSEMENT OF OTHER COSTS
80. EPA reserves the right to bring an action against the
Respondent(s) under section 107 of CERCLA for recovery of all
response costs including oversight costs, incurred by the United
States at the site that are not reimbursed by the Respondent(s),
any costs incurred in the event that EPA performs the RI/FS or
any part thereof, and any future costs incurred by the United
States in connection with response activities conducted under
CERCLA at this site.
81. EPA reserves the right to bring an action against
Respondent(») to enforce the past costs and response and
oversight coat reimbursement requirements of this Consent Order,
to collect stipulated penalties assessed pursuant to section
XVIII of this Consent Order, and to seek penalties pursuant to
section 109 of CERCLA, 42 U.S.C. S9609.
82. Except as expressly provided in this Order, each party
reserves all rights and defenses it may have. Nothing in this
Consent Order shall affect EPA's removal authority or EPA's
response or enforcement authorities including, but not limited
24
-------
OSWER Directive Number 9835. 3-2A
to, the right to seek injunctive relief, stipulated penalties,
statutory penalties, and/or punitive damages.
83. Following satisfaction of the requirements of this
Consent Order, Respondent(s) shall have resolved its liability to
EPA for the work performed by Respondent(s) pursuant to this
Consent Order. Respondent(s) is not released from liability, if
any, for any response actions taken beyond the scope of this
Order regarding removals, other operable units, remedial
design/remedial action of this operable unit, or activities
arising pursuant to section 121(c) of CERCLA.
XXIV. DISCLAIMER
84. By signing this Consent Order and taking actions under
this Order, the Respondent(s) does not necessarily agree with
EPA's Findings of Fact and Conclusions of Law. Furthermore, the
participation of the Respondent(s) in this Order shall not be
considered an admission of liability and is not admissible in
evidence against the Respondent(s) in any judicial or
administrative proceeding other than a proceeding by the United
States, including EPA, to enforce this Consent Order or a
judgment relating to it. Respondent(s) retains its rights to
assert claims against other potentially responsible parties at
the site. However, the Respondent(s) agrees not to contest the
validity or terms of this Order, or the procedures underlying or
relating to it in any action'brought by the United States,
including EPA, to enforce its terms.
XXV. OTHER CLAIMS
85. In entering into this Order, Respondent(s) waives any
right to seek reimbursement under section 106(b) of CERCLA.
Respondent also waives any right to present a claim under section
111 or 112 of CERCLA. This Order does not constitute any
decision on preauthorization of funds under section lll(a)(2) of
CERCLA. Respondent(s) further waives all other statutory and
common law claims against EPA, including, but not limited to,
contribution and counterclaims, relating to or arising out of
conduct of the RI/FS.
86. Nothing in this Order shall constitute or be construed
as a release from any claim, cause of action or demand in law or
equity against any person, firm, partnership, subsidiary or
corporation not a signatory to this Consent Order for any
liability it may have arising out of or relating in any way to
the generation, storage, treatment, handling, transportation,
release, or disposal of any hazardous substances, pollutants, or
contaminants found at, taken to, or taken from the site.
25
-------
OSWER Directive Number 9835.3-2A
87. Respondent(s) shall bear its own costs and attorneys
fees.
XXVI. FINANCIAL ASSURANCE. INSURANCE. AND INDEMNIFICATION
88. Respondent(s) shall establish and maintain a financial
instrument or trust account or other financial mechanism
acceptable to EPA, funded sufficiently to perform the work and
any other obligations required under this Consent Order,
including a margin for cost overruns. Within 15 days after the
effective date of this Consent Order, Respondent(s) shall fund
the financial instrument or trust account sufficiently to perform
the work required under this Consent Order projected for the
period beginning with the effective date of the Order through
. Beginning , and on or before the 15th calendar
day of each calendar year quarter thereafter, Respondent(s) shall
fund the financial instrument or trust account sufficiently to
perform the work and other activities required under this Order
projected for the succeeding calendar year quarter.
89. If at any time the net worth of the financial
instrument or trust account is insufficient to perform the work
and other obligations under the Order for the upcoming quarter,
Respondent(s) shall provide written notice to EPA within 7 days
after the net worth of the financial instrument.or trust account
becomes insufficient. The written notice shall describe why the
financial instrument or trust account is funded insufficiently
and explain what actions have been or will be taken to fund the
financial instrument or trust account adequately.
90. (a) Prior to commencement of any work under this
Order, Respondent(s) shall secure, and shall maintain in force
for the duration of this Order, and for two years after the
completion of all activities required by this Consent Order,
Comprehensive General Liability ("CGL") and automobile insurance,
with limits of $ million dollars, combined single limit,
naming as insured the United States. The CGL insurance shall
include Contractual Liability Insurance in the amount of $
per occurrence, and Umbrella Liability Insurance in the amount of
$2 million per occurrence.
(b) Respondent(s) shall also secure, and maintain in
force for the duration of this Order and for two years after the
completion of all activities required by this Consent Order the
following:
i. Professional Errors and Omissions Insurance in
the amount of $1,000,000.00 per occurrence.
26
-------
OSWER Directive Number 9835.3-2A
ii. Pollution Liability Insurance in the amount of
$1,000,000.00 per occurrence, covering as
appropriate both general liability and
professional liability arising from pollution
conditions.
(c) For the duration of this Order, Respondent(s)
shall satisfy, or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations
regarding the provision of employer's liability insurance and
workmen's compensation insurance for all persons performing work
on behalf of the Respondent(s), in furtherance of this Order.
(d) If Respondent(s) demonstrates by evidence
satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or
insurance covering the same risks but in a lesser amount, then
with respect to that contractor or subcontractor Respondent(s)
need provide only that portion of the insurance described above
which is not maintained by the contractor or subcontractor.
(e) Prior to commencement of any work under this
Order, and annually thereafter on the anniversary of the
effective date of this Order, Respondent(s) shall provide to EPA
certificates of such insurance and a copy of each insurance
policy.
91. At least 7 days prior to commencing any work under this
Consent Order/ Respondent(s) shall certify to EPA that the
required insurance has been obtained by that contractor.
92. The Respondent(s) agrees to indemnify and hold the
United States Government, its agencies, departments, agents, and
employees harmless from any and all claims or causes of action
arising from or on account of acts or omissions of Respondent(s) ,
its employees, agents, servants, receivers, successors, or
assignees, or any persons including, but not limited to, firms,
corporations, subsidiaries and contractors, in carrying out
activities under this Consent Order. The United states
Government or any agency or authorized representative thereof
shall not b« held as a party to any contract entered into by
Respondent(s) in carrying out activities under this Consent
Order.
XXVII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
93. The effective date of this Consent Order shall be the
date it is signed by EPA.
27
-------
OSWER Directive Number 9835. 3-2A
94. This Consent Order may be amended by mutual agreement
of EPA and Respondent(s). Amendments shall be in writing and
shall be effective when signed by EPA. EPA Project Coordinators
do not have the authority to sign amendments to the Consent
Order.
95. No informal advice, guidance, suggestions, or comments
by EPA regarding reports, plans, specifications, schedules, and
any other writing submitted by the Respondent(s) will be
construed as relieving the Respondent(s) of its obligation to
obtain such formal approval as may be required by this Order.
Any deliverables, plans, technical memoranda, reports (other than
progress reports), specifications, schedules and attachments
required by this Consent Order are, upon approval by EPA,
incorporated into this Order.
XXVIII. TERMINATION AND SATISFACTION
96. This Consent Order shall terminate when the
Respondent(s) demonstrates in writing and certifies to the
satisfaction of EPA that all activities required under this
Consent Order, including any additional work, payment of past
costs, response and oversight costs, and any stipulated penalties
demanded by EPA, have been performed and EPA has approved the
certification. This notice shall not, however, terminate
Respondent(s)' obligation to comply with Sections XVI, XXI, and
XXII of this Consent Order.
97. The certification shall be signed by a responsible
official representing each Respondent. Each representative shall
make the following attestation: "I certify that the information
contained in or accompanying this certification is true,
accurate, and complete." For purposes of this Consent Order, a
responsible official is a corporate official who is in charge of
a principal business function.
BY: DATE:
(Respondent(s))Title
BY: DATE:
Regional Administrator [or Delegatee]
U.S. Environmental Protection Agency
28
-------
Annotated OSWER Directive Number 9835.3-2A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION rt#]
IN THE MATTER OF: )
)
[SITE NAME] [SITE NUMBER] )
)
[COMPANY NAME )
Address] )
)
RESPOND ENT[S] )
Proceeding Under Sections 104, 122(a), ) U.S. EPA Docket No.
and 122 (d) (3) of the Comprehensive )
Environmental Response, Compensation, )
and Liability Act as amended )
(42 U.S.C §§ 9604, 9622(a), )
9622(d)(3)). )
ADMINISTRATIVE ORDER ON CONSENT
FOR REMEDIAL INVESTIGATION/FEASIBILITY STUDY
Operable Unit No.
I. INTRODUCTION
1. This Administrative Order on Consent (Consent Order) is
entered into voluntarily by the United States Environmental
Protection Agency (EPA) and [name of Respondent(s)]
(Respondent(s)). The Consent Order concerns the preparation of,
performance of, and reimbursement for all costs incurred by EPA
in connection with a remedial investigation and feasibility study
(RI/FS) for the [operable unit consisting of] at the [site name]
located in [site location] ("site") [as well as past response
costs].
II. JURISDICTION
2. This Consent Order is issued under the authority vested
in the President of the United States by sections 104, 122(a) and
122(d)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9604,
9622(a), 9622(d)(3) (CERCLA). This authority was delegated to
the Administrator of EPA on January 23, 1987, by Executive Order
12580, 52 Fed. Reg. 2926 (1987), and further delegated to
-------
Annotated OSWER Directive Number 9835.3-2A
Regional Administrators on September 13, 1987, by EPA Delegation
No. 14-14-C. [This authority has been redelegated by the
Regional Administrator to . ]
3. The Respondent(s) agrees to undertake all actions
required by the terms and conditions of this Consent Order. In
any action by EPA or the United States to enforce the terms of
this Consent Order, Respondent(s) consents to and agrees not to
contest the authority or jurisdiction of the Regional
Administrator to issue or enforce this Consent Order, and agrees
not to contest the validity of this Order or its terms.
III. PARTIES BOUND
4. This Consent Order shall apply to and be binding upon
EPA and shall be binding upon the Respondent(s), its agents,
successors, assigns, officers, directors and principals.
Respondent(s) is jointly and severally responsible for carrying
out all actions required of it by this Consent Order. The
signatories to this Consent Order certify that they are
authorized to execute and legally bind the parties they represent
to this Consent Order. No change in the ownership or corporate
status of the Respondent(s) or of the facility or site shall
alter Respondent(s)' responsibilities under this Consent Order.
5. The Respondent(s) shall provide a copy of this Consent
Order to any subsequent owners or successors before ownership
rights or stock or assets in a corporate acquisition are
transferred. Respondent(s) shall provide a copy of this Consent
Order to all contractors, subcontractors, laboratories, and
consultants which are retained to conduct any work performed
under this Consent Order, within 14 days after the effective date
of this Consent Order or the date of retaining their services,
whichever is later. Respondent(s) shall condition any such
contracts upon satisfactory compliance with this Consent Order.
Notwithstanding the terms of any contract, Respondent(s) is
responsible for compliance with this Consent Order and for
ensuring that its subsidiaries, employees, contractors,
consultants, subcontractors, agents and attorneys comply with
this Consent Order.
IV. STATEMENT OF PURPOSE
6. In entering into this Consent Order, the objectives of
EPA and the Respondent(s) are: (a) to determine the nature and
extent of contamination and any threat to the public health,
welfare, or the environment caused by the release or threatened
release of hazardous substances, pollutants or contaminants at or
from the site or facility, by conducting a remedial
investigation; (b) to determine and evaluate alternatives for
-------
Annotated OSWER Directive Number 9835.3-2A
remedial action (if any) to prevent, mitigate or otherwise
respond to or remedy any release or threatened release of
hazardous substances, pollutants, or contaminants at or from the
site or facility, by conducting a feasibility study; and (c) to
recover response and oversight costs incurred by EPA with respect
to this Consent Order.
7. The activities conducted under this Consent Order are
subject to approval by EPA and shall provide all appropriate
necessary information for the RI/FS, with the exception of the
baseline risk assessment performed by EPA, and for a record of
decision that is consistent with CERCLA and the National
Contingency Plan (NCP), 40 C.F.R. Part 300. The activities
conducted under this Consent Order shall be conducted in
compliance with all applicable EPA guidances, policies, and
procedures.
V. FINDINGS OF FACT
[Note: Provide enough information in this section for the
Order to stand on its own. The findings of fact need to
establish and justify the conclusions of law set forth in
the Order.]
8. [Identify the site with the name, location, and
description, including geography, description of aquatic and
terrestrial communities, and brief site history.]
9. [Provide information that there are hazardous
substances at the site by listing the specific chemicals found at
the site, and their locations, concentrations and quantities
where known, including description of studies conducted to find
the hazardous substances.]
10. [Describe actual and/or potential release and
contaminant migration pathways, making clear that these are not
exclusive.]
11. [Briefly note some health/environmental effects of some
major contaminants.]
12. [State that the site is on the [proposed] National
Priorities List. Reference section 105 of CERCLA and Federal
Register in which notice of listing appeared.]
13. [Identify each Respondent, i.e., name/business.]
14. [For each Respondent, state the connection between the
Respondent and the site, e.g., owner or operator of a hazardous
-------
Annotated OSWER Directive Number 9835.3-2A
waste site, or person who arranged for disposal or treatment of,
or transporter of hazardous substances found at the site.]
15. [Identify prior response and enforcement actions, if
any, taken at the site.]
VI. CONCLUSIONS OF LAW AND DETERMINATIONS
16. The site is a "facility" as defined in section 101(9)
Of CERCLA, 42 U.S.C. §9601(9).
17. Wastes and constituents thereof [at the site, sent to
the site, disposed of at the site, and/or transported to the
site] identified in paragraph 9 are "hazardous substances" as
defined in section 101(14) of CERCLA, 42 U.S.C. §9601(14), or
constitute "any pollutant or contaminant" that may present an
imminent and substantial danger to public health or welfare under
section 104(a)(1) of CERCLA.
18. The presence of hazardous substances at the site or the
past, present or potential migration of hazardous substances
currently located at or emanating from the site, constitute
actual and/or threatened "releases" as defined in section 101(22)
Of CERCLA, 42 U.S.C. §9601(22).
19. Respondent(s) is a "person" as defined in section
101(21) of CERCLA, 42 U.S.C. §9601(21).
20. Respondent(s) is a responsible party under sections
104, 107 and 122 of CERCLA, 42 U.S.C. §§ 9604, 9607 and 9622.
21. The actions required by this Consent Order are
necessary to protect the public health or welfare or the
environment, are in the public interest, 42 U.S.C. §9622(a), are
consistent with CERCLA and the NCP, 42 U.S.C. §§ 9604(a)(l),
9622(a), and will expedite effective remedial action and minimize
litigation, 42 U.S.C. §9622(a).
VII. NOTICE
22. By providing a copy of this Consent Order to the state,
EPA is notifying the state of [name of state] that this Order is
being issued and that EPA is the lead agency for coordinating,
overseeing, and enforcing the response action required by the
Order.
-------
Annotated OSWER Directive Number 9835.3-2A
VIII. WORK TO BE PERFORMED
23. All work performed under this Consent Order shall be
under the direction and supervision of qualified personnel.
Within 30 days of the effective date of this Order, and before
the work outlined below begins, the Respondent(s) shall notify
EPA in writing of the names, titles, and qualifications of the
personnel, including contractors, subcontractors, consultants and
laboratories to be used in carrying out such work. The
qualifications of the persons undertaking the work for
Respondent(s) shall be subject to EPA's review, for verification
that such persons meet minimum technical background and
experience requirements. This Order is contingent on
Respondent(s)' demonstration to EPA's satisfaction that
Respondent(s) is qualified to perform properly and promptly the
actions set forth in this Consent Order. If EPA disapproves in
writing of any person(s)• technical qualifications, Respondent(s)
shall notify EPA of the identity and qualifications of the
replacement(s) within 30 days of the written notice. If EPA
subsequently disapproves of the replacement(s), EPA reserves the
right to terminate this Order and to conduct a complete RI/FS,
and to seek reimbursement for costs and penalties from
Respondent(s). During the course of the RI/FS, Respondent(s)
shall notify EPA in writing of any changes or additions in the
personnel used to carry out such work, providing their names,
titles, and qualifications. EPA shall have the same right to
approve changes and additions to personnel as it has hereunder
regarding the initial notification.
24. Respondent(s) shall conduct activities and submit
deliverables as provided by the attached RI/FS Statement of Work,
which is incorporated by reference, for the development of the
RI/FS. All such work shall be conducted in accordance with
CERCLA, the NCP, and EPA guidance including, but not limited to,
the "Interim Final Guidance for Conducting Remedial
Investigations and Feasibility Studies under CERCLA" (OSWER
Directive # 9355.3-01), "Guidance for Data Useability in Risk
Assessment" (OSWER Directive #9285.7-05) and guidances referenced
therein, and guidances referenced in the Statement of Work, as
may be amended or modified by EPA. The general activities that
Respondent(s) is required to perform are identified below,
followed by a list of deliverables. The tasks that Respondent(s)
must perform are described more fully in the Statement of Work
and guidances. The activities and deliverables identified below
shall be developed as provisions in the work plan and sampling
and analysis plan, and shall be submitted to EPA as provided.
All work performed under this Consent Order shall be in
accordance with the schedules herein, and in full accordance with
the standards, specifications, and other requirements of the work
plan and sampling and analysis plan, as initially approved or
-------
Annotated OSWER Directive Number 9835.3-2A
modified by EPA, and as may be amended or modified by EPA from
time to time. For the purposes of this Order, day means calendar
day unless otherwise noted in the Order.
A. Task I: Scoping. EPA determines the site-specific objectives
of the RI/FS and devises a general management approach for the
site, as stated in the attached Statement of Work. Respondent(s)
shall conduct the remainder of scoping activities as described in
the attached Statement of Work and referenced guidances. At the
conclusion of the project planning phase, Respondent(s) shall
provide EPA with the following deliverables:
1. RI/FS Work Plan. Within days of the effective date
of this Order, Respondent(s) shall submit to EPA a complete
RI/FS work plan. If EPA disapproves of or requires
revisions to the RI/FS work plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
2. Sampling and Analysis Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the sampling and analysis plan. This plan shall consist
of a field sampling plan (FSP) and a quality assurance
project plan (QAPjP), as described in the Statement of Work
and guidances. If EPA disapproves of or requires revisions
to the sampling and analysis plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
sampling and analysis plan which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
3. Site Health and Safety Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the site health and safety plan.
Following approval or modification by EPA, the RI/FS work
plan and the sampling and analysis plan are incorporated by
reference herein.
B. Task II; Community Relations Plan. EPA will prepare a
community relations plan, in accordance with EPA guidance and the
NCP. Respondent(s) shall provide information supporting EPA's
community relations programs.
C. Task III: Site Characterization. Following EPA approval or
modification of the work plan and sampling and analysis plan,
Respondent(s) shall implement the provisions of these plans to
characterize the site. Respondent(s) shall complete site
-------
Annotated OSWER Directive Number 9835.3-2A
characterization within months of EPA approval or
modification of the work plan and sampling and analysis plan.
Respondent(s) shall provide EPA with analytical data within
days of each sampling activity, in a electronic format (i.e.,
computer disk) showing the location, medium and results. Within
7 days of completion of field activities, Respondent(s) shall
notify EPA in writing. During site characterization,
Respondent(s) shall provide EPA with the following deliverables,
as described in the Statement of Work and work plan:
1. Technical Memorandum on Modeling of Site
Characteristics. Where Respondent(s) proposes that
modeling is appropriate, within days of the
initiation of site characterization, Respondent(s)
shall submit a technical memorandum on modeling of site
characteristics, as described in the Statement of Work.
If EPA disapproves of or requires revisions to the
technical memorandum on modeling of site
characteristics, in whole or in part, Respondent(s)
shall amend and submit to EPA a revised technical
memorandum on modeling of site characteristics which is
responsive to the directions in all EPA comments,
within days of receiving EPA's comments.
2. Preliminary Site Characterization Summary. Within
days of completion of the field sampling and
analysis, as specified in the work plan, Respondent(s)
shall submit a site characterization summary to EPA.
D. Draft Remedial Investigation Report [See Task III of the
attached Statement of Work.] Within days of receipt,
respondent(s) shall submit a draft remedial investigation report
consistent with the Statement of Work, work plan, sampling and
analysis plan. If EPA disapproves of or requires revisions to
the remedial investigation report, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised remedial
investigation report which is responsive to the directions in all
EPA comments, within days of receiving EPA's comments.
E. Task IV; Treatability Studies. Respondent(s) shall conduct
treatability studies, except where Respondent(s) can demonstrate
to EPA's satisfaction that they are not needed. Major components
of the treatability studies include determination of the need for
and scope of studies, the design of the studies, and the
completion of the studies, as described in the Statement of Work.
During treatability studies, Respondent(s) shall provide
EPA with the following deliverables:
1.Identification of Candidate Technologies Memorandum.
This memorandum shall be submitted within days of
-------
Annotated OSWER Directive Number 9835.3-2A
the effective date of this Order. If EPA disapproves
of or requires revisions to the technical memorandum
identifying candidate technologies, in whole or in
part, Respondent(s) shall amend and submit to EPA a
revised technical memorandum identifying candidate
technologies which is responsive to the directions in
all EPA comments, within days of receiving EPA's
comments.
2. Treatabilitv Testing Statement of Work. If EPA
determines that treatability testing is required,
within days thereafter [°r as specified by EPA],
Respondent(s) shall submit a treatability testing
statement of work.
3. Treatabilitv Testing Work Plan. Within days
of submission of the treatability testing statement of
work, Respondent(s) shall submit a treatability testing
work plan, including a schedule. If EPA disapproves of
or requires revisions to the treatability testing work
plan, in whole or in part, Respondent(s) shall amend
and submit to EPA a revised treatability testing work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
4. Treatabilitv Study Sampling and Analysis Plan.
Within days of the identification of the need for a
separate or revised QAPP or FSP, Respondent(s) shall
submit a treatability study sampling and analysis plan.
If EPA disapproves of or requires revisions to the
treatability study sampling and analysis plan, in whole
or in part, Respondent(s) shall amend and submit to EPA
a revised treatability study sampling and analysis plan
which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
5. Treatabilitv Study Site Health and Safety Plan.
Within days of the identification of the need for a
revised health and safety plan, Respondent(s) shall
submit a treatability study site health and safety
plan.
6. Treatabilitv Study Evaluation Report. Within
days of completion of any treatability testing,
Respondent(s) shall submit a treatability study
evaluation report as provided in the Statement of Work
and work plan. If EPA disapproves of or requires
revisions to the treatability study report, in whole or
in part, Respondent(s) shall amend and submit to EPA a
revised treatability study report which is responsive
8
-------
Annotated OSWER Directive Number 9835,3-2A
to the directions in all EPA comments, within days
of receiving EPA's comments.
F. Task V; Development and Screening of Alternatives.
Respondent(s) shall develop an appropriate range of waste
management options that will be evaluated through the development
and screening of alternatives, as provided in the Statement of
Work and work plan. During the development and screening of
alternatives, Respondent(s) shall provide EPA with the following
deliverables:
1. Memorandum on Remedial Action Objectives. Within
days of receipt of EPA's baseline risk assessment,
Respondent(s) shall submit a memorandum on remedial action
objectives.
2. Memorandum on Development and Preliminary Screening of
Alternatives. Assembled Alternatives Screening Results and
Final Screening. Within _^_ days of submittal of the
memorandum on remedial action objectives, Respondent(s)
shall submit a memorandum summarizing the development and
screening of remedial alternatives, including an
alternatives array document as described in the Statement of
Work.
G. Task VI; Detailed Analysis of Alternatives. Respondent(s)
shall conduct a detailed analysis of remedial alternatives, as
described in the Statement of Work and work plan. During the
detailed analysis of alternatives, Respondent(s) shall provide
EPA with the following deliverables and presentation:
1. Report on Comparative Analysis and Presentation to EPA.
Within days of submission of a memorandum on the
development and screening of remedial alternatives,
Respondent(s) shall submit a report on comparative analysis
to EPA summarizing the results of the comparative analysis
performed between the remedial alternatives. If EPA
disapproves of or requires revisions to the report on
comparative analysis, Respondent(s) shall amend and submit
to EPA a revised report on comparative analysis which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments. Within two weeks of
submitting the original report on comparative analysis,
Respondent(s) shall make a presentation to EPA during which
Respondent(s) shall summarize the findings of the remedial
investigation and remedial action objectives, and present
the results of the nine criteria evaluation and comparative
analysis, as described in the Statement of Work.
-------
Annotated OSWER Directive Number 9835.3-2A
2. Draft Feasibility Study Report. Within days of
the presentation to EPA, Respondent(s) shall submit a
draft feasibility study report which reflects the
findings in EPA's baseline risk assessment.
Respondent(s) shall refer to Table 6-5 of the RI/FS
Guidance for report content and format. If EPA
disapproves of or requires revisions to the draft
feasibility study report in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
feasibility study report which is responsive to the
directions in all EPA comments, within days of
receiving EPA's comments. The report as amended, and
the administrative record, shall provide the basis for
the proposed plan under CERCLA §§ 113(k) and 117(a) by
EPA, and shall document the development and analysis of
remedial alternatives.
25. EPA reserves the right to comment on, modify and direct
changes for all deliverables. At EPA's discretion, Respondent(s)
must fully correct all deficiencies and incorporate and integrate
all information and comments supplied by EPA either in subsequent
or resubmitted deliverables.
26. Respondent(s) shall not proceed further with any
subsequent activities or tasks until receiving EPA approval for
the following deliverables: RI/FS work plan and sampling and
analysis plan, draft remedial investigation report, treatability
testing work plan and sampling and analysis plan, [delete any of
the foregoing not required as a deliverable] and draft
feasibility study report. While awaiting EPA approval on these
deliverables, Respondent(s) shall proceed with all other tasks
and activities which may be conducted independently of these
deliverables, in accordance with the schedule set forth in this
Consent Order.
27. Upon receipt of the draft FS report, EPA will evaluate,
as necessary, the estimates of the risk to the public and
environment that are expected to remain after a particular
remedial alternative has been completed.
28. For all remaining deliverables not enumerated above in
paragraph 26, Respondent(s) shall proceed with all subsequent
tasks, activities and deliverables without awaiting EPA approval
on the submitted deliverable. EPA reserves the right to stop
Respondent(s) from proceeding further, either temporarily or
permanently, on any task, activity or deliverable at any point
during the RI/FS.
29. In the event that Respondent(s) amends or revises a
report, plan or other submittal upon receipt of EPA comments, if
10
-------
Annotated OSWER Directive Number 9835.3-2A
EPA subsequently disapproves of the revised submittal, or if
subsequent submittals do not fully reflect EPA's directions for
chanqes, EPA retains the right to seek stipulated or statutory
penalties; perform its own studies, complete the RI/FS (or any
portion of the RI/FS) under CERCLA and the NCP, and seek
reimbursement from the Respondent(s) for its costs; and/or seek
any other appropriate relief.
30. In the event that EPA takes over some of the tasks, but
not the preparation of the RI/FS, Respondent(s) shall incorporate
and integrate information supplied by EPA into the final RI/FS
report.
31. Neither failure of EPA to expressly approve or
disapprove of Respondent(s)' submissions within a specified time
period(s), nor the absence of comments, shall be construed as
approval by EPA. Whether or not EPA gives express approval for
Respondent(s)' deliverables, Respondent(s) is responsible for
preparing deliverables acceptable to EPA.
32. Respondent(s) shall, prior to any off-site shipment of
hazardous substances from the site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving state
and to EPA's Designated Project Coordinator of such shipment of
hazardous substances. However, the notification of shipments
shall not apply to any such off-site shipments when the total
volume of such shipments will not exceed 10 cubic yards.
(a) The notification shall be in writing, and shall include
the following information, where available: (1) the name and
location of the facility to which the hazardous substances are to
be shipped; (2) the type and quantity of the hazardous substances
to be shipped; (3) the expected schedule for the shipment of the
hazardous substances; and (4) the method of transportation.
Respondent(s) shall notify the receiving state of major changes
in the shipment plan, such as a decision to ship the hazardous
substances to another facility within the same state, or to a
facility in another state.
(b) The identity of the receiving facility and state will
be determined by Respondent(s) following the award of the
contract for the remedial investigation and feasibility study.
Respondent(s) shall provide all relevant information, including
information under the categories noted in paragraph 31(a) above,
on the off-site shipments, as soon as practical after the award
of the contract and before the hazardous substances are actually
shipped.
11
-------
Annotated OSWER Directive Number 9835.3-2A
IX. EPA'S BASELINE RISK ASSESSMENT
33. EPA will perform the baseline risk assessment.
Respondent shall support EPA in the effort by providing various
information to EPA as outlined above. The major components of
the baseline risk assessment include contaminant identification,
exposure assessment, toxicity assessment, and human health and
ecological risk characterization.
EPA will provide, after review of the respondent's site char-
acterization summary, sufficient information concerning the
baseline risks such that the respondents can begin drafting the
feasibility study report and the Memorandum on Remedial Action
Objectives. This information will normally be in the form of two
or more baseline risk assessment memoranda prepared by EPA. One
memorandum will generally include a list of the chemicals of
concern for human health and ecological effects and the
corresponding toxicity values. Another should list the current
and potential future exposure scenarios, exposure assumptions,
and exposure point concentrations that EPA plans to use in the
baseline risk assessment. The public, including the potentially
responsible parties, may comment on these memoranda. However,
the Agency is obligated to respond only to significant comments
that are submitted during the formal public comment period.
After considering any significant comments received, EPA will
prepare a baseline risk assessment report based on the data
collected by the respondents during the site character-
ization. EPA will release this report to the public at the same
time it releases the final RI report. Both reports will be put
into the Administrative Record for the site.
EPA will respond to all significant comments on the memoranda or
the baseline risk assessment that are resubmitted during the
formal comment period in the Responsiveness Summary of the Record
of Decision.
X. MODIFICATION OF THE WORK PLAN
34. If at any time during the RI/FS process, Respondent(s)
identifies a need for additional data, a memorandum documenting
the need for additional data shall be submitted to the EPA
Project Coordinator within 20 days of identification. EPA in its
discretion will determine whether the additional data will be
collected by Respondent(s) and whether it will be incorporated
into reports and deliverables.
35. In the event of conditions posing an immediate threat
to human health or welfare or the environment, Respondent(s)
shall notify EPA and the state immediately. In the event of
12
-------
Annotated OSWER Directive Number 9835.3-2A
unanticipated or changed circumstances at the site, Respondent(s)
shall notify the EPA Project Coordinator by telephone within 24
hours of discovery of the unanticipated or changed circumstances.
In addition to the authorities in the NCP, in the event that EPA
determines that the immediate threat or the unanticipated or
changed circumstances warrant changes in the work plan, EPA shall
modify or amend the work plan in writing accordingly.
Respondent(s) shall perform the work plan as modified or amended.
36. EPA may determine that in addition to tasks defined in
the initially approved work plan, other additional work may be
necessary to accomplish the objectives of the RI/FS as set forth
in the Statement of Work for this RI/FS. EPA may require that
the Respondent(s) perform these response actions in addition to
those required by the initially approved work plan, including any
approved modifications, if it determines that such actions are
necessary for a complete RI/FS. Respondent(s) shall confirm its
willingness to perform the additional work in writing to EPA
within 7 days of receipt of the EPA request or Respondent(s)
shall invoke dispute resolution. Subject to EPA resolution of
any dispute, Respondent(s) shall implement the additional tasks
which EPA determines are necessary. The additional work shall be
completed according to the standards, specifications, and
schedule set forth or approved by EPA in a written modification
to the work plan or written work plan supplement. EPA reserves
the right to conduct the work.itself at any point, to seek
reimbursement from Respondent(s), and/or to seek any other
appropriate relief.
XI. QUALITY ASSURANCE
37. Respondent(s) shall assure that work performed, samples
taken and analyses conducted conform to the requirements of the
Statement of Work, the QAPP and guidances identified therein.
Respondent(s) will assure that field personnel used by
Respondent(s) are properly trained in the use of field equipment
and in chain of custody procedures.
XII. FINAL RI/FS. PROPOSED PLAN. PUBLIC COMMENT.
RECORD OF DECISION. ADMINISTRATIVE RECORD
38. EPA retains the responsibility for the release to the
public of the RI/FS report. EPA retains responsibility for the
preparation and release to the public of the proposed plan and
record of decision in accordance with CERCLA and the NCP.
39. EPA shall provide Respondent(s) with the final RI/FS
report, proposed plan and record of decision.
13
-------
Annotated OSWER Directive Number 9835.3-2A
40. EPA will determine the contents of the administrative
record file for selection of the remedial action. Respondent(s)
must submit to EPA documents developed during the course of the
RI/FS upon which selection of the response action may be based.
Respondent(s) shall provide copies of plans, task memoranda
including documentation of field modifications, recommendations
for further action, quality assurance memoranda and audits, raw
data, field notes, laboratory analytical reports and other
reports. Respondent(s) must additionally submit any previous
studies conducted under state, local or other federal authorities
relating to selection of the response action, and all
communications between Respondent(s) and state, local or other
federal authorities concerning selection of the response action.
At EPA's discretion, Respondent(s) may establish a community
information repository at or near the site, to house one copy of
the administrative record.
XIII. PROGRESS REPORTS AND MEETINGS
41. Respondent(s) shall make presentations at, and
participate in, meetings at the request of EPA during the
initiation, conduct, and completion of the RI/FS. In addition to
discussion of the technical aspects of the RI/FS, topics will
include anticipated problems or new issues. Meetings will be
scheduled at EPA's discretion.
42. In addition to the deliverables set forth in this
Order, Respondent(s) shall provide to EPA monthly progress
reports by the 10th day of the following month. At a minimum,
with respect to the preceding month, these progress reports shall
(1) describe the actions which have been taken to comply with
this Consent Order during that month, (2) include all results of
sampling and tests and all other data received by the
Respondent(s) , (3) describe work planned for the next two months
with schedules relating such work to the overall project schedule
for RI/FS completion and (4) describe all problems encountered
and any anticipated problems, any actual or anticipated delays,
and solutions developed and implemented to address any actual or
anticipated problems or delays.
XIV. SAMPLING. ACCESS. AND DATA AVAILABILITY/ADMISSIBILITY
43. All results of sampling, tests, modeling or other data
(including raw data) generated by Respondent(s), or on
Respondent(s)' behalf, during implementation of this Consent
Order, shall be submitted to EPA in the subsequent monthly
progress report as described in Section XII of this Order. EPA
will make available to the Respondent(s) validated data generated
by EPA unless it is exempt from disclosure by any federal or
state law or regulation.
14
-------
Annotated OSWER Directive Number 9835.3-2A
44. Respondent(s) will verbally notify EPA at least 15 days
prior to conducting significant field events as described in the
Statement of Work, work plan or sampling and analysis plan. At
EPA's verbal or written request, or the request of EPA's
oversight assistant, Respondent(s) shall allow split or duplicate
samples to be taken by EPA (and its authorized representatives)
of any samples collected by the Respondent(s) in implementing
this Consent Order. All split samples of Respondent(s) shall be
analyzed by the methods identified in the QAPP.
45. At all reasonable times, EPA and its authorized
representatives shall have the authority to enter and freely move
about all property at the site and off-site areas where work, if
any, is being performed, for the purposes of inspecting
conditions, activities, the results of activities, records,
operating logs, and contracts related to the site or
Respondent(s) and its contractor pursuant to this Order;
reviewing the progress of the Respondent(s) in carrying out the
terms of this Consent Order; conducting tests as EPA or its
authorized representatives deem necessary; using a camera, sound
recording device or other documentary type equipment; and
verifying the data submitted to EPA by the Respondent(s). The
Respondent(s) shall allow these persons to inspect and copy all
records, files, photographs, documents, sampling and monitoring
data, and other writings related to work undertaken in carrying
out this Consent Order. Nothing herein shall be interpreted as
limiting or affecting EPA's right of entry or inspection
authority under federal law. All parties with access to the site
under this paragraph shall comply with all approved health and
safety plans.
46. The Respondent(s) may assert a claim of business
confidentiality covering part or all of the information submitted
to EPA pursuant to the terms of this Consent Order under 40
C.F.R. §2.203, provided such claim is allowed by section
104(e)(7) of CERCLA, 42 U.S.C. §9604(e)(7). This claim shall be
asserted in the manner described by 40 C.F.R. §2.203(b) and
substantiated at the time the claim is made, information
determined to be confidential by EPA will be given the protection
specified in 40 C.F.R. Part 2. If no such claim accompanies the
information when it is submitted to EPA, it may be made available
to the public by EPA or the state without further notice to the
Respondent(s). Respondent(s) agrees not to assert
confidentiality claims with respect to any data related to site
conditions, sampling, or monitoring.
47. In entering into this Order, Respondent(s) waives any
objections to any data gathered, generated, or evaluated by EPA,
the state or Respondent(s) in the performance or oversight of the
work that has been verified according to the quality
15
-------
Annotated OSWER Directive Number 9835.3-2A
assurance/quality control (QA/QC) procedures required by the
Consent Order or any EPA-approved work plans or sampling and
analysis plans. If Respondent(s) objects to any other data
relating to the RI/FS, Respondent(s) shall submit to EPA a report
that identifies and explains its objections, describes the
acceptable uses of the data, if any, and identifies any
limitations to the use of the data. The report must be submitted
to EPA within 15 days of the monthly progress report containing
the data.
48. If the site, or the off-site area that is to be used
for access or is within the scope of the RI/FS, is owned in whole
or in part by parties other than those bound by this Consent
Order, Respondent(s) will obtain, or use its best efforts to
obtain, site access agreements from the present owner(s) within
days of the effective date of this Consent Order. Such
agreements shall provide access for EPA, its contractors and
oversight officials, the state and its contractors, and the
Respondent(s) or its authorized representatives, and such
agreements shall specify that Respondent(s) is not EPA's
representative with respect to liability associated with site
activities. Copies of such agreements shall be provided to EPA
prior to Respondent(s)' initiation of field activities.
Respondent(s)' best efforts shall include providing reasonable
compensation to any off-site property owner. If access
agreements are not obtained within the time referenced above,
Respondent(s) shall immediately notify EPA of its failure to
obtain access. EPA may obtain access for the Respondent(s),
perform those tasks or activities with EPA contractors, or
terminate the Consent Order in the event that Respondent(s)
cannot obtain access agreements. In the event that EPA performs
those tasks or activities with EPA contractors and does not
terminate the Consent Order, Respondent(s) shall perform all
other activities not requiring access to that site, and shall
reimburse EPA for all costs incurred in performing such
activities. Respondent(s) additionally shall integrate the
results of any such tasks undertaken by EPA into its reports and
deliverables. Furthermore, the Respondent(s) agrees to indemnify
the U.S. Government as specified in Section XXV of this Order.
Respondent(s) also shall reimburse EPA for all costs and attorney
fees incurred by the United States to obtain access for the
Respondent(s) pursuant to paragraph 70.
XV. DESIGNATED PROJECT COORDINATORS
49. Documents including reports, approvals, disapprovals,
and other correspondence which must be submitted under this
Consent Order, shall be sent by certified mail, return receipt
requested, to the following addressees or to any other addressees
which the Respondent(s) and EPA designate in writing:
16
-------
Annotated OSWER Directive Number 9835.3-2A
(a) Documents to be submitted to EPA should be sent to
[indicate number of copies]:
[EPA Project Coordinator,
CERCLA Branch]
US EPA, Region [#],
[Street, City, State, Zip Code].
(b) Documents to be submitted to the Respondent(s) should
be sent to [include number of copies]:
[Name, Title,
Organization,
Street, City, State, Zip Code].
50. On or before the effective date of this Consent Order,
EPA and the Respondent(s) shall each designate their own Project
Coordinator. Each Project Coordinator shall be responsible for
overseeing the implementation of this Consent Order. To the
maximum extent possible, communications between the Respondent(s)
and EPA shall be directed to the Project Coordinator by mail,
with copies to such other persons as EPA, the state, and
Respondent(s) may respectively designate. Communications
include, but are not limited to, all documents, reports,
approvals, and other correspondence submitted under this Consent
Order.
51. EPA and the Respondent(s) each have the right to change
their respective Project Coordinator. The other party must be
notified in writing at least 10 days prior to the change.
52. EPA's Project Coordinator shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and On-Scene
Coordinator (OSC) by the NCP. In addition, EPA's Project
Coordinator shall have the authority consistent with the National
Contingency Plan, to halt any work required by this Consent
Order, and to take any necessary response action when s/he
determines that conditions at the site may present an immediate
endangerment to public health or welfare or the environment. The
absence of the EPA Project Coordinator from the area under study
pursuant to this Consent Order shall not be cause for the
stoppage or delay of work.
53. EPA shall arrange for a qualified person to assist in
its oversight and review of the conduct of the RI/FS, as required
by section 104(a) of CERCLA, 42 U.S.C. S9604(a). The oversight
assistant may observe work and make inquiries in the absence of
EPA, but is not authorized to modify the work plan.
17
-------
Annotated OSWER Directive Number 9835.3-2A
XVI. OTHER APPLICABLE LAWS
54. Respondent(s) shall comply with all laws that are
applicable when performing the RI/FS. No local, state, or
federal permit shall be required for any portion of any action
conducted entirely on-site, including studies, where such action
is selected and carried out in compliance with section 121 of
CERCLA.
XVII. RECORD PRESERVATION
55. All records and documents in EPA's and Respondent's
possession that relate in any way to the site shall be preserved
during the conduct cf this Consent Order and for a minimum of 10
years after commencement of construction of any remedial action.
The Respondent(s) shall acquire and retain copies of all
documents that relate to the site and are in the possession of
its employees, agents, accountants, contractors, or attorneys.
After this 10 year period, the Respondent(s) shall notify EPA at
least 90 days before the documents are scheduled to be destroyed.
If EPA requests that the documents be saved, the Respondent(s)
shall, at no cost to EPA, give EPA the documents or copies of the
documents.
XVIII. DISPUTE RESOLUTION
56. Any disputes concerning activities or deliverables
required under this Order, excluding the baseline risk
assessment, for which dispute resolution has been expressly
provided for, shall be resolved as follows: If the Respondent(s)
objects to any EPA notice of disapproval or requirement made
pursuant to this Consent Order, Respondent(s) shall notify EPA's
Project Coordinator in writing of its objections within 14 days
of receipt of the disapproval notice or requirement.
Respondent(s)' written objections shall define the dispute, state
the basis of Respondent(s)' objections, and be sent certified
mail, return receipt requested. EPA and the Respondent(s) then
have an additional 14 days to reach agreement. If an agreement
is not reached within 14 days, Respondent may request a
determination by EPA's [Branch Chief/Division Director]. The
[Branch Chief's/Division Director's] determination is EPA's final
decision. Respondent(s) shall proceed in accordance with EPA's
final decision regarding the matter in dispute, regardless of
whether Respondent(s) agrees with the decision. If the
Respondent(s) does not agree to perform or does not actually
perform the work in accordance with EPA's final decision, EPA
reserves the right in its sole discretion to conduct the work
itself, to seek reimbursement from the Respondent(s), to seek
enforcement of the decision, to seek stipulated penalties, and/or
to seek any other appropriate relief.
18
-------
Annotated OSWER Directive Number 9835.3-2A
57. Respondent(s) is not relieved of its obligations to
perform and conduct activities and submit deliverables on the
schedule set forth in the work plan, while a matter is pending in
dispute resolution. The invocation of dispute resolution does
not stay stipulated penalties under this Order.
XIX. DELAY IN PERFORMANCE/STIPULATED PENALTIES
58. For each day that the Respondent(s) fails to complete a
deliverable in a timely manner or fails to produce a deliverable
of acceptable quality, or otherwise fails to perform in
accordance with the requirements of this Order, Respondent(s)
shall be liable for stipulated penalties. Penalties begin to
accrue on the day that performance is due or a violation occurs,
and extend through the period of correction. Where a revised
submission by Respondent(s) is required, stipulated penalties
shall continue to accrue until a satisfactory deliverable is
produced. EPA will provide written notice for violations that
are not based on timeliness; nevertheless, penalties shall accrue
from the day a violation commences. Payment shall be due within
30 days of receipt of a demand letter from EPA.
59. Respondents shall pay interest on the unpaid balance,
which shall begin to accrue at the end of the 30-day period, at
the rate established by the Department of Treasury pursuant to 30
U.S.C. §3717. Respondents shall further pay a handling charge of
1 percent, to be assessed at the end of each 31 day period, and a
6 percent per annum penalty charge, to be assessed if the penalty
is not paid in full within 90 days after it is due.
60. Respondent(s) shall make all payments by forwarding a
check to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
Checks should identify the name of the site, the site
identification number, the account number, and the title of this
Order. A copy of the check and/or transmittal letter shall be
forwarded to the EPA Project Coordinator.
61. For the following major deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first seven days of noncompliance; per
day, per violation, for the 8th through 14th day of
noncompliance; per day, per violation, for the 15th day
through the 30th day; and per day per violation for all
violations lasting beyond 30 days.
19
-------
Annotated OSWER Directive Number 9835.3-2A
1) An original and any revised work plan.
2) An original and any revised sampling and analysis plan.
3) An original and any revised remedial investigation
report.
4) An original and any revised treatability testing work
plan.
5) An original and any revised treatability study sampling
and analysis plan.
6) An original and any revised feasibility study report.
62. For the following interim deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first week of noncompliance; per day, per
violation, for the 8th through 14th day of noncompliance;
per day, per violation, for the 15th day through the 30th day of
noncompliance; and per day per violation for all violations
lasting beyond 30 days.
1) Technical memorandum on modeling of site
characteristics.
2) Preliminary site characterization summary.
3) Summary of RI data (electronically formatted),
4) Identification of candidate technologies memorandum.
5) Treatability testing statement of work.
6) Treatability study evaluation report.
7) Memorandum on remedial action objectives.
8) Memoranda on development and preliminary screening of
alternatives, assembled alternatives screening
results, and final screening.
9) Comparative analysis report.
63. For the monthly progress reports, stipulated penalties
shall accrue in the amount of per day, per violation, for
the first week of noncompliance; per day, per violation, for
the 8th through 14th day of noncompliance; per day, per
violation, for the 15th day through the 30th day; and per
day, per violation, for all violations lasting beyond 30 days.
20
-------
Annotated OSWER Directive Number 9835.3-2A
64. Respondent(s) may dispute EPA's right to the stated
amount of penalties by invoking the dispute resolution procedures
under Section XVII herein. Penalties shall accrue but need not
be paid during the dispute resolution period. If Respondent(s)
do not prevail upon resolution, all penalties shall be due to EPA
within 30 days of resolution of the dispute. If Respondent(s)
prevails upon resolution, no penalties shall be paid.
65. In the event that EPA provides for corrections to be
reflected in the next deliverable and does not require
resubmission of that deliverable, stipulated penalties for that
interim deliverable shall cease to accrue on the date of such
decision by EPA.
66. The stipulated penalties provisions do not preclude EPA
from pursuing any other remedies or sanctions which are available
to EPA because of the Respondent(s)' failure to comply with this
Consent Order, including but not limited to conduct of all or
part of the RI/FS by EPA. Payment of stipulated penalties does
not alter Respondent(s)' obligation to complete performance under
this Consent Order.
XX. FORCE MAJEURE
67. "Force majeure", for purposes of this Consent Order, is
defined as any event arising from causes entirely beyond the
control of the Respondent(s) and of any entity controlled by
Respondent(s), including their contractors and subcontractors,
that delays the timely performance of any obligation under this
Consent Order notwithstanding Respondent(s)' best efforts to
avoid the delay. The requirement that the Respondent(s) exercise
"best efforts to avoid the delay" includes using best efforts to
anticipate any potential force majeure event and best efforts to
address the effects of any potential force majeure event (1) as
it is occurring and (2) following the potential force majeure
event, such that the delay is minimized to the greatest extent
practicable. Examples of events that are not force majeure
events include, but are not limited to, increased costs or
expenses of any work to be performed under this Order or the
financial difficulty of Respondent(s) to perform such work.
68. If any event occurs or has occurred that may delay the
performance of any obligation under this Order, whether or not
caused by a force majeure event, Respondent(s) shall notify by
telephone the Remedial Project Manager or, in his or her absence,
the Director of the Hazardous Waste Management Division, EPA
Region , within 48 hours of when the Respondent(s) knew or
should have known that the event might cause a delay. Within
five business days thereafter, Respondent(s) shall provide in
writing the reasons for the delay; the anticipated duration of
21
-------
Annotated OSWER Directive Number 9835.3-2A
the delay; all actions taken or to be taken to prevent or
minimize the delay; a schedule for implementation of any measures
to be taken to mitigate the effect of the delay; and a statement
as to whether, in the opinion of Respondent(s), such event may
cause or contribute to an endangerment to public health, welfare
or the environment. Respondent(s) shall exercise best efforts to
avoid or minimize any delay and any effects of a delay. Failure
to comply with the above requirements shall preclude
Respondent(s) from asserting any claim of force majeure.
69. If EPA agrees that the delay or anticipated delay is
attributable to force majeure, the time for performance of the
obligations under this Order that are directly affected by the
force majeure event shall be extended by agreement of the
parties, pursuant to section XXVI of this Order, for a period of
time not to exceed the actual duration of the delay caused by the
force majeure event. An extension of the time for performance of
the obligation directly affected by the force majeure event shall
not, of itself, extend the time for performance of any subsequent
obligation.
70. If EPA does not agree that the delay or anticipated
delay has been ..or will be caused by a force majeure event, or
does not agree with Respondent(s) on the length of the extension,
the issue shall be subject to the dispute resolution procedures
set forth in section XVII of this Order. In any such proceeding,
to qualify for a force majeure defense, Respondent(s) shall have
the burden of demonstrating by a preponderance of the evidence
that the delay or anticipated delay has been or will be caused by
a force majeure event, that the duration of the delay was or will
be warranted under the circumstances, that Respondent(s) did
exercise or is exercising due diligence by using its best efforts
to avoid and mitigate the effects of the delay, and that
Respondent(s) complied with the requirements of paragraph 66.
71. Should Respondent(s) carry the burden set forth in
paragraph 65, the delay at issue shall be deemed not to be a
violation of the affected obligation of this Consent Order.
XXI. REIMBURSEMENT OF PAST COSTS
[Note that the Agency cannot compromise past costs unless the
consent order is also issued under §122(h)(l), and the
requirements of §122(h)(l) are also met, i.e., prior written
approval of the Attorney General is obtained if the total past
and projected response costs exceed $500,000, excluding
interest.]
72. Within 15 days of the effective date of this Order,
Respondent(s) shall remit a certified or cashiers check to EPA in
22
-------
Annotated OSWER Directive Number 9835.3-2A
the amount of $ , as previously demanded in the RI/FS Special
Notice Letter dated , together with interest that has
accrued thereon at the rate of interest specified for the
Hazardous Substances Superfund under CERCLA section 107(a), for
all past response costs incurred by the United States in its
[e.g., conduct of the removal action] at the site from
[date] to [date].
73. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the operable unit, if any, the
Regional Lock Box Number account number and the title of this
Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
74. A copy of the check should be sent simultaneously to
the EPA Project Coordinator.
XXII. REIMBURSEMENT OF RESPONSE AND OVERSIGHT COSTS
75. Following the issuance of this Consent Order, EPA shall
submit to the Respondent(s) on a periodic basis an accounting of
all response costs including oversight costs incurred by the U.S.
Government with respect to this RI/FS. Response costs may
include, but are not limited to, costs incurred by the U.S.
Government in overseeing Respondent(s)' implementation of the
requirements of this Order and activities performed by the
government as part of the RI/FS and community relations,
including any costs incurred while obtaining access. Costs shall
include all direct and indirect costs, including, but not limited
to, time and travel costs of EPA personnel and associated
indirect costs, contractor costs, cooperative agreement costs,
compliance monitoring, including the collection and analysis of
split samples, inspection of RI/FS activities, site visits,
discussions regarding disputes that may arise as a result of this
Consent Order, review and approval or disapproval of reports,
costs of performing the baseline risk assessment, and costs of
redoing any of Respondent(s)' tasks. Any necessary summaries,
including, but not limited to EPA's certified Agency Financial
Management System summary data (SPUR Reports), or such other
summary as certified by EPA, shall serve as basis for payment
demands.
76. Respondent(s) shall, within 30 days of receipt of each
accounting, remit a certified or cashier's check for the amount
of those costs. Interest shall accrue from the later of: the
date payment of a specified amount is demanded in writing; or the
23
-------
Annotated OSWER Directive Number 9835.3-2A
date of the expenditure. The interest rate is the rate of
interest on investments for the Hazardous Substances Superfund in
section 107(a) of CERCLA.
77. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the account number and the title of
this Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
78. Copies of the transmittal letter and check should be
sent simultaneously to the EPA Project Coordinator.
79. Respondent(s) agrees to limit any disputes concerning
costs to accounting errors and the inclusion of costs outside the
scope of this Consent Order. Respondent(s) shall identify any
contested costs and the basis of its objection. All undisputed
costs shall be remitted by Respondent(s) in accordance with the
schedule set forth above. Disputed costs shall be paid by
Respondent(s) into an escrow account while the dispute is
pending. Respondent(s) bears the burden of establishing an EPA
accounting error or the inclusion of costs outside the scope of
this Consent Order.
XXIII. RESERVATIONS OF RIGHTS AND REIMBURSEMENT OF OTHER COSTS
80. EPA reserves the right to bring an action against the
Respondent(s) under section 107 of CERCLA for recovery of all
response costs including oversight costs, incurred by the United
States at the site that are not reimbursed by the Respondent(s),
any costs incurred in the event that EPA performs the RI/FS or
any part thereof, and any future costs incurred by the United
States in connection with response activities conducted under
CERCLA at this site.
81. EPA reserves the right to bring an action against
Respondent(s) to enforce the past costs and response and
oversight cost reimbursement requirements of this Consent Order,
to collect stipulated penalties assessed pursuant to section
XVIII of this Consent Order, and to seek penalties pursuant to
section 109 of CERCLA, 42 U.S.C. §9609.
82. Except as expressly provided in this Order, each party
reserves all rights and defenses it may have. Nothing in this
Consent Order shall affect EPA's removal authority or EPA's
response or enforcement authorities including, but not limited
24
-------
Annotated OSWER Directive Number 9835.3-2A
to, the right to seek injunctive relief, stipulated penalties,
statutory penalties, and/or punitive damages.
83. Following satisfaction of the requirements of this
Consent Order, Respondent(s) shall have resolved its liability to
EPA for the work performed by Respondent(s) pursuant to this
Consent Order. Respondent(s) is not released from liability, if
any, for any response actions taken beyond the scope of this
Order regarding removals, other operable units, remedial
design/remedial action of this operable unit, or activities
arising pursuant to section 121(c) of CERCLA.
XXIV. DISCLAIMER
84. By signing this Consent Order and taking actions under
this Order, the Respondent(s) does not necessarily agree with
EPA's Findings of Fact and Conclusions of Law. Furthermore, the
participation of the Respondent(s) in this Order shall not be
considered an admission of liability and is not admissible in
evidence against the Respondent(s) in any judicial or
administrative proceeding other than a proceeding by the United
States, including EPA, to enforce this Consent Order or a
judgment relating to it. Respondent(s) retains its rights to
assert claims against other potentially responsible parties at
the site. However, the Respondent(s) agrees not to contest the
validity or terms of this Order, or the procedures underlying or
relating to it in any action brought by the United States,
including EPA, to enforce its terms.
XXV. OTHER CLAIMS
85. In entering into this Order, Respondent(s) waives any
right to seek reimbursement under section 106(b) of CERCLA.
Respondent also waives any right to present a claim under section
111 or 112 of CERCLA. This Order does not constitute any
decision on preauthorization of funds under section 111(a)(2) of
CERCLA. Respondent(s) further waives all other statutory and
common law claims against EPA, including, but not limited to,
contribution and counterclaims, relating to or arising out of
conduct of the RI/FS.
86. Nothing in this Order shall constitute or be construed
as a release from any claim, cause of action or demand in law or
equity against any person, firm, partnership, subsidiary or
corporation not a signatory to this Consent Order for any
liability it may have arising out of or relating in any way to
the generation, storage, treatment, handling, transportation,
release, or disposal of any hazardous substances, pollutants, or
contaminants found at, taken to, or taken from the site.
25
-------
Annotated OSWER Directive Number 9835.3-2A
87. Respondent(s) shall bear its own costs and attorneys
fees.
XXVI. FINANCIAL ASSURANCE. INSURANCE. AND INDEMNIFICATION
88. Respondent(s) shall establish and maintain a financial
instrument or trust account or other financial mechanism
acceptable to EPA, funded sufficiently to perform the work and
any other obligations required under this Consent Order,
including a margin for cost overruns. Within 15 days after the
effective date of this Consent Order, Respondent(s) shall fund
the financial instrument or trust account sufficiently to perform
the work required under this Consent Order projected for the
period beginning with the effective date of the Order through
. Beginning , and on or before the 15th calendar
day of each calendar year quarter thereafter, Respondent(s) shall
fund the financial instrument or trust account sufficiently to
perform the work and other activities required under this Order
projected for the succeeding calendar year quarter.
89. If at any time the net worth of the financial
instrument or trust account is insufficient to perform the work
and other obligations under the Order for the upcoming quarter,
Respondent(s) shall provide written notice to EPA within 7 days
after the net worth of the financial instrument or trust account
becomes insufficient. The written notice shall describe why the
financial instrument or trust account is funded insufficiently
and explain what actions have been or will be taken to fund the
financial instrument or trust account adequately.
90. (a) Prior to commencement of any work under this
Order, Respondent(s) shall secure, and shall maintain in force
for the duration of this Order, and for two years after the
completion of all activities required by this Consent Order,
Comprehensive General Liability ("CGL") and automobile insurance,
with limits of $__ million dollars, combined single limit,
naming as insured the United States. The CGL insurance shall
include Contractual Liability Insurance in the amount of $
per occurrence, and Umbrella Liability Insurance in the amount of
$2 million per occurrence.
(b) Respondent(s) shall also secure, and maintain in
force for the duration of this Order and for two years after the
completion of all activities required by this Consent Order the
following:
i. Professional Errors and Omissions Insurance in
the amount of $1,000,000.00 per occurrence.
26
-------
Annotated OSWER Directive Number 9835.3-2A
ii. Pollution Liability Insurance in the amount of
$1,000,000.00 per occurrence, covering as
appropriate both general liability and
professional liability arising from pollution
conditions.
(c) For the duration of this Order, Respondent(s)
shall satisfy, or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations
regarding the provision of employer's liability insurance and
workmen's compensation insurance for all persons performing work
on behalf of the Respondent(s), in furtherance of this Order.
(d) If Respondent(s) demonstrates by evidence
satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or
insurance covering the same risks but in a lesser amount, then
with respect to that contractor or subcontractor Respondent(s)
need provide only that portion of the insurance described above
which is not maintained by the contractor or subcontractor.
(e) Prior to commencement of any work under this
Order, and annually thereafter on the anniversary of the
effective date of this Order, Respondent(s) shall provide to EPA
certificates of such insurance and a copy of each insurance
policy.
91. At least 7 days prior to commencing any work under this
Consent Order, Respondent(s) shall certify to EPA that the
required insurance has been obtained by that contractor.
92. The Respondent(s) agrees to indemnify and hold the
United States Government, its agencies, departments, agents, and
employees harmless from any and all claims or causes of action
arising from or on account of acts or omissions of Respondent(s) ,
its employees, agents, servants, receivers, successors, or
assignees, or any persons including, but not limited to, firms,
corporations, subsidiaries and contractors, in carrying out
activities under this Consent Order. The United States
Government or any agency or authorized representative thereof
shall not be held as a party to any contract entered into by
Respondent(s) in carrying out activities under this Consent
Order.
XXVII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
93. The effective date of this Consent Order shall be the
date it is signed by EPA.
27
-------
Annotated OSWER Directive Number 9835.3-2A
94. This Consent Order may be amended by mutual agreement
of EPA and Respondent(s). Amendments shall be in writing and
shall be effective when signed by EPA. EPA Project Coordinators
do not have the authority to sign amendments to the Consent
Order.
95. No informal advice, guidance, suggestions, or comments
by EPA regarding reports, plans, specifications, schedules, and
any other writing submitted by the Respondent(s) will be
construed as relieving the Respondent(s) of its obligation to
obtain such formal approval as may be required by this Order.
Any deliverables, plans, technical memoranda, reports (other than
progress reports), specifications, schedules and attachments
required by this Consent Order are, upon approval by EPA,
incorporated into this Order.
XXVIII. TERMINATION AND SATISFACTION
96. This Consent Order shall terminate when the
Respondent(s) demonstrates in writing and certifies to the
satisfaction of EPA that all activities required under this
Consent Order, including any additional work, payment of past
costs, response and oversight costs, and any stipulated penalties
demanded by EPA, have been .performed and EPA has approved the
certification. This notice shall not, however, terminate
Respondent(s)' obligation to comply with Sections XVI, XXI, and
XXII of this Consent Order.
97. The certification shall be signed by a responsible
official representing each Respondent. Each representative shall
make the following attestation: "I certify that the information
contained in or accompanying this certification is true,
accurate, and complete." For purposes of this Consent Order, a
responsible official is a corporate official who is in charge of
a principal business function.
BY: DATE:
(Respondent(s))Title
BY: DATE:
Regional Administrator [or Delegatee]
U.S. Environmental Protection Agency
28
-------
JNITED STATES EN . ;RONVENTAL ^ROTECTOM AGEN
3 1991
OSWER Directive #9834.6
MEMORANDUM
SUBJECT: Policy Towards Owners of Residential Property at
Superfund Sites
FROM: Don R. Clay _
Assistant Administrate!
Office of Solid Waste andf^Elifi'fgency Response
Raymond B. Ludwisz-ewski x^._*M
Acting Assistants Administrator
Office of Enforcement
TO: Regional Administrators, Regions I - X
This memorandum transmits to you the Agency's "Policy
Towards Owners of Residential Property at Superfund Sites."
The guidance sets forth the Agency's enforcement policy
towards owners of residential property located on a Superfund
site under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
This guidance has been developed jointly by the Office of
Solid Waste and Emergency Response and Office of Enforcement.
The guidance reflects input from the Regions, Office of General
Counsel and the Department of Justice. There have been several
drafts of this guidance and changes based on comments have been
incorporated. We thank, you for your assistance.
Attachment
cc: Director, Waste Management Division,
Regions I, IV, V, and VII
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division,
Regions I, VI, and VII
Regional Counsel, Regions I-X
-------
OSWER Directive #9834.6
POLICY TOWARDS OWNERS OF RESIDENTIAL PROPERTY
AT SUPERFUND SITES
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Office of Enforcement
Washington, D.C. 20460
-------
OSWER Directive #9834.6
I. INTRODUCTION
A. Purpose and Summary
This guidance describes EPA's policy for enforcement actions
to recover response costs or to require response actions under
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA or Superfund) as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA), with
respect to owners of residential property located on a Superfund
site.
Under this policy, EPA, in the exercise of its enforcement
discretion, will not take enforcement actions against an owner of
residential property to require such owner to undertake response
actions or pay response costs, unless the residential homeowner's
activities lead to a release or threat of release of hazardous
substances, resulting in the taking of a response action at the
site.1 This policy does not apply when an owner of residential
property fails to cooperate with the Agency's response actions or
with a state that is taking a response action under a cooperative
agreement with EPA pursuant to section 104(d)(l) of CERCLA. This
policy also does not apply where the owner of residential
property fails to meet other CERCLA obligations, or uses the
residential property in any manner inconsistent with residential
use.
EPA is issuing this policy to address concerns raised by
owners of residential property, and to provide a nationally
consistent approach on this issue.
B. Background
Several sites that are the subject of a response action
(removal or remedial activities) under CERCLA include properties
that are used exclusively as single family residences (one-to-
four dwelling units). At several larger sites, soil or ground
water contamination may be so extensive that there are several
hundred of these residential properties located on a Superfund
site.
Some owners of residential property located on a Superfund
site are concerned about potential liability for performance of a
response action or payment of cleanup costs because they may come
1 This policy does not provide an exemption from potential
CERCLA liability for any party; it is a statement of the Agency's
enforcement discretion. Liability is governed by Section 107 of
CERCLA.
-------
2 OSWER Directive #9834.6
within the definition of "owner" under the statute.2 Owners of
residential property located bn a Superfund site have expressed
the concern that they may be unable to sell these properties
because the buyer and the lending institution may also be
concerned about potential liability.
C. Past Agency Practice and Basis for Policy
In the past, the Agency has not required owners of
residential property located on a Superfund site to perform
response actions or pay response costs except where the
residential homeowners' activities lead to a release or threat of
a release of hazardous substances, resulting in the taking of a
response action at the site.3 Despite this general practice,
some owners of residential property have asked EPA for individual
assurances that the Agency not take an enforcement action against
them for performance of the response action or payment of
response costs. The Agency has not been able to provide
individual owners of residential property with assurances of no
enforcement action outside the framework of a legal settlement,
and this policy does not alter EPA's policy of not providing no
action assurances.4
This guidance instead constitutes a general statement of
policy regarding the Agency's exercise of enforcement discretion
with respect to owners of residential property located on a
Superfund site. The purpose of this policy is to continue the
Agency's past practice and to provide guidance for Agency
enforcement staff.
II. DEFINITION OF KEY TERMS
The following definitions are applicable for the limited
purposes of this policy, and do not represent the Agency's
interpretation of these or any similar or related statutory terms
in any context other than this policy:
2 Under section 107(a)(1) of CERCLA, a person is liable if
it is the owner or operator of a facility. 42 U.S.C. Section
9607(a)(l). Under section 101(9)(B) of CERCLA, a facility is
defined to include "any site or area where a hazardous
substance...has...come to be located." 42 U.S.C. Section
9601(9)(B).
3 The Agency has required owners of residential property to
provide access to the residential property in order to assess the
need for a response action or implement a response action, and to
otherwise cooperate with cleanup activities.
4 See "Policy Against No Action Assurances." (November 15,
1984).
-------
3 OSWER Directive #9834.6
o The term "owner of residential property," means a
person, as defined under section 101(21) of CERCLA, who
owns residential property located on a Superfund site,
and who uses or allows the use of the residential
property exclusively for residential purposes. The
term also includes owners who make improvements that
are consistent with residential use. Such term does
not include 1) any owner who has conducted or permitted
the generation, transportation, storage, treatment or
handling of hazardous substances on the residential
property other than in quantities and uses typical of
residential uses; 2) any owner who disposes of
hazardous substances on the residential property
resulting in the taking of a response action; and 3)
any owner who acquires or develops the residential
property for commercial use, or for any other use
inconsistent with residential use.
o The term "residential property," refers to single
family residences of one-to-four dwelling units,
including accessory land, buildings or improvements
incidental to such dwellings which are exclusively for
residential use.5
o The phrase "located on a Superfund site" means
properties that are within an area designated for
investigation or study under CERCLA, listed as a
Superfund site on the National Priorities List,
identified as the subject of planned or current removal
or remedial activities, where hazardous substances have
come to be located, or which are subject to or affected
by a removal or remedial action.
III. STATEMENT OF POLICY
In implementing CERCLA, EPA may use enforcement discretion
in pursuing potentially responsible parties (PRPs) for
enforcement actions. It is within the Agency's enforcement
discretion to identify appropriate PRPs to perform response
actions or pay response costs.6
In the exercise of its enforcement discretion, the Agency
5 EPA notes that this definition of "residential property"
is consistent with the designation for single family residences
under the National Housing Act, 12 U.S.C. Section 1701.
6 See generally. Heckler v. Chaney. 470 U.S. 821 (1985);
U.S. v. Helen Kramer, et al. No. 89-4340 (D.N.J. February 8,
1991).
-------
4 OSWER Directive #9834.6
has determined that it will not require owners of residential
property located on a Superfund site to perform a response action
or pay response costs if the owner's activities are consistent
with this policy. Under this policy, EPA's exercise of
enforcement discretion will extend to lessees of residential
property provided that the lessees' activities are consistent
with this policy. This policy also applies to persons who
acquire residential property through purchase, foreclosure, gift,
inheritance or other form of acquisition, as long as those
persons' activities after acquisition are consistent with this
policy.8
This policy does not apply to an owner of residential
property who has undertaken activities leading to a release or
threat of release of hazardous substances, resulting in the
taking of a response action at the site.9 In such situations,
the Agency would contemplate bringing an enforcement action
against the owner of the residential property to perform a
response action or to pay response costs. In addition, if an
owner of residential property located on a Superfund site
develops or improves the property in a manner inconsistent with
residential use, or the development of the residential property
leads to a release or threat of release of hazardous substances
resulting in the taking of a response action at the site, then
the owner would not be within the scope of this policy. Also, if
an owner of residential property fails to provide the Agency with
access to the residential property located on a Superfund site to
evaluate the need for a response action or to implement a
response action, or fails to comply with any other CERCLA
obligations, this policy would not apply.10
This exercise of enforcement discretion applies to owners of
residential property located on a Superfund site who purchased or
7 Consistent with the Agency's no action assurance policy
(see footnote 4), this policy does not require the Agency to make
prospective determinations of whether particular owners of
residential property meet the requirements of this policy.
8 If the Agency has perfected a federal lien on the
residential property prior to the acquisition by the new owner,
this policy does not affect the status of that lien.
9 The Agency's experience has been that in general,
activities which are undertaken consistent with single family
residential use do not lead to a release or threat of a release
of hazardous substances, resulting in a response action being
taken at a site.
10 See Section IV of this policy for a further discussion
of other CERCLA obligations.
-------
5 OSWER Directive #9834.6
sold the residential property in the past or who purchase or sell
the residential property after the issuance of this policy.
Whether an owner of residential property has or had knowledge or
reason to know that contamination was present on the site at the
time of purchase or sale of the residential property will not
affect EPA's exercise of enforcement discretion under this
policy.
This policy is not based on, and has no effect on, the
defenses to liability available to an owner of residential
property, or any other person, under section 107(b) of CERCLA.
This policy is not related to the "innocent landowner defense"
described in sections I07(b)(3) and 101(35) of CERCLA; it is
based entirely on EPA's enforcement discretion. Thus, the
ability of an owner of residential property to assert any defense
to liability is unaffected by this policy.
IV. OTHER CERCLA OBLIGATIONS
Although the Agency, in the exercise of its enforcement
discretion, will not require owners of residential property to
undertake or pay for response actions if the owners' activities
are consistent with this policy, to benefit from this policy an
owner of residential property must comply with other CERCLA
obligations.
To come within the scope of this policy, owners of
residential property must provide access to the residential
property when requested by EPA, or report information requested
by the Agency. In addition, owners of residential property
must cooperate with EPA and not interfere with any of the
Agency's activities on the residential property taken to respond
to the release or threat of release. Similarly, owners of
residential property must cooperate with and not interfere with
the activities of a state that is taking a response action under
a cooperative agreement with EPA pursuant to section 104(d)(l) of
CERCLA. Moreover, owners of residential property must comply
with institutional controls placed on their residential property
in order to facilitate performance of a response action and to
protect human health and the environment.12
11 The Agency has developed guidance which explains the
authorities and procedures by which EPA obtains access or
information. See OSWER Directive #9829.2, Entry and Continued
Access under CERCLA (June 5, 1987). See also OSWER Directive
#9834.4-A, Guidance on Use and Enforcement of CERCLA Information
Requests and Administrative Subpoenas (August 25, 1988).
12 Institutional controls are conditions or limitations
commonly placed on property by local or state authorities to
ensure that activities (e.g., excavation, construction or other
-------
6 OSWER Directive #9834.6
Nothing in this policy is intended to affect any other
obligations required of owners of residential property or any
other person under CERCLA or other federal, state and local
laws. EPA reserves its authority to obtain access and to
enjoin owners of residential property from interfering with
response actions, and to seek recovery of response costs if
bringing such actions becomes necessary.
This policy does not change the opportunities available to
owners of residential property located on a Superfund site to
participate in the response selection process. To the extent
such parties wish to receive individual notice of response
activities, EPA will provide individual notice of public
meetings, public comment periods or other public participation
activities to owners of residential property which are on the
Agency's community relations mailing list.14 The eligibility of
owners of residential property for Technical Assistance Grants
under CERCLA is also unaffected by this policy.
V. PURPOSE AND USE OF THIS GUIDANCE
This policy and any internal procedures adopted for its
implementation are intended exclusively as guidance for employees
of the U.S. Environmental Protection Agency. This guidance does
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 guidance or its internal
implementing procedures.
VI. FURTHER INFORMATION
For further information concerning this policy, please
contact Gary Worthman in the Office of Waste Programs Enforcement
at FTS (202) 382-5646, or Patricia Mott in the Office of
Enforcement at FTS (202) 245-3733.
similar activity) undertaken by the owner of residential property
do not exacerbate the conditions at the site, in some way
diminish the effectiveness of a remedy which has been or is being
implemented, or otherwise present a threat to human health or the
environment.
13 For example, if the owner of residential property has
knowledge that a release has taken place on the residential
property, the owner must notify appropriate authorities.
14 For each site the Community Relations Coordinator in
each Region maintains a community relations mailing list.
-------
«s>
\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
HPR2 1992
OSWER Directive # 9835.4-2b
MEMORANDUM
SUBJECT: Accelerating Potentially Responsible Party Remedial
Design Starts: Implement-ingthe~3 0-Day Study
PROM: Bruce M. Diamond, Directc
Office of Waste Programs Enforcement
William A. nXh.&&7*Erff«r<*2ment Counsel for Superfund
Office of Enforcement
TO: Waste Management Division Directors, Regions I-X
Regional Counsel, Regions I-X
This memorandum implements a recommendation of the 30-day
study concerning accelerating Remedial Design starts.
SUMMARY OF POLICY
Regions should use all available opportunities to gain
potentially responsible party (PRP) commitment to start the
Remedial Design (RD) as soon as possible after signature of a
Record of Decision (ROD).
At a minimum, when a Region negotiates a Remedial
Design/Remedial Action- (RD/RA) consent decree with a PRP, the
Region should make every effort to secure PRP performance of the
RD no later than upon lodging of a consent decree in federal
district court. Regions should use the model language for this
provision, as set forth in Section VI of the Model Consent Decree
for RD/RA.
Regions are strongly encouraged to use other strategies to
start PRP-lead Rds prior to consent decree lodging. Examples
include: amendment of a remedial investigation/feasibility study
(RI/FS) consent order, negotiation of an RD consent order, and
stipulation in pending litigation.
BACKGROUND
In June 1991, the Administrator requested that the office of
Solid Waste and Emergency Response create a task force to
identify methods for accelerating the pace of Superfund cleanups.
One identified source of cleanup delay is the lapse of time
Printed on Recycled Paper
-------
OSWER Directive #9835.4-2b
- 2 -
between ROD signature and start of a PRP-lead RD. A factor in
this delay is the time taken to lodge and enter a consent decree
memorializing PRP commitment to do both RD and RA. The task
force recommended, in a document informally known as the "30-day
study," that Regions seek and use ways to obtain RD start prior
to the entry of the consent decree.
The current timeframe from signature of a ROD to RD start at
PRP-lead sites can be significant. Major events in that period
(ROD-to-RD start) include negotiation with PRPs, preparation and
signature of a consent decree, and lodging and entry of that
decree. The period after negotiations (successfully) conclude
can be extensive, depending on public comment on the decree,
court calendars, etc. From the public's perspective, the result
is site cleanup time unnecessarily lost.
Numerous options are available, depending on the
circumstances of the Region's relationship with PRPs at a
particular site and the complexity or uncertainty of the remedy,
to accelerate RD start substantially in advance of court entry of
a consent decree.
PREVIOUS AGENCY ACTION
In 1988, the Agency issued guidance describing several
mechanisms by which a PRP could initiate the RD prior to the
entry of a consent decree, "Initiation of PRP-financed Remedial
Design in Advance of Consent Decree Entry," OSWER Directive
#9835.402A (November 18, 1988). Included in that Directive was
model consent order language.
In 1991, a Regional-Headquarters workgroup outlined several
innovative ideas for accelerating RD starts where PRPs will be
performing the response action. The methods identified include
greater use of administrative orders to start RD shortly after
ROD signature, as well as consent decree negotiation strategies
seeking RD start no later than at consent decree lodging.
Headquarters discussed these administrative options with the
Hazardous Waste Management Branch Chiefs in April 1991 and at the
Section Chiefs meeting in June 1991.
In June 1991, the Agency issued the "Model CERCLA RD/RA
Consent Decree," OSWER Directive #983517 (June 21, 1991) (Model
Consent Decree). The Model Consent Decree provides that
performance of the RD will commence upon lodging of the
agreement.
-------
OSWER Directive #9835.4-2b
STATEMENT OP POLICY
In negotiating for PRP conduct of site remediation, Regions
should seek PRP commitment to perform RD start as soon after ROD
signature as possible; at a minimum, this should be no later than
upon lodging of a consent decree for RD/RA.
1. Model Consent Decree RD Language
If a PRP will be performing the RD/RA through a consent
decree, the Regions should employ the Model Consent Decree
language for performance of RD. As discussed above, the Model
Consent Decree, Section VI., paragraph 11 (Remedial Design),
provides that RD activities will begin upon lodging of the
consent decree in district court.
While Regions should include this provision in the great
majority of cases, there may be situations where it may not be
appropriate at a particular site. For example, if the remedy is
highly controversial and the initiation of RD at lodging of the
consent decree could be seen as inconsistent with full public
participation, the Region may decide not to use the procedures in
this guidance.1 (See section 5 below.)
2. Administrative Alternatives for Early RD Start.
Where appropriate, Regions are strongly encouraged to secure
PRP commitment to RD start in advance of consent decree lodging
(i.e., as soon as possible after ROD signature). For example, if
a PRP performed the RI/FS through an administrative order on
consent and indicates it will perform the RD/RA, it may be
appropriate to amend the completed RI/FS order, to have some or
all of the RD started while overall negotiations for the RD/RA
consent decree continue.2
1 Please note that the performance of Remedial Design is not
subject to the public participation procedures under Section 122(d)
of CERCLA. The Agency considers Remedial Design to be a removal
action, outside the scope of Section 122(d)(l), which covers
proposed agreements concerning remedial action under Section 106 of
CERCLA. Thus, while the Agency may voluntarily agree to subject
the terms of the Remedial Design portion of a proposed Section 106
Remedial Design/Remedial Action consent decree to the procedures of
section 122(d), there is no legal requirement to do so.
2 This administrative alternative is most likely to be a
viable option where the PRPs who performed the RI/FS are the same
parties which agree to implement the RD/RA.
-------
OSWER Directive #9835.4-2b
- 4 -
If a Region receives a good faith offer for the RD/RA during
the special notice process, the Region should consider asking the
PRPs to complete the RD through an administrative order on
consent. This option necessitates issuance of two settlement
documents: an administrative order and consent decree. Under
this administrative option a Region could negotiate separately
the consent order from the consent decree or negotiate both
simultaneously. To reduce resources when negotiating the
agreements simultaneously, the Region could use the consent
decree language agreed upon by the PRPs as the basis for several
of the provisions in the administrative order (incorporate these
provisions by reference).
A Region may also consider an administrative option if,
after the ROD is issued, a Region continues searching for
additional PRPs to perform the RA. Settling with several PRPs to
only perform the RD in this situation is appropriate if it would
help to facilitate performance of the RA by other PRPs and would
not delay initiation of the RA.
3. Stipulation in Pending Litigation
When there is pending litigation involving the Agency and
PRPs, and the PRPs agree to perform the RD/RA through a consent
decree, the PRPs and the Agency could enter into a stipulation
filed with the court, whereby the PRPs agree to perform the RD
without waiting for lodging of the consent decree.3
4. Relationship of Administrative Action to RD/RA Consent
Decree
If a Region initially uses an administrative option for the
RD, but then lodges a RD/RA consent decree in court, the Region
could have the administrative agreement subsumed into the overall
consent decree upon entry in court. Another option is to have
the administrative agreement terminate upon court entry of the
consent decree. Where performance of the RD is through an
administrative order, the Region should conduct any unresolved
RD/RA or RA settlement negotiations and take all other steps
possible to ensure minimum delay between completion of the RD and
performance of the RA. In all cases, the Regions should
implement the administrative action in a manner that avoids delay
of the initiation of RA.
3 There is model language for the stipulation to perform the
RD. See "Initiation of PRP-financed Remedial Design in Advance of
Consent Decree Entry," OSWER Directive #9835.402A (November 18,
1988) .
-------
OSWER Directive #9835.4-2b
- 5 -
5. Notification to Headquarters
In order to maintain national, consistency, if a Region plans
to execute an RD/RA consent decree which does not provide for RD
start, at a minimum, upon lodging of the consent decree, the
Region should verbally notify the Branch Chief, Compliance
Branch, CERCLA Enforcement Division. In this notification a
Region should delineate any attempts made to secure PRP RD start
prior to entry of the consent decree, and explain why such
efforts were not successful or appropriate at a given site.
PURPOSE AND USE OF THIS GUIDANCE
This policy and any internal procedures adopted for its
implementation are intended exclusively as guidance for employees
of the U.S. Environmental Protection Agency. This guidance does
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 guidance or its internal
implementing procedures.
FURTHER INFORMATION
For further information concerning this memorandum, please
contact Gary Worthman in the Office of Waste Programs Enforcement
at FTS (202) 260-5646.
cc: Henry L. Longest
Lisa K. Friedman
Waste Management Branch Chiefs, Regions I-X
Regional Counsel Superfund Branch Chiefs, Regions I-X
-------
EPA/540/G-91/0108
Directive No. 9635.1 (c)
GUIDANCE ON OVERSIGHT OF
POTENTIALLY RESPONSIBLE PARTY
REMEDIAL INVESTIGATIONS AND
FEASIBILITY STUDIES
Final
U.S. Environmental Protection Agency
Office of Waste Programs Enforcement
Washington, D,C. 20460
VOLUME 1
-------
ACKNOWLEDGEMENTS
This document was developed by the Guidance and Evaluation Branch of the CERCLA
Enforcement Division in EPA's Office of Waste Programs Enforcement Matthew
Charsky served as EPA's Project Coordinator. The project was directed by Sally
Mansbach, Acting Director CERCLA Enforcement Division, with the assistance of
Arthur Weissman, Guidance and Evaluation Branch Chief.
The following Regional, State, and Headquarters individuals provided significant input in
the development and review of this document:
Susan Cange EPA, OERR
Perry Katz EPA, Region H
Patricia Tan EPA, Region HI
Donald Guinyard EPA, Region IV
Rick Karl EPA, Region V
Pauletta France-Isetts EPA, Region VII
Jeff Rosenbloom EPA, Region IX
Wayne Grother EPA, Region X
Kevin Cabbie EMSL-LV
John Rotert EMSL-LV
Tony Diecidue EPA, OWPE
Carrie Capuco EPA, OWPE
Patty Bubar EPA, OWPE
Rashalee Levine EPA, OWPE
Steve Hooper EPA, OWPE
Steve Golian EPA, OERR
Phil King EPA, OERR/AZ State
Sandra Conners EPA, OECM
This handbook was produced by PRC Environmental Management, Inc., under EPA
Contract No. 68-01-7331. Paul Dean served as Project Manager for PRC Environmental
Management, Inc.
-------
TABLE OF CONTENTS
Chapter
1 OVERSIGHT ROLES AND RESPONSIBILITIES 1-1
INTRODUCTION 1-1
1.1 PURPOSE OF OVERSIGHT 1-2
1.2 OVERSIGHT PERSONNEL AND RESPONSIBILITIES AT
ENFORCEMENT-LEAD SITES 1-3
1.3 OVERSIGHT RESPONSIBILITIES AT STATE-LEAD SITES 1-13
1.4 OVERSIGHT RESPONSIBILITIES AT FEDERAL FACILITIES 1-15
1.5 STANDARDS OF CONDUCT, NONCOMPLIANCE, AND DISPUTE
RESOLUTION 1-17
1.6 SCHEDULE FOR OVERSIGHT 1-20
1.7 TOOLS FOR OVERSIGHT 1-21
2 PRE-RI/FS NEGOTIATION SCOPING 2-1
2.1 INTRODUCTION 2-1
2.2 PURPOSE AND GOAL FOR THE RPM 2-1
2.3 TIMEFRAME 2-2
2.4 HOW THE RPM PERFORMS "PRE-SCOPING" 2-2
2.5 FOR FURTHER INFORMATION 2-12
2.6 RESOURCES AVAILABLE TO RPMS 2-13
2.7 HELPFUL HINTS FOR THE RPM 2-13
3 POST-AOC SCOPING 3-1
3.1 INTRODUCTION 3-1
3.2 PURPOSE AND GOAL FOR THE RPM 3-1
3.3 TIMEFRAME 3-1
3.4 HOW THE RPM OVERSEES POST-AOC SCOPING 3-1
3.5 DELIVERABLES DURING POST-AOC SCOPING 3-8
3.6 FOR FURTHER INFORMATION 3-11
3.7 RESOURCES AVAILABLE TO THE RPM 3-12
3.8 HELPFUL HINTS FOR THE RPM 3-13
111
-------
TABLE OF CONTENTS
Chanter Page
4 SITE CHARACTERIZATION 4-1
4.1 INTRODUCTION 4-1
4.2 PURPOSE AND GOAL FOR THE RPM 4-1
4.3 TIMEFRAME 4-1
4.4 HOW THE RPM OVERSEES SITE CHARACTERIZATION 4-2
4.5 DELIVERABLES DURING SITE CHARACTERIZATION 4-5
4.6 FOR FURTHER INFORMATION 4-7
4.7 RESOURCES AVAILABLE TO THE RPM 4-7
4.8 HELPFUL HINTS FOR THE RPM 4-8
5 BASELINE RISK ASSESSMENT 5-1
5.1 INTRODUCTION 5-1
5.2 PURPOSE AND GOAL OF THE BASELINE RISK ASSESSMENT 5-1
5.3 TIMEFRAME 5-2
5.4 HOW THE RPM OVERSEES A PRP RISK ASSESSMENT 5-2
5.5 DELIVERABLES DURING OVERSIGHT OF A PRP BASELINE RISK
ASSESSMENT 5-5
5.6 FOR FURTHER INFORMATION 5-6
5.7 RESOURCES AVAILABLE TO RPMS 5-7
5.8 HELPFUL HINTS FOR THE RPM 5-7
6 TREATABILITY STUDIES 6-1
6.1 INTRODUCTION 6-1
6.2 PURPOSE AND GOAL FOR THE RPM 6-1
6.3 TIMEFRAME 6-2
6.4 HOW THE RPM OVERSEES TREATABILITY STUDIES 6-2
6.5 DELIVERABLES DURING TREATABILITY STUDIES 6-5
6.6 FOR FURTHER INFORMATION 6-8
6.7 RESOURCES AVAILABLE TO THE RPM 6-9
6.8 HELPFUL HINTS FOR THE RPM 6-10
iv
-------
TABLE OF CONTENTS
Chapter Pagq
7 DEVELOPMENT AND SCREENING OF ALTERNATIVES 7-1
7.1 INTRODUCTION 7-1
7.2 PURPOSE AND GOAL FOR THE RPM 7-1
7.3 TIMEFRAME 7-2
7.4 HOW TO OVERSEE THE DEVELOPMENT AND SCREENING OF
ALTERNATIVES 7-3
7.5 DELIVERABLES DURING DEVELOPMENT AND SCREENING OF
ALTERNATIVES 7-5
7.6 FOR FURTHER INFORMATION 7-6
7.7 RESOURCES AVAILABLE TO THE RPM 7-6
7.8 HELPFUL HINTS FOR THE RPM 7-7
8 DETAILED ANALYSIS OF ALTERNATIVES 8-1
8.1 INTRODUCTION 8-1
8.2 PURPOSE AND GOAL FOR THE RPM 8-1
8.3 TIMEFRAME 8-1
8.4 HOW TO OVERSEE THE DETAILED ANALYSIS OF ALTERNATIVES . 8-1
8.5 DELIVERABLES DURING THE DETAILED ANALYSIS OF
ALTERNATIVES 8-3
8.6 FOR FURTHER INFORMATION 8-4
8.7 RESOURCES AVAILABLE TO THE RPM 8-4
8.8 HELPFUL HINTS FOR THE RPM 8-5
-------
LIST OF TABLES
Table Page
1-1 Capabilities and Specialties of Various Oversight Resources 1-5
LIST OF FIGURES
Figure Page
1-1. Phased RI/FS Process 1-4
1-2. Limits of the Oversight Assistant's Roles 1-12
1-3. Types and Uses of CERCLA Cooperative Agreements 1-14
1-4. Usual Dispute Resolution Process 1-19
1-5. Recommended RI/FS Process: Ideal Scenario 1-22
1-6. Categories of RI/FS Deliverables 1-29
1-7. Types and Uses of QC Samples 1-31
1-8. Overview of the Process 1-33
2-1. Useful Sources of Existing Data 2-3
2-2. Overview of the Site File 2-5
2-3. General Physical Conditions 2-7
2-4. Basic Description of Contamination 2-9
2-5. Program Overview 2-11
3-1. Summary of a Kickoff Meeting 3-3
3-2. Summary of Cost Recovery Documentation 3-6
3-3. Summary of Administrative Record File 3-8
3-4. Elements of Project Plans 3-9
4-1. Summary of Tools 4-4
6-1. Kinds of Treatability Studies 6-4
6-2. Predicted Treatment Effectiveness for Contaminated Soil 6-7
8-1. Summary of Nine Evaluation Criteria 8-2
-------
LIST OF ACRONYMS
AA
AD
AERIS
AOC
ARARs
ARCS
ATSDR
ATTIC
BBS
BTAG
CA
CD
CDC
CEAM
CEPP
CERCLA
CERCLIS
CLP
COLIS
CORA
CRP
DOC
DOD
DOE
DOI
DOJ
DOL
DOT
DQO
EA
ECAO
EECA
EEM
EIS
E-MAIL
EMSL
EPA or "the Agency"
ERCS
ERIS
ERL
ERT
ESD
EST
FEMA
FIT
FFA
FMO
FSP
HSCD
HEAST
Assistant Administrator
Air Division
Aid for Evaluating the Redevelopment of Industrial Sites
Administrative Order on Consent
Applicable or relevant and appropriate requirements
Alternative Remedial Contract Strategy
Agency for Toxic Substances and Disease Registry
Alternate Treatment Technology Information Center
Bulletin Board System
Biological Technical Assistance Group
Cooperative Agreement
Consent Decree
Center for Disease Control
Center for Exposure Assessment Modeling
Chemical Emergency Preparedness Program
Comprehensive Environmental Response, Compensation and
Liability Act
Comprehensive Environmental Response, Compensation and
Liability Information System
Contract laboratory program
Computerized On-Line Information Systems
Cost of Remedial Action
Community relations plan
Department of Commerce
Department of Defense
Department of Energy
Department of the Interior
Department of Justice
Department of Labor
Department of Transportation
Data quality objectives
Ecological/environmental assessment
Environmental Criteria and Assessment Office
Engineering Evaluation and Cost Analysis
Environmental Evaluation Manual
Environmental impact statement
Electronic mail system
Environmental Monitoring System Laboratory
U.S. Environmental Protection Agency
Emergency Response Contracting Strategy
Expert Resources Inventory System
Environmental Research Laboratory
Environmental Response Team
Environmental Services Division
Eastern Standard Time
Federal Emergency Management Agency
Field Investigation Team
Federal facility agreement
Financial management office
Field sampling plan
Hazardous Site Control Division
Health Effects Assessment Summary Tables
Vll
-------
LIST OF ACRONYMS
(continued)
HHEM
HHS
MRS
HSP
HWCD
IAG
IFMS
IMC
IRIS
LDR
MCL
MCLG
NCC
NCP
NEIC
NOAA
NPDES
NPL
NPTN
NRC
OE
O&M
OECM
OERR
OFFE
OGC
OHEA
ORC
ORD
OSHA
OSWER
OWPE
PA
PC
PRGs
PRP
PWS
QA/QC
QAPjP
RAGS
RAS
RCRA
RD/RA
REM
RFD
RI/FS
RME
ROD
RPM
RREL
RSKERL
SAP
SAS
Human Health Evaluation Manual
Health and Human Services
Hazard Ranking System
Health and safety plan
Hazardous Waste Collection Database
Interagency agreement
Information Management Systems
Information Management Coordinator
Integrated Risk Information System
Land Disposal Restriction
Maximum contaminant level
Maximum contaminant level goal
National Computer Center
National Contingency Plan
National Enforcement Investigations Center
National Oceanic & Atmospheric Administration
National pollutant discharge elimination system
National Priorities List
National Pesticides Telecommunications Network
Nuclear Regulatory Commission
Office of Enforcement
Operation and maintenance
Office of Enforcement and Compliance Monitoring
Office of Emergency and Remedial Response
Office of Federal Facilities Enforcement
Office of General Counsel
Office of Health and Environmental Assessment
Office of Regional Counsel
Office of Research and Development
Occupational Safety and Health Administration
Office of Solid Waste and Emergency Response
Office of Waste Programs Enforcement
Preliminary assessment
Personal computer
Preliminary remediation goals
Potentially responsible party
Public Water Supply
Quality assurance/quality control
Quality Assurance Project Plan
Risk Assessment Guidance for Superfund
Routine analytical sampling
Resource Conservation and Recovery Act
Remedial design/remedial action
Remedial Engineering Management
Reference dosage
Remedial investigation/feasibility study
Reasonable maximum exposure
Record of decision
Remedial Project Manager
Risk Reduction Engineering Laboratory
Robert S. Kerr Environmental Research Laboratory
Sampling and analysis plan
Special analytical sampling
vm
-------
LIST OF ACRONYMS
(continued)
SCAP
SCEES
SEAM
SFWS
SGS
SHPO
SI
SIF
SITE
SMOA
SNL
SOP
sow
SPO
SRI
START
TAP
TAT
TSCA
TES
TIX
TRIS
TS
TST
UAO
UIC
USCOE
USDA
USFWS
USGS
WD
WMD
WP
Superfund Comprehensive Action Plan
Site Cost Estimate and Evaluation Study
Superfund Exposure Assessment Manual
State Fish and Wildlife Service
State Geological Survey
State Historic Preservation Office
Site inspection
Site Information Form (CERCLIS)
Superfund Innovative Technology Evaluation Program
Superfund Memorandum of Agreement
Special notice letter
Standard operating procedures
Statement of Work
State Project Officer
Superfund Remediation Information
Superfund Technical Assistance Response Team
Treatability Assistance Program
Technical Assistance Team
Toxic Substances Control Act
Technical Enforcement Support
Technical Information Exchange
Toxic Release Inventory System
Treatability Study
Technical Support Team
Unilateral Administrative Order
Underground Injection Control
U.S. Army Corps of Engineers
United States Department of Agriculture
United States Fish and Wildlife Service
United States Geological Service
Water Division
Waste Management Division
Work Plan
IX
-------
Purpose
CHAPTER 1
OVERSIGHT ROLES AND RESPONSIBILITIES
INTRODUCTION
Volume 1 of this document addresses oversight of remedial investigations and
feasibility studies (RI/FSs) conducted by potentially responsible parties (PRPs)
at enforcement-lead sites addressed under the Comprehensive Environmental
Response, .Compensation and Liability Act, as amended (CERCLA). It
parallels activities described in the "Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA" (OSWER Directive
No. 9355.3-01, October, 1988, referred to here as the "RI/FS Guidance") and
the "Model Statement of Work for a Remedial Investigation and Feasibility
Study Conducted by Potentially Responsible Parties" (OSWER Directive
No. 9835.8, June 2, 1989, referred to here as the "Model SOW for PRP-lead
RI/FSs"). It provides project managers with the procedures required to
organize and perform appropriate oversight duties and responsibilities. This
document is guidance only; it is not a binding set of requirements and does not
create rights for any party.
Volume 2 describes the oversight of sampling and analysis activities (Appendix
Bl) and of well drilling installation activity (Appendix Cl) conducted during a
PRP RI. Checklists to assist in the documentation of sampling and analysis
activities and well drilling and installation activities are also found,
respectively, in Appendices B and C.
For a more in-depth discussion of the entire Superfund Enforcement Program
including removal and remedial actions, refer to the "Enforcement Project
Management Handbook" (OSWER Directive No. 9837.2-A, January 1991).
The handbook addresses the remedial planning and implementation process
from the point of the baseline PRP search (generally conducted after the site is
placed on the National Priorities List (NPL)), to the point of completion of
remedial activity and the site's deletion from the NPL.
Intended
Audience
The intended audience for this document is remedial project managers
(RPMs), although it can be adapted for use by other parties such as States,
PRPs, contractors and other persons involved in the RI/FS process.
Summary of
Chapters and
Appendices
Volume 1
Chapter 1, "Oversight of PRP RI/FS Activities" gives an overview of the
oversight process and the roles and responsibilities of the different
participants. This chapter also discusses standards of conduct, a schedule for
oversight, and tools available to assist the RPM in performing good oversight.
This chapter is intended for those in the audience with little or no background
in the oversight process.
1-1
-------
Chapter 2, "Pre-RI/FS Negotiation Scoping" discusses how an RPM performs
site planning with Regional personnel and technical experts prior to
negotiations with the PRP.
Chapter 3, "Post-AOC Scoping" discusses the RPM's detailed site-specific
planning of activities during the RI/FS and the PRP's development of Project
Plans (for example, Work Plan, Sampling and Analysis Plan, and Health and
Safety Plan) prior to the initiation of field activities.
Chapter 4, "Site Characterization" discusses how the RPM oversees PRP-
conducted.field activities, with the help of an oversight assistant, in order to
gather data that characterizes the site, defines the site risks, and helps to
evaluate potential alternatives.
Chapter 5, "Baseline Risk Assessment" discusses the RPM's oversight of PRP-
conducted Baseline Risk Assessments begun before June 21, 1990 and provides
assistance to the RPM and oversight assistant for all EPA-conducted Baseline
Risk Assessments begun after June 21, 1990.
Chapter 6, "Treatability Study Task" discusses how the RPM determines the
need for treatability studies and oversees the conduct of treatability studies
during the RI, which should assist in developing viable alternatives in the FS.
Chapter 7, "Development and Screening of Alternatives" discusses the process
of using preliminary remediation goals (PRGs) and the data generated during
the RI to establish performance standards and then develop alternatives that
can satisfy those standards and EPA's nine evaluation criteria.
Chapter 8, "Detailed Analysis of Alternatives" discusses the comparison and
relative performance of the alternatives against EPA's nine evaluation criteria
in order to select an appropriate remedy.
Appendix A, "Technical Resources Available to RPMs and Oversight
Assistants" is a mini-bibliography of technical resources at the Federal, State,
and local government levels available to RPMs and oversight assistants.
In addition to Volume 1, a companion guidance document containing two
appendices is being issued to address the identification and resolution of
specific site problems encountered by the RPM during the site characterization
task of the RI.
Volume 2 Appendix B, "Oversight and Documentation of Field Activities Including
Sampling and Analysis Procedures" describes the activities that the oversight
team should conduct during field activities.
Appendix C, "Oversight and Documentation of Well Drilling and Installation
Activities" describes the activities that the oversight team should conduct
during well drilling and construction activities.
1.1 PURPOSE OF OVERSIGHT
The purpose of oversight is to ensure that an RI/FS prepared by a PRP in an
Enforcement-lead response action is equivalent to the RI/FS that EPA would
have prepared if the site were Fund-lead. The RI/FS must conform to the
1-2
-------
requirements of the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), applicable Agency guidance, and any existing
Administrative Order on Consent (AOC), Consent Decree (CD), or Unilateral
Administrative Order (UAO). Through oversight, EPA provides direction,
assures quality, and avoids and solves problems in the conduct of the RI/FS
(see Figure 1-1, Phased RI/FS Process).
Note: The terms and conditions governing RI/FS activities may be specified
in one of three types of settlement documents, an AOC, CD, or UAO.
The AOC, however, is the preferred settlement document. This
guidance will use "AOC" exclusively when referencing a settlement
document with the understanding that the term encompasses AOCs,
CDs, and UAOs for purposes of this guidance.
Under CERCLA Sections 104(a) and 122(a), EPA has the discretion to allow
PRPs to perform an RI/FS and to conduct other response actions. A recent
change in policy for the PRP RI/FS process is that EPA will not enter into
AOCs under which the PRPs perform the risk assessment component of the
RI/FS for new risk assessments as of June 21, 1990 (see Chapter 5.) The
RI/FS, even though conducted by the PRP, must still be conducted to EPA's
standards. EPA determines whether the RI/FS is acceptable, not the PRP.
Based primarily upon and supported by the RI/FS, EPA determines if the site
warrants remediation and, if so, selects the remedy. Overall, EPA is
ultimately responsible for ensuring that the response actions taken at a site
protect human health and the environment and meet statutory requirements for
response actions.
EPA or an authorized State oversees the conduct of a PRP-lead RI/FS. A
PRP-lead RI/FS must be as comprehensive as a Federally funded RI/FS and
must be of comparable quality. However, because PRPs do not work directly
for EPA, the way EPA oversees a PRP-lead RI/FS must, in some ways, differ
from the RI/FS process at Federally funded NPL sites. EPA's oversight
authority over PRP-lead RI/FSs includes the ability to enforce the AOC, seek
penalties, and ultimately take over the project followed by cost recovery.
Good oversight minimizes EPA's need for using judicial enforcement to obtain
the quality RI/FS that EPA and the PRPs agreed to in the AOC. Good
planning, continuing review of PRP site activity and deliverables, and regular
and effective communications between EPA and PRPs are key items for
oversight.
1.2 OVERSIGHT PERSONNEL AND RESPONSIBILITIES AT ENFORCEMENT-
LEAD SITES
Introduction The RPM, with support from a contractor (usually Technical Enforcement
Support (TES) or Alternative Remedial Contract Strategy (ARCS)) that is
designated the oversight assistant, oversees the RI/FS. RPMs can get further
assistance from within EPA, other Federal agencies, and individual State
agencies. Together, the RPM, oversight assistant, and additional qualified
personnel in EPA or other Federal and State agencies form the oversight team.
Table 1 -1 lists sources of assistance available to the RPM and the oversight
assistant during specific tasks of the RI/FS process. Appendix A expands on
this table, describes area(s) of expertise, and explains how to access these
resources. For additional information, refer to the "Enforcement Project
1-3
-------
Figure 1-1. Phased RI/FS Process
FROM:
• Preliminary Site
Assessment
• Site Inspection
• NPL Listing
REMEDIAL INVESTIGATION
PRE-Rl/FS
NEGOTIATION SCOPING
> Obtain General Under-
standing of the Site
• Collect Existing Data
• Utilize Technical Support
Team
• Vtett Site to Identity
Potential Areas of
Concern
• Generate Statement of
Work
SCOPING OF
THE RI/FS
Review Existing Data
Identify Project Needs/
Operable Unit. Likely
Scenarios, and
Remedial Action
Objectives
Initiate Federal/State
ARAR Identification
Prepare Project Plans
SITE
CHARACTERIZATION
• Conduct Field Investigation
• Define Nature and Extent of
Contamination (Waste
Types. Concentrations,
Distributions)
• identify Federal/State
Chemical and Location-
Spedflc ARARs
BASEUNE
RISK ASSESSMENT
• Collect and Evaluate Data
> Perform Exposure
Assessment
• Perform Toxicity
Assessment
• Characterize Risk
TREATABIUTY
INVESTIGATIONS
• Perform Bench or Pilot
Treatability Tests (As
Necessary)
i
FEASIBILITY STUDY
DEVELOPMENT AND SCREENING
OF ALTERNATIVES
> Develop Preliminary Remediation Goals
• Identify Federal/State Action-Specific
ARARs
• Identify Potential Treatment Technologies,
Containment/Disposal Requirements for
Residuals or Untreated Waste
• Screen Technologies
> Assemble Technologies into Alternatives
t
DETAILED ANALYSIS
OF ALTERNATIVES
> Modify Preliminary Remediation Goals
• Further Refine Alternatives (As Necessary)
' Analyze Alternatives Against the Nine
Criteria
> Compare Alternatives Against Each Other
TO:
• Remedy Selection
• Record of Decision
• Remedial Design
• Remedial Action
-------
Table 1-1. Capabilities and Specialities of Various Oversight Resources (Page 1 of 4)
PRP-Lead RI/FS Tasks
OVERSIGHT
RESOURCES
/S/s/+ys/s/4W>
EPA Regional Offices and Divisions
Technical Support Team
(TST) or Regional
Equivalent
Environmental Services
Division (ESD)
Peer Review Group
Office of Regional Counsel
Pesticides and Toxics
Division
Water Division
Air Division
Office of Public Affairs
Health Assessment Officer
Risk Advisory Committee
•
•
•
•
o
o
0
*
*
*
•
•
•
*
*
*
*
*
*
*
•
•
•
*
*
*
*
*
*
•
•
•
*
*
*
*
•
•
•
•
•
*
*
*
*
•
•
•
*
*
*
*
*
•
•
•
*
EPA HQ
Office of Waste Programs
Enforcement (OWPE)
Office of Emergency and
Remedial Response
(OERR)
Office of Enforcement -
Superfund Division
Office of General
Counsel
o
0
*
o
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
L*g*nd
Can Provide Direct
Assistance and
Reviewi;
Comments on Bid
Prepares |
Reports; tnd Performs |
Field Activities !
Cm Provide
Consultation tnd
Answer Questions
O Can Provide
Additional Data and
Previoui Studies
1 As of June 21,1990, EPA's policy is not to enter into AOCs under which PRPs perform the risk assessment component of
the RI/FS as documented in a memorandum of August 28,1990.
1-5
-------
Table 1-1. Capabilities and Specialities of Various Oversight Resources (Page 2 of 4)
PRP-Lead RI/FS Tasks
OVERSIGHT
RESOURCES
/S/s/+ys/s/4Wt.
EPA HQ (cant.)
Office of Solid Waste and
Emergency Response
Assistant Administrator's
Office (OSWER AA)
*
Other EPA Offices
Office of Research and
Development (ORD)
National Enforcement
Investigations Center (NEIC)
Environmental Response
Team(ERT)
o
•
•
o
•
•
•
•
•
•
•
•
•
•
*
•
•
*
•
•
EPA Contracts
Alternative Remedial
Contracting Strategy (ARCS)
Technical Enforcement
Support (TES)
Field Investigation Team
(FIT)
Emergency Response
Contracting Strategy (ERCS)
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Other Federal Agencies
Department of
Defense (DOD)
• U.S. Army Corps of
Engineers
Department of Interior
(DOI)
• U.S. Geological Survey
• U.S. Fish and Wildlife
Service
• Bureau of Reclamation
0
o
o
o
o
o
o
o
o
•
•
•
0
•
•
o
o
•
*
*
*
Ltgtnl
Can Provide Direct
Aniiunce and
Reviews;
Comment! on md
Prepares
Reports; and Performs
Reid Activities
Can Provide
Consultation and
Answer Questions
O Can Provide
Additional Data and
Previous Studies
1 As of June 21,1990, EPA's policy is not to enter into AOCs under which PRPs perform the risk assessment component of
the RI/FS as documented in a memorandum of August 28,1990.
1-6
-------
Table 1-1. Capabilities and Specialities of Various Oversight Resources (Page 3 of 4)
PRP-Lead RI/FS Tasks
OVERSIGHT
RESOURCES
/S/s/+ys/s/4Wf.
Other Federal Agencies (cont.)
Department of Interior (cont.)
• Bureau of Mines
• Natural Resources
Trustee
Department of Agriculture
(US DA)
• Soil Conservation
Service
• Forest Service
• Agriculture Stabilization
and Conservation Services
Department of Commerce
• National Oceanic and At-
mospheric Administration
Department of Energy (DOE)
Nuclear Regulatory
Commission (NRQ
Department of Health and
Human Services (HHS)/
Agency for Toxic Substances
and Disease Registry
(ATSDR)
Department of Justice (DOJ)
Department of Labor
• Occupational Safety and
Health Administration
(OS HA)
Federal Emergency Manage-
ment Agency (FEMA)
Department of
Transportation (DOT)
• U.S. Coast Guard
o
o
o
0
o
o
0
o
0
•
o
o
o
o
o
o
o
o
o
o
0
o
o
o
o
o
•
•
•
•
•
•
o
o
•
•
•
•
•
•
o
0
•
•
•
o
•
•
•
*
*
*
*
*
*
*
•
*
*
*
•
Ltgtnd
i Can Provide Direct
AniiUnce and
Reviewi;
Comment! on xnd
Preptrei
Reporti; »nd Perform!
Field Activities
Can Provide
Coniuluiion and
Aiuwer Questions
O C*n Provide Additional
Data and Previous
Studies
1 As of June 21,1990, EPA's policy is not to enter into AOCs under which PRPs perform the risk assessment component of
the RI/FS as documented in a memorandum of August 28,1990.
1-7
-------
Table 1-1. Capabilities and Specialities of Various Oversight Resources (Page 4 of 4)
PRP-Lead RI/FS Tasks
OVERSIGHT
RESOURCES
State Assistance
State Agency for
Environmental Protection
Public Health Agency
State Attorney General Office
Court Records of Legal Action
State Fish and Wildlife Service
State Soil Conservation Service
State Geological Survey
State Historic Preservation Office
State Highway Department
State/Private Academic
Institutions
Local Assistance
County or City Health
Departments
Local Planning Boards
Chamber of Commerce
Town Engineer
Local Library
Local Well Drilling Companies
Local Airports
Residential and Municipal
Well LORS
x>
o
•
o
o
o
o
o
o
0
o
0
0
o
o
o
0
0
/*,
o
0
o
o
*
*
o
0
o
o
•
o
X*
/& t
*
•
•
•
*
*
•
•
•
•
o
'/+
•
•
•
•
•
•
•
*
*#
•
•
*/*
/£<
*
*
*
*
^
Legend
Can Provide Direct
Auiiunce and
Reviewi;
Comment! on md
Prepares
Reponi; and Performs
Field Activities
# Can Provide
Consultation and
Answer Question]
O Can Provide
Additional Data and
Previous Studies
1 As of June 21,1990, EPA's policy is not to enter into AOCs under which PRPs perform the risk assessment component of
the RI/FS as documented in a memorandum of August 28,1990.
1-8
-------
Management Handbook" (OSWER Directive No. 9837.2-A, January 1991), and
Technical Support Services for Superfund Site Remediation - Interim
Directory" (Winter 1989).
Prospects for a quality PRP RI/FS are greatly enhanced when a PRP fully
understands what EPA expects, frequently communicates with EPA, and
submits periodic deliverables on a pre-determined schedule. PRPs need to:
• Maintain records and other project documentation;
• Keep the RPM informed of progress and problems encountered during the
required activities through progress reports and meetings; and
• Submit acceptable deliverables within the timetable agreed upon with the
lead agency.
The extent of oversight responsibilities should be discussed during
negotiations, defined in the AOC and its attached Statement of Work (SOW),
and implemented as site-specific conditions require. To further understand
oversight responsibilities in their entirety, all parties involved should
thoroughly review,both this chapter as well as Chapters 2 through 8, Appendix
A in this volume and Appendices B and C in Volume 2, and the RI/FS
Guidance (October 1988).
Remedial
Project
Manager
(RPM)
The RPM is the EPA official with primary responsibility for overseeing all
remedial response actions undertaken by PRPs. The specific duties of the
RPM may vary from site to site and will generally depend upon the PRP's
commitment to the project and the complexity of the site. The RPM's duties
are discussed, in detail, in Chapter 2 of this manual.
During oversight of a PRP RI/FS, RPMs perform both Regional and other
activities throughout the process, including:
Regional Activities
• Approve an oversight assistant and manage his/her activities;
• Identify persons/agencies/extramural resources with particular expertise
that will provide technical review of activities and deliverables and agree
to the scheduled timeframes;
• Identify the preliminary scope of RI/FS activity;
• Identify the site-specific activities and deliverables required from the PRP;
• Prepare a project schedule for the AOC and monitor PRP adherence;
• Budget intramural and extramural resources to support the project and
associated paperwork;
• Verify that the planned activities will meet NCP requirements, satisfy the
RI/FS objectives, and satisfy the provisions of relevant guidances;
• Consult with counsel;
1-9
-------
• Review all PRP and oversight assistant deliverables to assure quality and
provide related technical comments;
• Obtain internal EPA input on specialized matters (for example,
groundwater contamination, fractured bedrock, contaminants without
toxicity values);
• Adhere to EPA schedule for reviewing deliverables or meeting other
deadlines;
• Assure, that any aspects of the RI/FS performed by EPA are done
promptly (for example, the risk assessment or, applicable or relevant and
appropriate requirements (ARAR) analysis);
• Assure EPA management and legal review at major stages (for example,
Work Plan, draft RI, proposed plan, and record of decision (ROD));
• Finalize any supplements to the RI/FS and write the proposed plan and
ROD; and
• Provide monthly updates of budget and project schedule data in the
CERCLA Information System (CERCLIS) in coordination with Regional
Information Management Coordinator (IMC).
Other Activities
• Coordinate with the State and, as appropriate, other agencies (for example,
Department of Interior (DOI), National Oceanographic and Atmospheric
Administration (NOAA), Agency for Toxic Substances and Disease
Registry (ATSDR)) on scoping;
• Conduct scheduled and unscheduled site inspections in conjunction with
the oversight assistant;
• Meet with PRPs periodically to communicate EPA's requirements and
discuss work progress;
• Maintain communication with the State throughout the RI/FS process with
an emphasis on understanding State perspective, the State identification of
ARARs, and the coordination of community relations;
• Conduct community relations activities, with assistance of the community
relations coordinator;
• Maintain the site file, including cost recovery documentation; and
• Establish and update periodically the Administrative Record File in
conjunction with the Office of Regional Counsel (ORC).
Both the RPM's scope of responsibility and authority and the extent of
oversight that will be required during the RI/FS will be addressed in the AOC.
The AOC must include specific provisions for oversight, such as the need to
address the reimbursement of Agency oversight costs.
1-10
-------
Oversight
Assistant
The oversight assistant is the qualified person, usually a contractor, required
by CERCLA Section 104(aXl) to assist EPA with oversight. Qualified persons
have the professional qualifications, e-xpertise, and experience necessary to
provide EPA with the assurance that it can provide effective oversight. EPA
selects the oversight assistant, and services performed by the oversight assistant
are paid for by the lead agency, which receives reimbursement through the
AOC from the PRP. The oversight assistant typically will be a contractor
(TES or ARCS). In some cases, the oversight assistant may be provided by a
State through a Cooperative Agreement or by another Federal agency, such as
the U.S. Army Corps of Engineers (USCOE), through an Interagency
Agreement; in both of these cases the oversight assistant can be a State or
Federal contractor.
The RPM has flexibility in defining the oversight assistant's responsibilities at
the site. The oversight assistant may be responsible for
• Assisting in planning of project scope and schedule (see Chapter 2 and 3);
• Reviewing existing site information;
• Monitoring PRP field activities to verify PRP performance in accordance
with the AOC, consistency with standard protocols, and use of generally
accepted scientific and engineering methods;
• Reviewing deliverables submitted by the PRPs;
• Conducting quality assurance tasks;
• Conducting EPA's risk assessment;
• Drafting any necessary supplements to the RI/FS;
• Conducting contingency planning to protect human health and the
environment in the event of an emergency;
• Assisting in reproducing documents for the Administrative Record File in
the Regional office and at the site (decisions on what documents to include
are made by the RPM in conjunction with ORC);
• Preparing and assisting in implementing community relations deliverables
and tasks; and
• Providing site-specific information to the Regional IMCs for input into
CERCLIS.
Limits of the Figure 1-2 summarizes the limits of the oversight assistant's role. The
Oversight oversight assistant may be allowed to approve minor deviations in field acti-
Assistant's vities due to situations beyond the control of the contractor for which there is
Role and an obvious solution. For example, these situations may include a change in a
Responsi- surface water sample location due to an unanticipated decrease in the water
bUities elevation, flooding of a sample or well location, or the presence of some other
physical obstruction (such as subsurface refusal). The oversight assistant
should contact and obtain the advice of the RPM if the oversight assistant
believes there is any question of his or her authority to approve a deviation.
The oversight assistant mav not approve deviations from the Work Plans. Only
the RPM may approve these changes.
1-11
-------
Figure 1-2. Limits of the Oversight Assistant's Roles
The oversight assistant may be authorized to:
• Monitor and document activities specified in the AOC, SOW, and
Work Plan;
• Conduct quality assurance activities;
• Develop contingency plans for field activities; and
• Approve minor deviations that do not affect the site agreement or
Work Plan.
The oversight assistant is NOT authorized to:
• Approve modifications in the AOC, SOW, or Work Plan;
• Undertake any responsibility of the PRP;
• Advise or issue directions to any PRP contractor; or
• Assume control of any aspect of the RI/FS.
Management The RPM or oversight assistant may be required to manage a staff of quality
of Site assurance personnel at sites where several activities are being performed
Activities concurrently. These personnel generally will be specialists in the activities
being performed and will conduct quality assurance tasks, including
documenting procedures, obtaining split or duplicate samples, and providing
quality assurance tests of materials or workmanship. The staff may also be
responsible for providing health and safety monitoring for the community.
Management of the staff will include coordination and designation of each
staff member's responsibilities and daily compilation of activity logs and field
notes (see Section 1.7).
Contingency The RPM or oversight assistant is also responsible for contingency planning.
Planning If there is an unexpected event or emergency, the RPM or oversight assistant
should be prepared to instruct their staffs and take the precautions necessary
to protect human health and the environment. Unexpected events might
include accidents, temporarily denied site access, a force majeure event, etc.
PRP events that lead to modifications to the Work Plan and disputes are the
responsibility of the RPM, not the oversight assistant.
RPM's Review
of Oversight
Assistant's
Responsi-
bilities
Prior to the initiation of site work, and periodically through the RI/FS pro-
cess, the RPM must review with the oversight assistant their respective roles
and responsibilities for the project. To help ensure continued proper
performance by the oversight assistant, project responsibilities should be
documented in writing. Key areas to cover include:
1-12
-------
1.3
• Review of Work Plans and quality assurance/quality control (QA/QC)
plans;
• Review of existing site information;
• The frequency of site inspections;
• The method of documenting field activities;
• The extent of QA/QC (-including the number of split, duplicate, and blank
samples, and review of PRP laboratory work (see Section 1.7.2, and
Volume 2, Appendix B));
• Reporting requirements to the RPM;
• Continuing communication between the RPM and oversight assistant; and
• Monitoring expenditures.
OVERSIGHT RESPONSIBILITIES AT STATE-LEAD SITES
Introduction CERCLA Section 121(f) and NCP Sections 300.500 to 300.525 require EPA to
provide opportunities for meaningful and substantial State involvement in the
long-term planning process for all CERCLA remedial actions within a State,
and in negotiations with PRPs at CERCLA facilities in that State. Federal
funding may be provided to States to support a broad range of Superfund
response activities. The State's role in overseeing PRP-conducted remedial
activities is determined largely during an annual planning process that takes
place between EPA and the State. A primary function of this planning process
is to determine who will take the lead responsibility for actions at the NPL
sites within the State.
State
Agreements
and Oversight
Activities
Designation of the State as lead may be embodied in a Superfund
Memorandum of Agreement (SMOA), a Cooperative Agreement (CA), or some
other document entered into by EPA and the State. EPA may designate a State
the lead responsibility for an enforcement response at any site within its
jurisdiction, other than a Federal facility. While CAs are legally binding and
often site specific, SMOAs represent a non-binding, general agreement
between the State and EPA that establishes their respective roles at NPL sites
within that State. Provided it has demonstrated to EPA the capability to do so,
the State can have responsibility for the lead role in notifying, negotiating, and
developing an enforceable settlement agreement with PRPs (under State law)
and overseeing site activities.
The SMOA, generally, is program-wide, rather than requiring specific-State-
involvement activities. The nature of overall EPA/State roles in oversight
should be outlined in the SMOA and is based on an assessment of the State's
technical and legal capabilities as well as on its experience in hazardous waste
management practices.
Under CERCLA Section 104(dXl), the CA is the assistance vehicle that
transfers funds to a State and documents both EPA's and the State's
responsibilities for a site. There are six different kinds of CAs that
correspond to the phases of cleanup responses and support. (See Figure 1-3.)
EPA will only enter into a CA with the State agency for Superfund response
(usually the State's pollution control agency) as designated by the State's
Governor or comparable representative of a political subdivision or Federally
1-13
-------
Figure 1-3. Types and Uses of CERCLA Cooperative Agreements
Removal - These CAs are available to fund short-term actions taken to prevent,
minimize, or mitigate damage and to stabilize a site prior to further response
actions. Removals can include emergency activities, time-critical activities
(actions with planning periods of less than 6 months) and actions with planning
periods of more than 6 months. Under current Agency policy, the only removal
actions for which States may have the lead are removals with a planning period of
more than 6 months.
Pre-remedial - These CAs are available to fund Preliminary Assessments (PA) to
identify a site and the seriousness of a hazardous substance release, and Site
Inspections (SI) to eliminate from consideration those releases that pose no threat
to human health or the environment.
Remedial - These CAs are available to fund long-term actions taken to prevent,
minimize, or eliminate exposure and damage to human health and the
environment.
Enforcement - These CAs are available to fund activities to recover costs for
cleanup from PRPs, to oversee cleanup of a site by PRPs, or to compel a PRP to
clean up a site (under State law).
Support Agency - These CAs are available to States, political subdivisions, and
Federally recognized Indian Tribes to fund management activities that support a
site-specific non-State-lead response.
Core Program - These CAs are available to fund CERCLA program activities that
are not assignable to specific sites but are necessary to support participation by a
State or Federally recognized Indian Tribe in CERCLA response.
recognized Indian Tribe. Enforcement CAs may authorize States with lead
responsibilities to undertake such activities as PRP searches, notifications,
negotiations, and PRP oversight. (See 40 CFR Part 35, Subpart O for a listing
of all activities eligible for funding under enforcement CAs.) States, political
subdivisions thereof, and Federally recognized Indian Tribes may apply for
enforcement CAs and in doing so must demonstrate that they have the
necessary authority, jurisdiction, and administrative capabilities to undertake
enforcement actions. States (or political subdivisions or Indian Tribes) must
also demonstrate, prior to receiving any Fund money through a CA for PRP
oversight, that they have attempted to obtain this funding from the PRPs
themselves.
Even if the State does not take the lead in entering into and overseeing an
RI/FS settlement agreement, the State may, under certain circumstances,
undertake various, mutually agreed upon oversight activities at PRP-lead sites.
For example, States might participate in reviewing Project Plans or draft and
final reports, overseeing field-related activities, or conducting community
relations activities. The State may receive support agency funding under a
CERCLA Section 104(d) CA for performing these activities. The State's and
EPA's respective roles and responsibilities should be clearly defined in a CA.
1-14
-------
Additional information on the States' role in PRP oversight can be obtained
from the NCP (40 CFR Part 300, Subpart F), and 40 CFR Part 35, Subpart O
as promulgated on June 5, 1990.
State
Responsibility
for Oversight
When a State assumes responsibility as the lead agency for overseeing an
Enforcement-lead remedial project, the project is managed by a State Project
Officer (SPO). The site-specific responsibilities of the SPO are generally the
same as those previously described for the RPM. The RPM, as the
representative of the support agency, may review, comment, and or approve
project deliverables (depending on the terms of the AOC, SMOA, CA, or other
agreements). The RPM may provide additional assistance such as applicable
guidance or training if the SPO requests it.
Further For further information regarding CAs (including site-specific, support, and
Information Core Program), contact EPA's State and Local Coordination Branch in the
Office of Emergency and Remedial Response (OERR) at (FTS) 308-8380. For
more information on State roles in enforcement, contact EPA's Guidance and
Evaluation Branch in the Office of Waste Programs Enforcement (OWPE) at
(FTS) 475-6771. References for State involvement include the following:
• Subpart F of the NCP (40 CFR 300.500 through 300.525);
• The Agency's administrative rule for Cooperative Agreements and
Superfund State Contracts for Superfund Response Actions (40 CFR Part
35, Subpart 0); and
• OSWER directives in the 9375.5 series, which pertain to State, political
subdivision, and Federally recognized Indian Tribal involvement in the
Superfund program.
1.4 OVERSIGHT RESPONSIBILITIES AT FEDERAL FACILITIES
Federal facilities are a significant, and unique, portion of the universe of
facilities affected by CERCLA. Federal facilities include military bases,
Department of Defense and Department of Energy (DOD and DOE) facilities,
DOI facilities, and other government-owned or -operated facilities. They
constitute almost 10 percent of the NPL sites. Executive Order 12580
delegates CERCLA authorities to EPA and other Federal agencies. Among the
delegations contained in this order are CERCLA Section 104 responsibilities.
Federal agencies are, in general, authorized to conduct response actions where
the release is on, or where the sole source of the release is from, the Federal
facility.
At Federal facilities on the NPL, EPA has a statutory consultative role and
must both be a party to the interagency agreement under Section 120(e)(2),
and approve the final remedy selection that will be contained in the Federal
facility's ROD to ensure consistency with EPA's policies and regulations.
CERCLA response actions at all Federal facilities must comply with the
standards and procedures contained in CERCLA and the NCP. At Federal
facilities not on the NPL, EPA has a more limited role. EPA has authority to
consult with the other Federal agency and to participate in the final remedy
selection if requested by the other agency. While oversight of Federal
facilities should be to the same degree as oversight of non-Federal PRPs, it is
1-15
-------
important to note certain distinctions that may affect the RI/FS. These
distinctions are based on the unique characteristics of Federal facilities:
• The RI/FS will, generally, be conducted under Interagency Agreements
(IAGs), also known as Federal Facility Agreements (FFAs), (including as
parties Federal facilities, EPA, and where possible, the State -- if it
chooses to join) rather than under AOCs;
• The RI/FS will usually be conducted by the other Federal agency; EPA, in
general, would not conduct the RI/FS (unless requested to do so, and
reimbursed for doing so, by the other Federal Agency);
• Security clearances may be needed to gain access to parts of the facility for
oversight purposes;
• Exemptions from statutory requirements are possible with site-specific
Presidential orders for national security concerns;
• Federal facility cleanups are sometimes very complex and may involve
more than one release and concurrent multiple tenant activities may exist
at each site;
• Federal funding for most remedial actions by a Federal facility does not
come from the Superfund appropriation to EPA, but out of an
appropriation from Congress directly to the Federal agency; and
• Qualifying Federal facilities with Resource Conservation and Recovery Act
(RCRA) regulated units routinely are listed on the NPL (at private sites
these facilities generally are not listed).
CERCLA CERCLA Section 120 addresses the application of CERCLA to both NPL and
Section 120 non-NPL Federal facilities. EPA has developed, in conjunction with the
affected agencies, model language for key provisions of CERCLA FFAs (or
IAGs) for DOE (memorandum dated May 27, 1988) and for DOD
(memorandum dated June 17, 1988). Other Federal agencies should also be
using the model language as the basis for any IAG.
Further In response to the unique considerations of Federal facility oversight, EPA
Information created the Office of Federal Facilities Enforcement (OFFE). OFFE assists
the Regional media programs in overseeing the Federal agency implementation
of CERCLA Section 120 and other statutes. For further information regarding
Federal agency response programs, contact the appropriate Regional
coordinator in OFFE at (FTS) 475-9801.
References concerning Federal facilities include the following:
• Federal Facilities Hazardous Waste Compliance Manual, OSWER Directive
9992.4, January 18, 1990;
• Executive Order 12580, Superfund Implementation, January 23, 1987;
• Executive Order 12088, Federal Compliance with Pollution Control
Standards, October 13, 1978;
1-16
-------
1.5
• NPL Listing Policy for Federal Facilities, 40 CFR Part 300, 54 Federal
Register. March 13, 1989, p. 10520;
• Federal Facilities Negotiations Policy, OSWER Directive No. 9992.3,
August 10, 1989;
• Enforcement Actions Under RCRA and CERCLA at Federal Facilities,
OSWER Directive No. 9992.0, January 25, 1988;
• Agreement with the Department of Defense -- Model Provisions for
CERCLA Federal Facility Agreements, OSWER Directive No. 9992.1,
June 7, 1988;
• Elevation Process for Achieving Federal Facilities Compliance Under
RCRA, OSWER Directive No. 9992.1a, March 24, 1988;
• Agreement with the Department of Energy -- Model Provisions for
CERCLA Federal Facility Agreements, OSWER Directive No. 9992.2,
May 27, 1988; and
• Subpart K of the NCP (pending proposal in FY91).
STANDARDS OF CONDUCT, NONCOMPLIANCE, AND DISPUTE RESOLUTION
Standards of The individual(s) performing oversight should be aware of certain standards of
Conduct conduct in addition to their specific responsibilities for the project. Oversight
personnel should perform their duties in a professional, responsible, and non-
confrontational manner.
Differences of opinion between the RPM or oversight assistant and the PRPs
or their contractor should be avoided. Any observations or suggestions
pertaining to field activities, which the oversight assistant or his/her staff may
have, generally should be discussed with the PRP field supervisor before
talking to the RPM. It should be noted, however, that there may be
circumstances that warrant checking with the RPM first. In discussions with
the field supervisor, the oversight assistant should avoid the appearance of
directing or approving work. Discussions with the PRP field supervisor should
be documented and reported to the RPM. For a State-lead site, the oversight
personnel should consult the SMOA, CA, or other agreement on the role of the
State at the time.
Non- If, after discussions with the field supervisor, the PRPs or their contractors are
compliance found not to be in compliance with the site plans, then the RPM should orally
contact the PRPs' project manager. Documentation of the conversation
between the RPM and the project manager should be in the form of either a
telephone log or meeting notes, whichever is appropriate. Formal notification
of noncompliance follows this final attempt at informal resolution.
Disputes do not affect the PRPs' obligations to perform. PRPs must continue
to meet their obligations under the AOC while the dispute is pending or risk
the imposition of penalties if the resolution is unfavorable to the PRP.
1-17
-------
Formal notification of noncompliance occurs when a written notice of
disapproval is sent by the appropriate EPA official (usually a Branch Chief or
Division Director) to the appropriate PRP representative. Procedures for such
notification should be spelled out in the AOC.
Dispute Dispute resolution procedures are negotiated items for each AOC. If the PRPs
Resolution object to EPA's notice of disapproval, they submit their written objections to
the designated EPA official (usually a Regional manager) within the period
provided in the AOC (usually 14 days) requesting formal dispute resolution.
Typically,.the parties have 14 days from EPA's receipt of the PRPs' objections
to reach agreement through negotiations. If an agreement cannot be reached
through negotiations, the RPM must ensure that a written decision is prepared
for signature by the appropriate EPA official (usually a Division Director).
This decision is generally final, without the ability to appeal. Figure 1-4
summarizes the process for resolving disputes.
Settlement EPA has begun to use consensus-building techniques or settlement facilitation
Facilitation mechanisms in its dispute resolution processes. Due to its informal and
impartial nature, settlement facilitation may help resolve disputes in a manner
which restores the parties' ability to work together. This is of particular
importance in PRP oversight, since the parties have already reached a
settlement agreement and presumably wish to preserve it. The use of
settlement facilitation is left to the discretion of the Region and does not have
to be specifically provided for in the AOC (although it may be). For more
information, see the "Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility Studies" (OSWER
Directive No. 9835.la, May 16, 1988).
Remedies
for Non-
compliance
EPA may impose sanctions in the event that dispute resolution is unsuccessful
or if EPA takes over the site. It is advisable that EPA attorneys in the ORC
and OE- Superfund Division be alerted in each instance. EPA counsel should
be consulted to help determine the appropriate response to noncompliance.
Types of sanctions available to the Agency include:
• Injunctive relief (court order to comply)
• Stipulated penalties
• Statutory penalties
• Project takeover and subsequent recovery of costs.
Injunctive
Relief
If EPA desires PRP performance of the terms of the settlement agreement
instead of, or in addition to, monetary penalties, EPA may seek a court order
compelling performance. Subjecting a PRP to a court order may lead to
further sanctions against the PRP for failure to comply with the order.
1-18
-------
Figure 1-4. Usual Dispute Resolution Process
Informal Discussion
If work involved is field work, the oversight assistant discusses
apparent deviation from site agreement or Project Plans with PRP
field supervisor. If work involved is other than field work, RPM
discusses deviation with a PRP coordinator. Where concerns are
lengthy and very specific (for example, review of a Project Plan),
initial communication may be in writing.
If in the field, the oversight assistant documents decisions of the
PRP field supervisor and reports it to the RPM. The RPM calls the
PRP project manager regarding the apparent deviation.
Conversations are documented in telephone log or memorandum.
Notice of Noncompliance
• EPA provides formal notice of noncompliance in writing.
Dispute Resolution
• PRPs request formal dispute resolution with the Division Director
with support by the RPM. (Usually PRPs have 14 days to make the
request.)
• Parties negotiate (usually for up to 14 days). Region, usually
Division Director or Branch Chief, issues written decision.
Remedies for Noncompliance with the Decision
• If PRPs fail to comply with EPA's 'decision, EPA may take action,
including but not limited to the following: seek stipulated or
statutory penalties, enforce the decision, or take over the project
and recover costs incurred in assuming responsibility for the
response action and for past costs not otherwise recovered.
Stipulated PRPs may be subject to monetary penalties, in the form of stipulated and
Penalties statutory penalties, for failure to perform an activity or complete a deliverable
of acceptable quality in accordance with the requirements of the AOC. The
amount and schedule of stipulated penalties is agreed upon by the parties in
the AOC. The obligations to which stipulated penalties adhere, such as
schedule deadlines and deliverables, also are specified in the order or decree.
Additional information on the use of stipulated penalties may be found in the
"Model Administrative Order on Consent for RI/FS" (OSWER Directive No.
9835.10, January 30, 1990) and the "Guidance on Use of Stipulated Penalties in
Hazardous Waste Cases" (OSWER Directive No. 9835.2b, September 9, 1987).
1-19
-------
Statutory EPA may seek statutory civil penalties for PRP noncompliance with the AOC.
Penalties CERCLA Section 106 provides for penalties and Section 107 provides for
treble damages for certain violations of AOCs. In CERCLA Section 109, civil
penalties range from $25,000 per violation, to $25,000 per day for each
violation, to $75,000 per day for second or subsequent violations. These
penalties may be assessed administratively, after a hearing, or judicially.
Depending on the settlement terms, EPA can seek statutory penalties for any
violation of the AOC, whether or not covered by stipulated penalties.
Project EPA can move to take over all or a portion of the RI/FS by replacing the PRP
Takeover activities with Fund-financed actions. To take over the RI/FS, EPA must
notify the PRPs that it will undertake the response action, generally citing the
applicable provision of the AOC, and issuing a stop-work order to the PRPs
with a notification to the EPA remedial contractors.
In issuing stop-work orders, RPMs should be aware that Fund resources may
not be immediately available. But, in the case of PRP actions that
immediately threaten human health or the environment, there may be no other
course of action than to issue a stop-work order. Once the stop-work order is
issued, a Fund-financed RI/FS will be undertaken consistent with EPA
funding procedures.
In the notice to PRPs and EPA remedial contractors, the effective date of
project takeover should be specified and the reason for the takeover provided.
In addition, EPA's reservation of rights to seek reimbursement for costs
incurred by the United States (or the applicable State) should be reiterated in
the notice. EPA counsel in ORC and OE-Superfund Division should be
provided copies of all notices and can assist in determining whether further
legal action should result from PRP noncompliance.
1.6 SCHEDULE FOR OVERSIGHT
RI/FS activities are typically complex and require a significant degree of
organization, coordination, and integration to ensure the development of a
product sufficient to determine an appropriate remedial action. Prior to
negotiations, EPA, with support from a contractor, will determine the project
scope. After the project is scoped, Work Plans will be developed by PRPs and
reviewed in detail and approved by EPA. At the onset of an RI/FS, greater
oversight of planning and proposed field work is necessary. The RPM should
identify the oversight activities that must be performed as well as the
individuals who will conduct them. The RPM must ensure that these
individuals are fully qualified to oversee the necessary activities.
The specific level of oversight will vary from site to site and will depend on
factors such as the complexity of the site or particular components of the
RI/FS. It will also depend on the level of confidence in the technical expertise
of the PRPs (or their contractors) to perform the work, and performance of
PRPs on prior deliverables. Additionally, the level of oversight will vary with
the specific activity or task. For example, the RPM should be on site to
observe sampling activities, particularly contaminant sampling (as opposed to
stratigraphic sampling), well construction, and drilling operations for at least
the first several wells. The oversight assistant, however, is responsible for
overseeing all site and sample collection activities. RPM oversight for the
initial wells is particularly important to assure that any specified equipment is
1-20
-------
used and decontaminated before use and to observe the diligence of the PRPs'
geologist and driller. On the basis of the initial well installation, less RPM
oversight might be necessary for subsequent drilling operations.
In determining the appropriate level of oversight, the RPM also should
examine the Work Plan and the SAP, paying particular attention to the PRPs'
work schedule. This work schedule should be converted to a timeline (see
Figure 1-5 and the "Enforcement Project Management Handbook" (OSWER
Directive No. 9837.2-A, January 1991 for examples of timelines)) so that the
critical activities can be identified. In addition, the AOC should require the
PRPs to provide advance notice of sampling events. Examples of critical
activities that occur during the RI/FS include:
• The installation of sampling and monitoring devices (including the
establishment of sampling grids);
• Sampling events;
• The use of on-site field analytical techniques; and
• The submittal of draft and final reports and any other major deliverables.
In addition to scheduled site visits, some unannounced inspections should be
made periodically, particularly during and after adverse weather conditions
when site characteristics may change (for example, drainage patterns, wind
damage, temperature effects on equipment).
Day-to-day interaction between the RPM and PRPs may be needed,
depending on factors such as site complexity, PRP recalcitrance, and quality of
performance. Day-to-day interaction between the RPM and oversight
assistant, on the other hand, may not be required but is strongly suggested.
1.7 TOOLS FOR OVERSIGHT
Good PRP oversight throughout the RI/FS process involves the use of a
variety of tools available to the RPM. Some of the more important tools
include the following:
• Knowing the location of and how to access various kinds of technical
assistance in an efficient manner;
• Requiring the amount of PRP documentation necessary to justify (even
before a court) why a decision was made, how to approve or disapprove a
deliverable, why an activity should be conducted or not, and how the
activity performed will generate quality data that can be used to select a
remedy;
• Conducting regular meetings with the PRP (and their contractors) and, as
necessary, with Regional managers, technical experts, the oversight
assistant, States, Natural Resource Trustees, and the community to address
site-specific concerns;
• Requiring PRPs to submit deliverables, in a timely manner, that are
complete, accurate, and representative of the data obtained; and
• Assuring that the PRP activities satisfy the QA/QC requirements of EPA
and the Regional standard operating procedures.
1-21
-------
Figure 1.5a. Recommended Rl/FS Process: Ideal Scenario
Months
-5
-3
-2
Form
Committee
Compile
Documentation
RPM
(SI* |
'Inspection
1
Prepare for Scoping Meeting
EPA
General
Nolle*/
Section
I0«e)
Documenl Review
Draft Preliminary
Budget
Prepare Draft SOW
Prepare Draft SOW
&AOC
Prepare Special I
Notice I
Send Special Node*
Aaaees Technotogtesl A Schedule Scoping Mating
Determine Potential
TreataUNty Studies
Develop
Preliminary ARARs
Preliminary
Remediation Goab
Notify EPA and State Participants
RPM Site Inspection
Scoping Meeting
Rl/FS Negotiation
and Moratorium
Obtain Access
Moratorium
Prepare CRP
WP Review
Extension
(discretion ary)
Accept
WP
Notify Natural
Resource Trustees
Administrative Order on Consent
PRPs From Steering Committee Based on General Notice Letter
Draft HSP
PRP
Rl/FS Negotiation
and Moratorium
Procure Lab[
Prepare Draft WP, SAP, QAPjP
Procure
Contractor
Good Faith Offer
legoliation |
Extension
(Discretionary)
Model
Order
Dellverabtes
Procure Support
Contractor
Procure Oversight Memo
Contractor (If not on TS
Support Contractor)
^Obtain Draft WP, SAP & QAPjP
-Pre-Rl/FS Negotiation Scoping-
.Post-AOC Scoping.
-------
Figure l.5b. Recommended Rl/FS Process: Ideal Scenario (Continued)
Months
EPA
PRP
Model
Order
Deilverablea
23456789
i i i i i i
Conduct On-site Oversight
A. Hold Public Meeting
1 Develop Cost F
1
1 Open Adrnlnicti
Mobilize |
I 1 I i i
Data Validation/Review PRP Reports
ecovery Documentatkx
relive Record File
Soil Screening
Drill Borings
Bacfcgr
Samj
ound
lies
| Install and Develop Wete
Review TS Workplan | | Accept TS WorKplan |
j'
*
Compile/Request ARARs 5
GW Screening
Conduct TS Oversight j
[ PRP Data VaHdalton |
|
Prepare Site Characterization Summary
1
Draft PRP TS WP
Review Site Characterization
*
Compile ARARs £
Draft Exposure Scenario |
Revise TS WP
Procure TS Contractor
1
Conduct TS
A EPA A TS SOW A n WfVSAP > Uet of Chemfcala {
i "o*"** ™ ^ 1 at Concern
PRP ol TS A n Hsp
* . SKe
A Memo on A characterization ,
1s"***" ^ Summery <
\
Toxlootogtcal Memo
Memo on Expoeure 1
Fate end Treneport
Environmental
Evaluation Plan
* Continued
-Site Characterization (Including Baseline Risk Assessment & Treatability Studies)-
-------
Rgure 1.5c. Recommended RI/FS Process: Ideal Scenario (Continued)
Months 19
10
11
12
13
14
15
I On-site Oversight
Data Validation
Compite/Request ARARs
Conduct TS Oversight
Review Draft Exposure Scenario
j Review TS Report
Compile ARARs |
Additional Sampling |
Data Validation
| Prepare Oral) Rl
Conduct TS |
Prepare TS Report ]
A TS Evolution Report
EPA
PRP
Model
Order
Deliverable*
1 Continued
. Site Characterization (Including Baseline Risk Assessment & Treatability Sudies).
-------
Figure 1.5d. Recommended RI/FS Process: Ideal Scenario (Continued)
Months
EPA
i— •
fe
PRP
Model
Order
Dellverablea
14 15 16 17 18 19 20 21 22
Revfewftl
RnaHza ARARs
1
Review Alternative
Screening M«mo
^ Hold Put
| Accept Rl ]
Jlc Ueeting
( Revise Rl |
Draft FS
Develop Alternative
Screening Memo
Revise TS Report
Review Draft FS
/
Draft Proposed Plan
Accept FS |
Revise FS
Stale Comments
1 Hold Public Meeting
PuWtc Comment
Respond to
Comments
'
ROD
A Baseline Risk A Qnft R| A Comparative Evaluation A Draft FS*
j Assessment- 1 * of Alternatives *
A Envlronmantal
' Evaluation Report
A Rermdlal I
" Objectives Memo \ Seraaolnfl Memo
Development and
Alternative*
Detailed
of Alternatives
-------
Technical Technical assistance available to the RPM throughout the major tasks of the
Assistance RI/FS was presented in Table 1 -1 of this guidance. Additional sources may
also be found in Appendix A and throughout Chapters 2 through 8, especially
in the "Resources Available to the RPM" section of each chapter.
Oversight Records
and Documentation
Preservation of
Records
Under most AOCs, PRPs must preserve all records, documents, and
information of any kind relating to the performance of work at the site for a
minimum of 10 years after commencement of construction of any remedial
action. After the 10-year period, the PRPs should offer the records to the
lead agency before destroying them. This matter is covered in the Model
AOC.
Decision
Records
Records of particular interest include PRP administrative orders, technical and
analytical documentation, and actions or communications either between PRPs
or between PRPs and a lead agency that involved or lead to a decision.
Document control through consistent maintenance of accurate and complete
records, field logs, and laboratory reports should be a key element of all
recordkeeping practices.
Documentation
Accurate documentation is important for use in cost recovery actions and in
remedy challenges to maintain consistency with NCP requirements. EPA's
oversight responsibilities include maintaining records and other project
documentation. The major repositories for maintaining project records are the
site file and the Administrative Record File. The following terminology is
useful in discussing the documentation activities associated with CERCLA
sites:
• Site File - EPA's master filing system, which contains all documents
relating to a site. A summary of information about the site file is
contained in Figure 2-2 of this guidance.
• Administrative Record File - A subset of the site file, which contains
those records that may form the basis of the selected response action. A
summary of information about the Administrative Record File is contained
in Figure 3-3 of this guidance.
• Cost Recovery Documentation - The process of accounting for costs
incurred by EPA that PRPs agree to reimburse under or in connection with
an oversight contract or AOC. A summary of information about costs and
categories of expenditures is contained in Figure 3-2 of this guidance.
• Activity Reports - The tools that are used by the oversight team to
document PRP field activities may include all or some of the following
activity reports:
- Field activity report - assists in identifying the critical field activities
while also providing a convenient means to document these activities
(see checklists in Volume 2, Appendices B and C, on the documenta-
tion of sampling and well drilling procedures to assist the RPM);
1-26
-------
Field logbook - either records facts that are not necessarily included in
the field activity report (such as pertinent conversations, explanations
of changes, etc.) or substitutes for the field activity report; and,
- Photographic or video log - illustrates the critical field activities (such
as sampling and well construction).
Additional information on activity reports is contained in Chapter 4 of this
guidance.
• Laboratory Reports - For all fixed, mobile, and local laboratories (used by
either EPA or PRPs), specific reporting requirements should be maintained
including chain-of-custody forms and analytical results. These reports
should specify the QA procedures and QC parameters (e.g., precision,
accuracy, representativeness, completeness, and comparability) that will be
met during the testing analysis. Additional information on the use of
laboratories is contained in Chapter 4 of this guidance.
• Progress Reports - The oversight assistant and PRP may be required to
submit reports (usually monthly) to the RPM describing all field activities
conducted since the last report, deliverables submitted since the last report
and their review progress, and all QA/QC checks or audits conducted since
the last report. Additional information on project status reports is
contained in Chapter 3 of this guidance.
Meetings
The oversight team should meet regularly with the PRPs and their field
supervisory personnel to discuss performance, status, problems, and new
discoveries that may develop during the required activities. Some meetings
between the PRPs and the lead agency should be mandatory and required in
the AOC. However, other meetings may be requested by either the PRPs or
the lead agency at any time. Generally, meetings are held before the initiation
of work, periodically during field and other activities, prior to each major
task, and following PRP submittal of draft deliverables. Meetings should be
held to provide direction, informally resolve problems, discuss changes in the
scheduling of activities, or identify deficiencies. The frequency of meetings is
subject to Regional discretion in response to PRPs' performance and work.
Examples of some of the types of meetings that the RPM should conduct are
provided in the following sections.
Internal
Scoping
Meeting
A meeting with members of the oversight team, prior to negotiations with the
PRP, to discuss the understanding of the site and identify any specific
concerns of EPA, State, and technical experts. (See Chapter 2 of this
guidance.)
Kickoff A meeting of the RPM, oversight assistant, and members of the Technical
Meeting with Support Team (TST) with the PRPs' project manager and supervisory
PRPs personnel (including contractors) to discuss respective roles, responsibilities,
schedules, and procedures. (See Chapter 3 of this guidance.)
1-27
-------
EPA A series of meetings to discuss specific concerns during project scoping,
Management review of the PRP Work Plan, review of the draft RI (and documents
and State produced during the RI such as EPA's Baseline Risk Assessment, treatability
Review studies, and identification of ARARs), and review of the FS. (See Chapters 2
Meetings through 8 of this guidance.)
Project Status
Meetings
Regular meetings with the oversight assistant and members of the Technical
Support Team (TST) to discuss the performance, status, and problems that
develop during each task of the RI/FS. (See Chapters 2 through 8 of this
guidance.)
Submittal and
Review of
Deliverables
PRPs submit three categories of deliverables. The first are those that need
EPA approval before work can either begin or continue. The second category
includes interim deliverables that the lead agency has the option to review.
These deliverables allow EPA to receive ongoing reports throughout the
oversight process and assure EPA that the work being performed meets the
terms and conditions of the AOC. These interim deliverables are generally the
components of a larger draft or final report and allow EPA to identify
potential problems regarding the collection or interpretation of data before
submission of the entire report. The third category of deliverables involves
review but no approval from the lead agency. These include PRP progress
reports. The purpose of these deliverables is to keep the project on schedule
within predetermined timeframes. Figure 1-6 gives examples for each of the
three categories of RI/FS deliverables as recommended by the Model SOW in
PRP-lead RI/FSs.
Deliverables (including reporting requirements) beyond those required by
EPA's RI/FS Guidance are appropriate [because of the difference in the
relationship between EPA and the entity conducting the work in a Fund-
versus PRP-lead RI/FS.] RPMs should point out to PRPs that different
deliverables are required in the Model SOWs for Fund- and PRP-lead RI/FS.
The deliverables for a given PRP-lead site are specified in the AOC and its
attached SOW.
Project Plans,
Draft and
Final Reports,
and Interim
Deliverables
The Model AOC provides that PRPs submit all Project Plans (Work Plan, SAP,
and HSP), draft and final reports, and interim deliverables to both the lead
and support agency for review. The reports should meet the requirements
described in EPA's RI/FS Guidance and Risk Assessment Guidance.
Specifically, these reports must conform to the format and content
requirements. Deficiencies in the report format or content must be noted so
the PRP can make the appropriate revisions. In general, the RPM should
contact the PRPs' project manager, rather than the PRPs' contractor, in the
event that the RPM disagrees with any aspect of the report(s).
Note: EPA should encourage PRPs to select a single point of contact when
dealing with EPA on matters concerning oversight of technical
concerns. This contact point can be mandated in the AOC and might
be a PRP or an independent PRP representative. The use of a single
contact has proven significantly to reduce communication problems
between EPA and PRP groups.
1-28
-------
Figure 1-6. Categories of RI/FS Deliverable*'
Examples of PRP Deliverables for EPA Review and Approval
• Work Plan and Sampling and Analysis Plan (SAP)
• Technical Memorandum on Modeling of Site Characteristics
• Technical Memorandum Listing Hazardous Substances and Chemicals of Concern
• Technical Memorandum Describing Exposure Scenarios and Fate and Transport Models
• Technical Memorandum Listing Toxicological and Epidemiological Studies
• Plan for Evaluating Environmental Risk
• Ecological/Environmental Assessment
• Baseline Risk Assessment (if begun by PRPs prior to June 21, 1990)
• Draft Remedial Investigation (RI) Report
• Technical Memorandum Identifying Candidate Technologies
• Treatability Testing Work Plan and SAP
• Treatability Study Evaluation Report
• Technical Memorandum Summarizing Results of Comparative Analysis of Alternatives
« Draft Feasibility Study (FS) Report
• Final RI Report
• Final FS Report
Examples of Deliverables for EPA Review and Comment
• Site Health and Safety Plan (HSP)
• Preliminary Site Characterization Summary
• Treatability Testing Statement of Work
• Treatability Study Site HSP
• Technical Memorandum Documenting Revised Remedial Action Objectives**
• Technical Memorandum on Remedial Technologies, Alternatives and Screening
Examples of Deliverables for EPA Review
• Progress Reports
Extracted from OWPE's 'Model Statement of Work Conducted by PRPs,' OSWER Directive No. 9835.8, June 2, 1989
Note: If EPA conducts the Baseline Risk Assessment, this memorandum should be reviewed and approved by EPA.
1-29
-------
PRPs may be requested to submit revisions of draft Project Plans and reports
if they do not meet the criteria in the RI/FS Guidance, AOC, or Work Plan.
Poor quality reports are a primary cause for delay in the RI/FS and often
result in increased oversight costs. To avoid delays and unnecessary oversight
costs, the RPM should meet with the PRPs prior to their submittal of any draft
Project Plan or final report to ensure that the report will not be considered
incomplete or of unacceptable quality. The RPM must also verify that the
draft and final reports are submitted in a timely manner consistent with the
schedule of deadlines for deliverables included in the AOC.
Oversight of Performing oversight of QA/QC activities assures the lead agency that the
QA/QC work conducted by PRPs is done properly and that the data collected are of
Activities sufficient quality, both to support decisions regarding the method of cleanup
and to stand up in court. The purpose of the QA program is to provide
detailed plans to guide the work and a mechanism to monitor the quality of
that work. The purpose of QC is to take samples and introduce them into a
measurement system at any time during the site analysis phase of the RI/FS.
Goals of
QA/QC
The goals of QA/QC are:
• Precision - A measurement of the reproducibility of measurements
compared to their average value. Precision is measured by the use of
splits, replicate samples, or co-located samples and field audit samples.
• Accuracy - This measures the bias in a measurement system by comparing
a measured value to a true or standard value. Accuracy is measured by the
use of standards, spiked samples, and field audit samples.
• Representativeness - This is the degree to which a sample represents the
characteristic of the population being measured. Representativeness is
controlled by defining sample protocols and adhering to them throughout
the study.
• Completeness - This is the ratio of validated data points to the total
samples collected. Completeness is achieved through duplicate sampling
and resampling.
• Comparability - This is the confidence that one data set can be compared
to another. Comparability is achieved through the use of standard methods
to control the precision and accuracy of the data sets to be compared by
use of field audit samples.
QC Audits
and Sampling
The types of QC samples available to assist the RPM are included in
Figure 1-7. The types of QC audits that should be used by RPMs to document
the implementation of adequate QA measures include:
• Performance Audit - This audit is based on samples with known
concentrations and determines whether the analytical measurements system
is operating within established control limits.
• Technical System Audit - This audit evaluates field operations against the
approved protocols and QA plans.
1-30
-------
Figure 1-7. Types and Uses of QC Samples
Field Blank
Field Rinsate Blank
Field Rinsate
Reagent Blank
Calibration Check
Standard
Spiked Extract
Spiked Sample
Total Recoverable
Laboratory Control
Reextraction
Split Extract
Field Splits
Field Duplicate
Field Audit
(Trip Blank)
External Laboratory
Audit
Internal Laboratory
Audit
Split Sample
Exposed during sampling to detect accidental or incidental
contamination.
Sample collected after passing distilled water over the sampling
preparation apparatus after cleaning, to check for residual
contamination.
Sample collected after passing distilled water over the sampling
preparation apparatus after cleaning, to check for residual
contamination.
Organic-free water sample analyzed as a routine sample to check for
reagent contamination.
A standard material to check instrument calibration.
A separate aliquot of extract to which a known amount of analyte is
added to check for extract matrix effects on the recovery of added
analyte.
A separate aliquot of sample having an appropriate standard reference
material added to check for sample and extract matrix effects on
recovery. (It is not recommended to spike samples in the field.)
A second aliquot of the sample which is analyzed by a more rigorous
method to check the efficiency of the protocol method.
A sample of known concentration (and known to the laboratory)
carried through the analytical procedure to determine overall method
bias. (These samples are also known as internal laboratory audits or
control audits).
A reextraction 9f the residue from the first extraction to determine
extraction efficiency.
An additional aliquot of the extract which is analyzed to check
injection and instrument reproducibility.
The prepared sample is split into two or more portions to provide blind
duplicates for the analytical laboratory to indicate within-batch error.
(A third may be sent to a referee laboratory to determine
mterlaboratory precision. Such samples are often called replicates).
An additional sample taken near the field sample to determine total
within-batch measurement variability. (Sometimes called a co-
located sample).
A sample of known concentration that is taken to the field with the
sampling crew, and sent through the sample preparation facility to the
laboratory with the field samples to detect bias in the entire
measurement.
A sample of known concentration sent directly to the laboratory for
analysis.
The analyte concentrations are unknown to the laboratory. This type
of sample is used to estimate laboratory bias and, external QC of, the
laboratory.
A sample of well-characterized media whose analyte concentrations
are known to the laboratory to be used for'internal laboratory QC.
An additional sample analyzed by Environmental Services Division
(ESD) to provide an independent check of the PRP chosen laboratory.
1-31
-------
• Data Quality Audit - This audit evaluates the documentation of data quality
indicators and determines whether methods and Standard Operating
Procedures (SOPs) in the QA plan were followed and satisfied the data quality
objectives.
• Management System Audit - This audit evaluates the laboratory certification
program, QA in field operations, QC in the certified laboratory, and
corrective actions of the entire program.
QC of sampling activities should ensure that
• A sampling protocol on the sampling objectives, sampling procedures, and
analytical strategies is used;
• Sampling devices must not alter the sample in any way;
• Field QC samples are collected, stored, transported, and analyzed in an
identical manner to those for site samples;
• Standard collection procedures surrounding the location of the sample are
used; and
• Samples are preserved between collection and analysis.
Summary of
the Oversight
Process
This chapter describes the professionals and resources available to an RPM in
order to perform oversight of an RI/FS conducted by a PRP. The RI/FS should
take place in accordance with all EPA regulations, guidance, and policy regardless
of who conducts the RI/FS. The data are collected to identify site risks, develop
alternatives, select a preferred remedial alternative, and write a ROD, as
summarized in Figure 1-8, whether EPA, the State, or the PRP assumes the lead.
The major tasks in performing RPM oversight include the following:
• Obtain needed technical, administrative, and legal assistance before
negotiations with a PRP;
• Document all remedial decisions and keep complete records for all field and
non-field activities;
• Contact, as often as needed, all involved parties;
• Develop and keep to a workable schedule for activities and deliverables;
• Ensure that all remedial activities satisfy EPA's QA/QC concerns; and
• Notify PRPs and, if necessary, EPA counsel of noncompliance.
1-32
-------
Figure 1-8. Overview of the Process
FROM:
• Preliminary
Assess ment
• Site Inspection
• NPL Listing
PRE-fll/FS
NEGOTIATION SCOPING
Chapter 2
SITE '
CHARACTERIZATION I
I
BASELINE RISK
ASSESSMENT
TREATABILITY
INVESTIGATIONS
L
SCOPING OF THE RI/FS
Chapter 3
ChtptorS
DEVELOPMENT AND SCREENING
OF ALTERNATIVES
> DETAILED ANALYSIS
I OF ALTERNATIVES
I
Ch*X»r7
TO:
Remedy Section
Record d Decaion
Remedial De»ign
Remedial Action ,
Specifically, how the RPM uses the available personnel and resources to perform
rs major task of the RI/FS is the focus of "™
1-33
-------
CHAPTER 2
PRE-RI/FS NEGOTIATION SCOPING
2.1 INTRODUCTION
Pre-RI/FS negotiation scoping (or "pre-scoping") is the initial task performed
by the RPM with the help of a support contractor. Although usually there is no
enforceable agreement with the PRP at this time, the RPM needs to begin
developing a site-specific Statement of Work (SOW) that will be attached to the
Administrative Order on Consent (AOC). This pre-scoping usually begins several
months before a Special Notice Letter (SNL) for an RI/FS has been sent out to
the PRP. Pre-scoping usually is completed when the RPM:
• Visits the site to identify the conditions of the site, the effects of
contaminants, and the potential areas of concern;
• Obtains a general understanding of the site using the existing information,
and determines the general types of data needed to make a remedy selection
decision
• Utilizes a Technical Support Team (TST) to assist on the RI/FS and in
executing the tasks of future PRP oversight; and
• Generates a preliminary site-specific SOW to be included in the AOC.
Note: As a reminder, the terms and conditions governing RI/FS activities may
also be specified in a CD or a UAO; however, the AOC is the preferred
settlement document. In this guidance, AOC, CD, and UAO are treated
as synonymous.
2.2 PURPOSE AND GOAL FOR THE RPM
During pre-scoping, the RPM needs to gain a general, not detailed, understanding
of the site conditions using existing information. This understanding will
facilitate later negotiations with the PRPs. The RPM should determine what
additional general and site-specific information will be needed in order to make
a remedy selection decision. The RPM must ensure that this information will be
obtained during the RI/FS process. The RPM needs to know what the site looks
like, what data exist for the site, what is the extent of the contamination, what
kind of expertise is needed on the TST, and what specific data requests should
be included in the SOW and AOC.
As a guide for developing the site-specific SOW, the RPM should apply the
"Model Statement of Work for a Remedial Investigation and Feasibility Study
Conducted by Potentially Responsible Parties" (OSWER Directive No. 9835.8,
June 2, 1989), and any Regional Model SOW or Model Work Plan. In some cases,
Regions may prefer to use a Model Work Plan instead of a SOW. By conducting
meetings with the support contractor and members of the TST, the RPM should
gain the knowledge needed to determine if the SOW satisfies the known needs of
the site, including any concerns specific to the site, and if the SOW addresses
items not appropriate to the site.
2-1
-------
The site-specific SOW will be included in the negotiated AOC. As a guide for
developing an AOC, the RPM should reference the "Model Administrative Order
on Consent for CERCLA Remedial Investigation/Feasibility Study" (OSWER
Directive No. 9835.3-1 A, January 30, 1990), and any Regional Model Order. The
AOC establishes what is expected of the PRP throughout the RI/FS process.
Under a revised policy, EPA will not enter into AOCs under which the PRPs
perform the risk assessment component of the RI/FS for new risk assessments
effective June 21, 1990. (See "Performance of Risk Assessments in Remedial
Investigation/Feasibility Studies (RI/FSs) Conducted by Potentially Responsible
Parties (PRPs)" (OSWER Directive No. 9835.15, August 28, 1990.)) The AOC
should reflect this development.
The goal of pre-scoping is for the RPM to develop a site-specific SOW, and to
use the information gathered to determine the RI/FS scope and to plan for the
entire RI/FS. The RPM should avoid dealing with specific details of the site;
they will be addressed in the post-AOC scoping task and beyond. By performing
pre-scoping, the RPM will have a better understanding of the site character-
istics. The RPM should gain a general idea of what information is needed, what
activities should be performed, and, therefore, what is expected of the PRP
throughout the RI/FS process.
2.3 TIMEFRAME
Once the support contractor has been procured, the remaining activities in pre-
scoping should take a short period of time (for example, one quarter). The
timeframe for pre-scoping will be dependent on the timeframe for activities
among members of the oversight team that must be coordinated, the site
complexity, and the availability of existing information.
2.4 HOW THE RPM PERFORMS "PRE-SCOPING"
The Model SOW and Model AOC contain specific tasks that need to be performed
throughout the RI/FS process. In order to gather the background data for
overseeing these tasks, the RPM should, at a minimum, perform the following
activities. These activities can reduce the time spent to prepare for settlement
negotiations, improve the likelihood of developing a usable site-specific SOW,
and help to negotiate an AOC:
• Hire a support contractor;
• Begin coordination with State, Trustees and other Regional EPA divisions;
• Visit the site;
• Develop a general site management strategy;
• Incorporate EPA's program goal for the remedy selection process;
• Review the PRP's SOW; and
• Provide assistance to ORC in negotiating an AOC.
In addition, the RPM should assess the need for several ongoing activities. Each
of the RPM's activities are discussed in the following sections.
2-2
-------
Support Hire a support contractor for technical assistance that includes the following:
Contractor
• Start the procurement process early. First, the RPM should consider TES
contractors, then ARCS contractors, State representatives, or designees
from another Federal agency.- The RPM should assure that the contractor
period of performance covers the entire RI/FS process and allows for
unexpected delays that can occur throughout the RI/FS.
Note: The contractor used for technical support should be checked for any
conflict of intent, given a detailed work assignment, and, if acceptable,
be the contractor secured for oversight of the entire RI/FS process.
• Review the prior work of the various support contractors available to the
RPM. Check with other RPMs who have worked with these contractors.
• Request that the contractor gather existing site data. See Figure 2-1 for a
list of some of the more important data sources that the support contractor
should check; see Figure 2-2 for a site file -- established after the site's
NPL placement and in which existing site data should be available --
overview. Typical existing data include the following:
- Aerial and historical photographs;
Geophysical surveys;
USGS Topographic Maps;
Test cores;
- USFWS National Wetlands Inventory Maps;
- Well logs;
Soil Conservation Service soil surveys; and
Newspaper clippings.
• Have the support contractor develop a general conceptual model for the
site. This model should contain a diagram and an explanation of site
surface and any geological (hydrogeological) information, source areas, and
potential exposures. (See "Getting Ready, Scoping the RI/FS" (OSWER
Directive No. 9355.3-01FS1, November 1989), for an example of a
conceptual model.)
Coordination Begin coordination with State, Trustees, other Regional EPA divisions and
request assistance from a TST to:
• Assure that the PRPs gather all necessary information pursuant to the
Work Plan, as directed by the SOW; contact other EPA divisions (including
Regional Counsel), the State, and Natural Resource Trustee and ascertain
whether, in addition to the general requirements of the Model SOW,
requirements associated with the site particulars need to be added.
2-3
-------
Figure 2-1. Useful Sources of Existing Data
Federal Sources of Existing Data*
State Sources of Existing Data
Local Sources of Existing Data
Preliminary Assessment/Site
Inspection (PA/SI)
Hazardous Ranking Scoring (HRS)
documentation
Agency for Toxic Substances and
Disease Registry (ATSDR) health
assessment
PRP search — Section 104(e)
letters — waste-in list — data requests
to the PRP
Records on removals and disposal
practices
Permits for discharges — Toxic
Release Inventory System (TRIS)
National Pollutant Discharge
Elimination System (NPDES)
• Prior Contract Laboratory Program
(CLP) work
RCRA manifests, notifications, and
permit applications and Section 3007
information requests
EPA databases (see Appendix A)
• EPA-equivalent agency
• Public health agency
• Planning board
• Geological Survey
• Fish and Wildlife Service
• Historic Preservation Office
• Natural Resource Department
• Public library
• Chamber of Commerce
• Public health department
• Planning board
• Town/city hall or court house
• Water authority
• Sewage treatment facility
• Previous site employees/management
• Well drillers
• Residents near site
• Universities (information on local
areas)
• Historical societies
• Newspaper files
* Other Federal agencies may also be able to provide data. These are noted on page 2-5.
-------
Figure 2-2. Overview of the Site File
Purpose:
Location:
Contents:
Access:
The site file contains an accurate and complete documentation of all site
activities, including records pertaining to the administration of the
projects, reports, decision documents, and recoverable costs.
The site file is maintained in the Regions. For State-lead sites, the site
file is kept in the State file location.
PRP reports, oversight reports, oversight assistant reports, field activity
reports, progress reports, and laboratory reports.
Each Region has procedures for opening, compiling, maintaining, closing,
and storing the site file.
• Determine which characteristics of the site will require technical expertise
to evaluate. This may include risk and exposure to human health and
environment; soil contamination, leaching, and remediation; complex
groundwater systems; topographic limitations; air emissions; mixtures of
contaminants; sensitive or protective land use; preservation of natural
resources and threatened or endangered species; State concerns more
protective than Federal levels; and adverse impacts to the local economy.
• Choose appropriate TST members to address those areas of concern. These
may include personnel from the following resources:
- EPA Regional offices
— Environmental Services Division (ESD)
-- Environmental Response Team (ERT)
— Waste Management Division (WMD)
— Water Division (WD)
-- Air Division (AD)
— Public Affairs
-- Office of Regional Counsel (ORC)
- EPA National offices
— Office of Research and Development (ORD)
~ National Enforcement Investigations Center (NEIC)
— Office of Enforcement, Superfund Division
- Other Federal agencies
— ATSDR
— USCOE
— United States Geological Survey (USGS)
— United States Fish and Wildlife Service (USFWS)
— U.S. Department of Agriculture (USDA)
— NOAA
-- DOD
— DOE
2-5
-------
— Health and Human Services (HHS)
-- Department of Justice (DOJ)
- States
-- EPA-equivalent agency
-- State Geological Survey (SGS)
— State Fish and Wildlife Service (SFWS)
-- State Historic Preservation Office (SHPO)
Contractors
— TES Contractors
-- Lead-agency approved contractors.
Note: The TST will, at a minimum, require expertise in the following
disciplines: engineering, geology, hydrogeology, toxicology, ecology,
and meteorology. The TST also may require legal counsel from EPA
(ORC and OE - Superfund Division) or DOJ. After choosing the
experts, the RPM should have them identify any specific requirements
needed in the SOW.
• Discuss the site in meetings with Regional managers and staff and with
members of the TST to gain a general site understanding, including
specific concerns of the Region/State and TST, which should be addressed
in the site-specific SOW. The participants at these meetings will develop a
general site management strategy to be used as a guide for planning future
RI/FS activities.
Site Visit Visit the site and nearby area with the support contractor and necessary
members of the TST to accomplish the following:
• Observe the physical conditions and kinds of contamination that exist at
the site. See Figure 2-3 for a checklist of physical conditions on which the
RPM should focus. See Figure 2-4 for examples of site contamination.
General factors that are critical to planning future RI/FS activities include:
- Size of contaminated area (acres);
- Present land use;
- Surrounding area/sources/pathways;
- Prior activities at site;
- Number of known PRPs;
- Proximity to populations both human and environmental; and
- Proximity to sensitive areas.
Also, if information is available:
- Owner(s) and operators of site (existing/prior);
- Generators of waste; and
- Transporters of waste.
• Modify the SOW to address specific site needs. The RPM, with contractor
support, must identify general information needs, areas where additional
information will be needed (and how these areas will be covered in the
site-specific SOW), and areas where additional data will not be needed.
2-6
-------
Figure 2-3. Checklist of General Site Conditions (Page 1 of 2)
Examine
Identify
Geology
Soil deposits (types, uses, contamination effects), bedrock
(types, alterations, contamination effects), any remaining
surface material (piles or mounds)
Surface contamination
(subsurface contamination will likely be identified
based upon existing data; a site visit will probably
not provide evidence of subsurface contamination)
Hot spots of contamination
Limitations on site access
Contaminant pathways
Topography
Landforms
Erosion patterns
Natural resources
Media contaminated
Limitations on site access
Locations for institutional controls
Location of natural barriers to migration of contami-
nants
Migration pathways off site
Meteorology
Effects of current weather
Prior weather conditions (from existing data)
Extreme weather conditions (hurricane, tornado)
Flooding
Aridness
Hot or cold periods
Wind direction, if necessary
Land Use
Residential
Industrial
Agricultural
Recreational
Floodplain/wetland
Lands administered by Federal, State, or local governments
Media contaminated
Exposure routes
Locations for institutional controls
Limitations on site access
Location of natural and manmade barriers
Migration pathways off site
Vegetation
Plant communities (types, use, contamination effects)
Threatened or endangered species
Protected areas and sensitive ecosystems
Effects of contamination (on vegetative strata, floral
diversity, and food production)
Threatened or endangered species
Hot spots of contamination
Placement of institutional controls or
natural barriers
Migration pathway off site
-------
Figure 2-3. Checklist of General Site Conditions (Page 2 of 2)
Wildlife
Examine
Terrestrial and aquatic habitats, including bird
refuges or protected areas
Identify
Effects of contamination (on wildlife habitats
or migratory areas)
Threatened or endangered wildlife
Transport of contamination off site by wildlife
Locations for institutional controls
Limitations on certain remedial actions
Water Resources
Water collection areas
Surface waters (including wetlands)
Floodplain
Location of all potable water supplies (drinking
and industrial usage)
Availability of alternate water supplies
Location of septic tanks
Effects of contamination on standing and
flowing water (i.e., fresh water, salt water, or
brackish water)
Users of the water resources
Limits on locations of institutional controls
Air Quality
Areas with unusual or foul odors
Prevailing wind direction
Precautions for site workers
Receptors when wind direction changes
Contamination transport through air
Man made
Features1
Road access
Railroads
Power lines
Pipelines
Water wells
Bridges
Prior environmental assessment (EA) or
environmental impact statement (EIS)
Effects of contamination on manmade features
Limitations on site access
Limits on locations for institutional controls
Precautions for site workers
Physical limitations on certain remedial
actions
1 After the site visit, the KPM should contact the appropriate agency responsible for regulating the construction or maintenance of this feature.
-------
Figure 2-4. Basic Description of Contamination
Media of Concern
Common Types of
Site Categories
Common Sources
Common Pathways
Basic Receptors
K>
I
VO
Ambient air
Containerized waste
• Ground water*
Sludge and slurry
Soils (surface and
subsurface, water and
vapor)**
• Surface water
Asbestos
Battery/lead rccyclers
Dioxins
Landfills
- Industrial
- Municipal
Metals
Metals/organics
Mining wastes
Mixed waste /
radioactive
Multi-source ground
water
Munitions/explosives
Organics
PCBs
Pesticide manufacturing
Plating metals
Solvents
Wood preservatives
Buildings/storage
areas
Containers/drums
Dry wells
Holding tanks
Industrial/chemical
manufacturing
processes
Waste pits/pools
Landfills
Human
• Ingestion of soils
• Ingestion of
groundwater
• Ingestion of fruits and
vegetables
• Ingestion of fish and
meat
• Inhalation of vapors
• Inhalation of
particulates
Terrestrial
« Contact with surface
water, vegetation, air,
and soil
Aquatic
• Contact with surface
water and sediments
• Industrial workers
• Recreational users
• Residents
• Vegetation
• Wildlife
* Without prior knowledge or well data, this will not be determined at this lime.
** Cannot be determined by site visit only.
-------
Site After performing these activities, the RPM (with contractor support) should
Management devise a general site management strategy to be used for planning purposes.
Strategy Devising this strategy should not be time consuming, but should include a
preliminary list of site objectives. The site strategy may define the following
elements:
• Surface and subsurface (if known) extent of contamination and
contaminants of concern affecting soil, surface water, sediment, air, and
groundwater and subsurface structures (if known), plus the amount of
solid wastes, liquid wastes, and sludges.
• Exposure routes and receptors that may result in exposure concentrations
greater than the ARARs, greater than 10"6 excess cancer risk, or a hazard
quotient greater than 1.
• Site remediation goals based on ARARs (including maximum contaminant
levels (MCLs)), risk-based concentrations, or nonpromulgated Federal or
State criteria, and advisories (i.e., guidance to-be-considered (TBCs).
• Initial site data needs and potential areas of concern, such as site
characteristics; media affected; conditions of contaminants (that is, source,
type, pathways for transport, and receptors) posing present and potential
risks; and number of operable units, if necessary.
Note: The oversight team (RPM, Regional experts, TST, States, and Trustees)
should identify any data gaps in the existing site data. Some of the
data gaps will be filled during site characterization. Other data gaps,
however, may be so large that the PRP will need to perform a limited
field investigation even before beginning to develop a Work Plan. The
results of this field investigation should be included in post-AOC
scoping during the development of the PRP's Work Plan and SAP.
Program Goal
Consider EPA's program goal, management principles, and expectations from
the NCP in the site management strategy, and during future RI/FS and
selection of remedy activities. (See Figure 2-5.)
PRP SOW After providing a Model SOW to the PRP for use as a guide, review the PRP's
SOW or Work Plan for accuracy, completeness, and site-specific information,
if available, regarding the proposed activities.
Note: The availability of site information at the time of pre-scoping will
determine the level of detail in the SOW. At sites where little
information exists, site specifics will not be included until the post-
AOC Work Plan. (See Chapter 3.)
The AOC
Assist ORC attorney to negotiate and sign an AOC with the PRP. The Model
AOC (OSWER Directive No. 9835.3-1 A, January 30, 1990) should be used as a
guide to ensure completeness of the negotiated AOC. The AOC should
describe: general and site-specific activities to be performed, to the extent
known; roles and responsibilities of those who will perform these activities; a
schedule the PRP and EPA will follow during the RI/FS; and deliverables the
PRP is expected to submit to EPA; and procedures for notifying PRPs and, if
2-10
-------
Figure 2-5. Program Overview
Program Goal
The national goal of the remedy selection process is to select remedies that will be protective of
human health and the environment, maintain protection over time, and minimize untreated waste.
Program Management Principles
Sites should be remediated in operable units when early action is necessary, or phased analysis
or response is necessary to expedite cleanup.
Operable units should be consistent with, and not preclude, implementation of the final remedy.
The scope and complexity of the site should be reflected in the data needs, evaluation of
alternatives, and documentation of the selected remedy.
Program Expectations
• Principal threats posed by a site will be treated, if practicable, with priority placed on treating
waste that is highly toxic, highly mobile, or liquid.
• Engineering controls will be utilized for wastes posing relatively low long-term threat, or where
treatment is impracticable.
• Institutional controls will be utilized to supplement engineering controls, as appropriate, and
should not substitute for active response measures as the sole remedy.
• Contaminated ground waters will be returned to beneficial uses whenever practical, within a
reasonable time, given the particular circumstances of the site.
• A combination of treatment, engineering, and institutional controls will be used, as appropriate,
to protect human health and the environment.
• Innovative technologies will be considered when such technologies offer the potential for
superior treatment performance, fewer or less adverse impacts than other approaches, or lower
costs for performance similar to that of demonstrated technologies.
Note: Source — The National Contingency Plan, 40 CFR 300.430(a) (1)
2-11
-------
necessary, EPA counsel of noncompliance and for dispute resolution. (See the
Enforcement Project Management Handbook for details on RI/FS
negotiations/settlements.)
Ongoing Throughout the pre-scoping process, the following ongoing activities could be
Activities performed:
• Conduct PRP search activities. The RPM should coordinate the conduct of
PRP searches into the planning of future RI/FS activities. Since additional
PRPs can be identified at any time during the RI/FS process, the activity
plans should be flexible enough to allow activities to be changed with only
a minimum amount of advance warning. (See the Enforcement Project
Management Handbook for details on RPM activities during the conduct
of a PRP Search.)
• Consider the need for performing interim remedial or removal actions to
stabilize the site or address a short-term threat while a final remedial
solution is being developed. The RPM must be able to review the existing
site information and look for clues to suggest that an interim or removal
action will be required. Such actions may be needed to prevent
contaminants from migrating off site. Communications with other
Regional technical experts, States, local governments, and the public will
help the RPM locate these clues.
• Consider dividing the site into operable units. The RPM may determine
that acquiring specific information on one operable unit (that is, one
particular media or source) may be helpful in planning activities for the
entire site. Although the breakup of a site into operable units may extend
the time to conduct an RI/FS, it may be necessary to focus the
investigation on one operable unit in order to gather the information
necessary to address all future media of concern.
Note: The process of dividing a site into operable units is determined by each
Region. The RPM should consult their Regional managers for
assistance on designating operable units for a site.
2.5 FOR FURTHER INFORMATION
Current • National Contingency Plan (NCP), 40 CFR 300.430(a).
References
• Guidance for Conducting RI/FS Under CERCLA, OSWER Directive No.
9355.3-01, October 1988, (See Appendix A).
• Getting Ready, Scoping the RI/FS, OSWER Directive No. 9355.3-01FS1,
November 1989.
• Interim Guidance on PRP Participation in RI/FS, OSWER Directive No.
9835.1a, May 16, 1988.
• Enforcement Project Management Handbook, OSWER Directive No.
9837.2-A, January 1991.
• Model Statement of Work for RI/FS Conducted by PRPs, OSWER
Directive No. 9835.8, June 2, 1989.
2-12
-------
• Model Administrative Order on Consent for RI/FS, OSWER Directive No.
9835.10, January 30, 1990.
• Interim Guidance on Notice Letters, Negotiations, and Information
Exchange, OSWER Directive No. 9834.10, October 19, 1987.
• Potentially Responsible Party Search Manual, OSWER Directive No.
9834.6, August 1987.
Future
Resource
• Annotated Technical Reference for Hazardous Waste Sites (OWPE)
(Projected for Publication in 1991).
2.6 RESOURCES AVAILABLE TO RPMS
Personnel • Support contractor.
• Regional staff (TST, ORC, ESD).
• States (Environmental Agency, Health Department, SGS, SFWS, SHPO).
• Experts (ORD, other Federal agencies, counties and local sources,
universities).
Documents
• Model SOW.
• Model AOC.
Data
• Existing site data.
• Region's reference library for similar sites.
• RODs database.
• Chronological logbook of meetings and site visit.
2.7
HELPFUL HINTS FOR THE RPM
During pre-scoping, the RPM should anticipate causes for potential project
delays, including the following:
• The quality of the support contractor's work, which will determine if this
contractor is to be used as the oversight assistant for the entire RI/FS;
• Areas where limited information exists, but-for which data will be needed
before performing future tasks of the RI/FS;
• Areas of expertise lacking in the TST; and
• Site-specific concerns presented by the TST that have not been included in
the SOW.
2-13
-------
To help minimize the time spent on pre-scoping, the RPM can take the
following actions:
• Use general conceptual models and save specific details for the Project
Plans during post-AOC scoping;
• Tailor the SOW with specific concerns to the extent known (additions or
deletions) from the Regional/State experts and the TST;
• Establish PRP financial and technical qualifications prior to the AOC;
• Provide the support contractor with a well-defined work assignment to
assure good performance of the pre-scoping activities; and
• Record the support contractor's activities and all RPM decisions in a
chronological logbook to prevent duplication of effort and to provide
adequate documentation of activities.
2-14
-------
CHAPTER 3
POST-AOC SCOPING
3.1 INTRODUCTION
Post-AOC scoping is the detailed, site-specific activity planning phase of the
RI/FS during which Project Plans are developed. It occurs after negotiations
are completed and an AOC, with a SOW, has been signed by EPA and the
PRP. Dur;ng post-AOC scoping, the RPM refines the oversight team's site
conceptual model, preliminary site objectives and remediation goals, and
preliminary data needs. This information is used to assist the PRP to develop
a set of usable Project Plans. Based on the evaluation of existing site data, the
RPM reviews, comments on, and approves the Project Plans submitted by the
PRP, with support from TST members and an oversight assistant (probably the
support contractor used during pre-scoping).
3.2 PURPOSE AND GOAL FOR THE RPM
The RPM establishes the foundation during post-AOC scoping for oversight of
the entire RI/FS process. During post-AOC scoping, the RPM, with support
from the oversight assistant and TST members, works with the PRP to develop
the PRP's Project Plans, which include the specific data needs for the site.
The Project Plans establish procedures for PRP performance of field activities,
laboratory testing, and data analysis, in order to characterize the site. Post-
AOC scoping is designed to develop PRP Project Plans - Work Plan, Sampling
and Analysis Plan (SAP), and Health and Safety Plan (HSP) - which must be
approved prior to initiation of field activities. During post-AOC scoping, the
RPM is responsible for developing community relation activities and for
drafting a Community Relations Plan (CRP).
3.3 TIMEFRAME
The PRP Project Plans should be developed within three to six months after
signature of the AOC. Gaps in the existing data and resubmittals may extend
this period. The timeframe for post-AOC scoping will be determined by
extent of existing site data, complexity of site characteristics, kinds of
contaminants, coordination within EPA and with State and Natural Resource
Trustees, completeness of EPA instructions to PRPs, and the ability and
willingness of the PRP to develop acceptable Project Plans.
3.4 HOW THE RPM OVERSEES POST-AOC SCOPING
The PRP Project Plans contain detailed information that summarizes the
existing data. In addition, the plans identify the work to be performed,
including methods, rationale, schedules, data reporting requirements,
equipment verification, and QA/QC concerns.
The PRP Work Plan and SAP expands on the activities identified in the SOW
and includes a site conceptual model, preliminary site objectives (including
preliminary remediaiton goals (PRGs) identified by EPA) and preliminary data
needs. (Each of these items will be compared to its counterpart prepared by
3-1
-------
the oversight team and appropriate revisions to the PRP Work Plan will be
made.) The PRP Work Plan and SAP also includes a documented and detailed
sampling plan, a preliminary list of alternatives, documentation of the need for
treatability studies, whether the PRP satisfies/or will need to obtain a waiver
of ARARs, and procedures to acquire additional data when unknown
contaminants are discovered. (See RI/FS Guidance Appendix B.)
An efficient way to develop an acceptable PRP Work Plan and SAP is to have
a set of Regional Standard Operating Procedures (SOPs) in place before the
scoping phase. These SOPs should describe the types of activities that may be
required, identify the party responsible for performing these activities,
determine the format to document the results of these activities, and assure
that the data collected satisfy EPA's standards for quality data. SOPs may be
modified by site-specific circumstances. At a minimum, SOPs need to address
the following:
• Handling and disposition of RI/FS wastes (that is, soil cuttings, drilling
muds, extracted groundwater, decontamination or cleaning liquids, and
protective clothing);
• Drilling method and sampling method;
• Method for sampling an aquifer;
• Well screen intervals;
• Frequency of sampling intervals during drilling;
• Method of surface water sampling, if necessary; and
• QA/QC protocols for non-contract laboratory program (non-CLP) labs
(local or mobile labs).
The RPM (with appropriate support from the oversight assistant and TST
members) must assure that the PRP develops acceptable Project Plans. The
RPM's activities are specified below.
Note: These activities are based on the assumption that the oversight assistant
during post-AOC scoping is the same as the support contractor used in
pre-scoping. If a new contractor must be procured to assist in
oversight, the RPM needs to issue a separate Oversight Work
Assignment, and receive and approve a separate Oversight Work Plan.
Kickoff Conduct a kickoff meeting with the PRP (including oversight assistant and
Meeting TST members) and, if necessary, conduct a site visit. Prior to the meeting, the
RPM will provide guidance documents to the PRP on the RI/FS process
including roles and responsibilities, activities to be performed, and schedule
for deliverables and activities. (See the references listed in Section 2.5 and in
each RI/FS discussion task of this manual.) During the site visit, the RPM
and PRP representative evaluate the present site condition and discuss conduct
of the future RI/FS activities. A summary of the kickoff meeting is provided
in Figure 3-1.
3-2
-------
Figure 3-1. Summary of a Kickoff Meeting
PURPOSE:
TIMEFRAME:
PARTICIPANTS:
TOPICS:
PREPARATION:
This planning meeting is primarily for ensuring that all parties
are familiar with the full scope of site activities and with EPA
expectations.
The kickoff meeting is conducted soon after the AOC is signed
and prior to the development of the Work Plan or other plans.
The RPM, oversight assistant, and TST members should meet
with the PRP's project manager and other project supervisory
personnel (including appropriate contractors). Regional
management, and State and local officials may also attend.
The kickoff meeting should discuss the following:
administrative matters, such as point of contact; EPA and PRP
roles and responsibilities; project schedule for meetings and
activities; preliminary field procedures, such as site
requirements, locations of work areas, decontamination areas,
clean areas; potential need for emergency equipment; and
deliverables expected of the PRP.
Prior to the kickoff meeting, the RPM should review the
procedures for sampling and well drilling activities for different
types of media. See Appendices B and C in Volume 2 of this
guidance.
Regional
Management
Meeting
Conduct a Regional management meeting to review the following:
• Schedule of activities identifying what will be done, who will do it,
and when will it be done;
• Ways to attain EPA's objectives and goals through PRP performance
of the planned activities;
• Budget for activities, personnel, and resources to be used during the
RI/FS;
• Data to be included in PRP Project Plans - content and
requirements, specific data needs, data accuracy, and data
completeness; and
• Status and level of communication with State representative,
ATSDR, Natural Resource Trustee, and the public.
3-3
-------
State ARARs Request, in writing, that the State prepare and submit a list of State ARARs to
the lead agency for review. The RPM should ask for advance notice of State
ARARs that may be more stringent than the comparable Federal ARARs.
Laboratory Notify the PRPs' chosen CLP facility of how the CLP will be used during
Facility field sampling (either primary testing or oversight of split samples). Verify
the capability of the PRPs' chosen non-CLP facility (qualified mobile or local
laboratory), which must adhere to CLP protocols for sampling. The RPM
should review each laboratory's procedures - personnel, equipment, detection
levels, routine analytical sampling (RAS), and special analytical sampling
(SAS) - to satisfy EPA's QA/QC concerns.
Work Plan After the PRP has submitted any portion of the draft Work Plan for review
Review (for example, site background summary and history of the site; comprehensive
description of activities including methods, schedule, and rationale; a site
conceptual model; and the PRPs' plan to identify the need for additional data
when data gaps or site unknowns exist), meet with the oversight assistant and
TST, to review and verify the following items in the PRP's submittal:
• Remedial action objectives and preliminary remediation goals (PRGs) and
the methods and rationale for meeting these objectives and goals;
• Initial list of remedial alternatives - a range of alternatives, as appropriate,
that includes a no-action alternative, treatment alternatives to reduce the
toxicity, mobility, or volume of waste (see Section 2.5), containment
alternatives which include engineering and institutional controls (see
Section 2.6), or a combination of treatment and containment options; and
Note: A full range of alternatives may not be appropriate for each site. (See
the NCP, 40 CFR 300.430(d).) Screening the initial list of alternatives
for grossly excessive cost, effectiveness, and implementability may
reduce the number of potential alternatives to be considered by the
RPM throughout the RI/FS process.
• Preliminary list of Federal ARARs. (See the preamble to the final NCP,
40 CFR 300.430(a), pp. 8764 - 8766.) During post-AOC scoping, the PRP
should identify only chemical-specific and location-specific ARARs;
action-specific ARARs will usually be identified during the screening of
alternatives in the FS (see Chapter 7).
For further information and guidance on ARARs, see:
- The Preamble to the NCP, 55 Federal Register 8741-66 (March 8,
1990), and 53 FR 51435-47, December 27, 1988.
- "CERCLA Compliance With Other Laws Manual," EPA/540/G-
89/006, August 1988.
- "CERCLA Compliance With Other Laws Manual, Part II. Clean Air
Act and Other Environmental Statutes and State Requirements,"
EPA/540/G-89/009, August 1989.
• Explanation for the candidate technologies to be used during the
treatability studies task. The RPM should access ORD's Superfund
3-4
-------
Innovative Technology Evaluation Program (SITE) to review the
demonstrated and emerging technologies that may be currently available
for certain remedial actions (see Section 2.5) and the Alternate Treatment
Technology Information Center (ATTIC) Database System (see
Appendix A).
PRP Project Review the draft and final PRP Project Plans (Work Plan, SAP, and HSP).
Plans Verify that these PRP deliverables meet EPA's requirements for the Work Plan
and SAP, address site-specific concerns, contain accurate analyses and
conclusions, and include justifications for performing all future field
activities.
Note: The RPM has three choices after reviewing the PRPs' Work Plan and
SAP: approval, disapproval, and approval on condition. Reasons for
disapproval and conditions for approval should be explicitly explained
by the RPM to the PRP.
Cost Recovery
Documentation
Develop an ongoing cost recovery documentation program that contains at a
minimum:
• RPM costs including personnel hours and travel;
• Contractor costs charged to the site;
• Any other direct costs charged to the site (for example, TST activities);
and
• A complete set of detailed records (written documentation) that describe
the oversight activities.
A summary of the cost recovery documentation process is provided in
Figure 3-2.
Natural
Resource
Trustee
Notify the appropriate Natural Resource Trustee by letter to determine the
need for performing a preliminary Natural Resource Survey. This may
include a Federal Trustee - DOI, NOAA, USDA, DOD, or DOE; State
Trustee designated by the Governor; or both Federal and State Trustees.
Note: It is the Trustee's responsibility, not the RPM's, to decide if and when
to conduct a Natural Resource Survey during site characterization.
Community Determine the necessary community relations activities and develop a CRP
Relations with the Regional Community Relations Coordinator. Even though EPA is
responsible for community relations activities, the PRP may participate in such
activities. The RPM (or designee) should inform the public of the content of
the approved PRP Project Plans and proposed site activities.
Administrative
Record File
Open the Administrative Record File when the Project Plans are approved. A
summary of the Administrative Record is provided in Figure 3-3.
3-5
-------
Figure 3-2. Summary of Cost Recovery Documentation
PURPOSE:
Accurate and complete documentation describing oversight site
activities and costs incurred is essential to ensure recovery of EPA's
oversight costs.
LOCATION OF
DOCUMENTATION:
Records and documentation are filed in the EPA active site file that
is maintained in the Region's Record Center or in State active files
in the case of State-lead sites.
CATEGORIES OF
EXPENDITURES:
CERCLA § 104(a) provides that PRPs conducting an RI/FS must agree
to reimburse the Fund for any costs incurred by EPA under, or in
connection with, an oversight contract or arrangement. Recoverable
oversight costs include but are not limited to:
• EPA personnel (salaries and benefits), administrative, and site
travel costs, including associated indirect costs.
• Direct and associated contractor and EPA indirect costs of
contracts or other arrangements for oversight assistance.
• Costs of compiling cost documentation to support the demand for
reimbursement.
• Accrued interest on the above costs.
The AOC must address oversight reimbursement and provide a
schedule of payments. The billing and reporting of these costs can
be facilitated through use of the oversight Site Information Form
(SIF) which is on the CERCLIS menu. Information concerning the
incurrence and reimbursement of oversight costs should be entered
into CERCLIS in a timely manner along with related site information
as it develops.
RESPONSIBILITIES: With regard to the documentation of such costs, the Cost
Documentation Management System (CDMS) is the primary tool for
summarizing costs. This system draws on the Integrated Financial
Management System (IFMS) and presents costs in summary form
which can be used to document costs for billing purposes pursuant
to the AOC. The CDMS summaries are also useful in cost recovery
negotiations and litigation.
The use of this system is the joint responsibility of the Financial
Management Office (FMO) and the Cost Recovery Program staff in
the Waste management Division (WMD) of the Region. The ORC uses
the CDMS outputs in negotiations and litigation.
EPA Financial Management Offices (FMOs) in Headquarters, Regions,
and other field offices (e.g., RTP) are primarily responsible for
compilation of cost documentation. The Regional Cost Recovery
3-6
-------
Figure 3-2. Summary of Cost Recovery Documentation (continued)
RESPONSIBILITIES Program staff is responsible for preparing a cost recovery checklist
(continued)
ASSISTANCE:
that identifies the site, status, period for which documents are
needed, types of documents, and appropriate ORC and Program
contacts to assist the FMOs in this compilation. The Program
staff is also responsible for ensuring the completeness and technical
accuracy of the cost documentation packages produced by the
FMO. The ORC is responsible for identifying documents
protected by the Privacy Act and by EPA's Public Information
regulations (40 CFR Part 2), as well as documents that may be
enforcement confidential or otherwise privileged. The ORC may
prepare affidavits for the FMOs to attest as fact witnesses as to the
authority and content of EPA documents.
For further information relating to documentation of oversight
activities or related recoverable costs, contact your Regional Cost
Recovery Program Chief, your Regional FMO or Superfund
Financial Officer (SFO), or the Chief, Cost Recovery Branch,
CED, OWPE, OS-510W, (703) 308-8454 or FTS 398-8454.
Ongoing
Activities
Throughout the post-AOC process, the following ongoing activities need to be
performed:
• Amend Project Plans. Each element of the Work Plan and SAP may not be
known at post-AOC scoping. Field activities, such as Baseline Risk
Assessment and treatability study requirements, may need to have separate
Work Plans to be incorporated into the existing, flexible Work Plan. Non-
field activities, such as identifying action-specific ARARs, may also change
the scope of the Work Plan and SAP.
• Conduct project status meetings. The RPM, oversight assistant, and TST
members should meet with the PRPs and their field supervisory personnel
regularly to discuss the content of the Project Plans, make changes to the
schedule, as needed, and identify problem areas early. Some problems may
be avoided by acquiring the needed access to the site, mobilizing necessary
field equipment, looking out for unexpected site conditions, discussing
proposed activities with the community, reviewing the capabilities of
personnel and equipment of the PRP proposed laboratory, verifying that the
sampling data and monitoring well placement will acquire quality data, and
committing the PRPs to a workable schedule of draft and final deliverables.
• Decision to divide project into phases. The RPM, oversight assistant, and
TST members may agree in post-AOC scoping that the PRP perform a
sampling event on one operable unit with hopes that the data obtained will
help provide a better understanding for future sampling events or other
operable units. The number of phases, however, may be amended at any
time as additional data on the site become known.
3-7
-------
Figure 3-3. Summary of Administrative Record File
PURPOSE:
MAINTENANCE:
CONTENT:
FOR FURTHER
INFORMATION
The Administrative Record File contains documents that
may form the basis for EPA's selection of response actions.
This File provides documentation of the basis for Agency
action if EPA decisions are challenged, and provides the
public an opportunity to review and comment on site
activities and plans.
The Administration Record
Regional (or State) office.
File is maintained by the
The Administrative Record File should include factual
information and data that may form the basis for the selection
of a response action; including reports on the site response
activities; policy and guidance documents relevant to the site,
(as contained in the OSWER "Compendium of CERCLA
Guidance Documents Used for Selection of CERCLA
Response Actions") public participation documentation;
information from parties outside EPA, such as documentation
of State involvement, ATSDR health assessment or reports
by Trustees; enforcement documents pertaining to response
selection; public comments; and decision documents.
See "Final Guidance on Administrative Records for Selecting
CERCLA Response Actions" (OSWER Directive No. 9833.3A-
1, December 3, 1990).
3.5 DELIVERABLES DURING POST-AOC SCOPING
The Project Plans are the first deliverables submitted by the PRP to the lead
agency. The lead agency will review and approve the PRPs' Work Plan and
SAP, and only review and comment on the PRPs' HSP. The minimum
requirements for each of these deliverables are contained in Figure 3-4.
Work Plan A PRP RI/FS Work Plan should at a minimum contain a comprehensive
Content description of the five areas (see RI/FS Guidance, Chapter 2 and Appendix B
in Volume 2) discussed in the following sections.
Introduction The introduction to the Work Plan should provide a general explanation of the
objectives for performing the RI and FS and the goals to be achieved during
each portion of the process. The PRPs should discuss the activities to be
performed, the deliverables to be submitted, and the schedules for performing
activities and submitting deliverables.
3-8
-------
Figure 3-4. Elements of Project Plans
Elements of a Work Plan
• A comprehensive description of the work to be performed, the information
needed for each task, the information to be produced during and after each task,
and a description of work products submitted to the RPM (see Rl/FS Guidance,
Chapter 2 and Appendix B, and the Enforcement Project Management Hand-
book, Rl/FS Implementation Chapter);
• The methods that will be used during each activity (see Rl/FS Guidance
Appendix B, and Section 1.7 of this manual on QAJQC);
• A schedule for completing activities (see timeline in Figure 15 and activities
checklist in the Enforcement Project Management Handbook, Rl/FS Implementa-
tion Chapter);
• The rationale for performing or not performing an activity (see RIlFS Guidance
Appendix B, and the Enforcement Project Management Handbook, Rl/FS
Implementation Chapter);
• A site background summary and history of site (see the Pre-PRP Negotiation
Task in Chapter 2):
• A site conceptual model (see the Pre-PRP Negotiation Task in Chapter 2);
• An identification of preliminary site objectives which includes preliminary
remediation goals (see Chapter 2 of (his manual);
• The need for additional data when future site unknowns are identified (see Model
SOW. Task l.and the Enforcement Project Management Handbook, Rl/FS
Implementation Chapter);
• The manner of identifying Federal and State ARARs (see the Post-AOC Scoping
Task in Section 22 and the Development and Screening of Alternative Task in
Chapter 3);
• An identification of preliminary alternatives (see Chapter 3 of this manual) and
RI / FS guidance; and
• A plan for meeting treatability study requirements (see Chapter 6 of this
manual).
Elements of the Health and Safctv Plan (Continued')
• Employee training assignments;
• A description of personal protective equipment and an identification of those
operations when it will be used;
• Medical surveillance requirements;
• The frequency and types of monitoring, personnel monitoring, and environ-
mental sampling techniques and instrumentation;
• Site control measures;
• Decontamination procedures;
• Standard operating procedures for the site;
• A contingency plan that meets the requirements of 29 CFR 1910.120( 1)(1)
and (1X2); and
• Entry procedures for confined spaces.
Elements of the Sampling and Analysis Plan
Quality Assurance Project Plan (QAPJP)
• Sampling procedures, sample custody procedures, analytical procedures, data
reduction, data validation, data reporting, and personnel qualifications (see
Chapters 1 and 3 in Volume I, and Appendices B and C in Volume 2 of this
manual);
• The qualifications of each laboratory to conduct work (Note: If a laboratory
selected is not in the Contract Laboratory Program (CLP), the non-CLP lab's
methods must be consistent with CLP methods in order to satisfy EPA's QAI
QC procedures) (see Chapter 1 of this manual); and
• The use of internal controls, such as unannounced site, performance, and
system audits (see Section 1.7 of this manual).
Elements of the Health and Safety Plan (Lead Agency Supplies ( ^mments Only) Field Sampling Plan (FSP)
• Identification of the site health and safety officer, key personnel, and alternates,
for site health and safety;
• The risk analysis for existing site conditions, each site task, and operation;
The sampling objectives, sample locations and frequency, sampling equip-
ment and procedures, and the program for sample handling and analysis (see
Section 1.7 in Volume 1, and Appendices B and C in Volume 2 of this
manual).
-------
Site
Background
and Physical
Setting
The site background and physical setting section should describe current site
conditions, site history, and available existing site information.
Initial The initial evaluation should provide a site conceptual model, which contains
Evaluation EPA's assessment of the site's current and potential risks to human health and
the environment, exposure pathways, and current and potential routes of
migration of the contaminants of concern.
Work Plan The Work Plan rationale should provide an explanation and illustration of how
Rationale the data needs will satisfy the oversight team's preliminary site objectives,
especially an EPA-conducted risk assessment, and the preliminary list of
alternatives. This Section will incorporate the site-specific concerns that are
included in both parts of the SAP - the Field Sampling Plan (FSP) and the
Quality Assurance Project Plan (QAPjP).
Note: Regions that have devised SOPs and generic QAPjPs can save
substantial time during Project Plan development.
RI/FS Tasks
The RI/FS task discussions should describe the activities to be performed
during scoping, site characterization (including EPA's (or PRPs', if an AOC
was signed before June 21, 1990) Baseline Risk Assessment and treatability
studies), and the development and analysis of potential alternatives. The site-
specific items identified in the SAP (both FSP and QAPjP) should also be
included in the discussion of the activities for each task (see RI/FS Guidance
Appendix B).
SAP Content A PRP SAP should contain a QAPjP and an FSP to ensure that the proposed
sampling data collection activities are compatible with previous data collection
activities and serve as a mechanism for the PRP to acquire EPA quality data.
(See RI/FS Guidance, Chapter 2 and the "Compendium of Superfund Field
Operations Methods" (OSWER Directive No. 9355.0-14, August 1987).)
Project Plans
and the
Baseline Risk
Assessment
Depending upon the existing site data and the complexity of the site, the PRP
Work Plan and SAP may not fully address EPA's Baseline Risk Assessment (or
PRP assessments started prior to June 21, 1990) and treatability studies. When
the RPM determines that these activities will be needed, an amended or
separate Work Plan and SAP will have to be developed by the PRP and
approved by EPA. (For further information see Baseline Risk Assessment in
Chapter 5 and treatability studies in Chapter 6 of this guidance.)
Project Plan The progress of the RI/FS study should be compared to the anticipated
Progress progress as presented in the Work Plan, and reported monthly. At a minimum,
Reporting progress reports should: (1) describe the actions that have been taken to
comply with the AOC; (2) include all results of sampling and tests and all
other data received from PRPs; (3) describe the work planned, specific work
schedules, and relationship to the overall project schedule for completing the
RI/FS; and (4) describe all problems encountered, any anticipated problems or
delays, and any solutions to address these problems or delays.
3-10
-------
Questions for The RPM, with help from the oversight assistant and members of the TST,
Project Plan should make sure that the Project Plan data and analyses answer the following
Review questions:
• Work Plan and Sampling and Analysis Plan (SAP)
Are the plans consistent with the NCP, EPA guidances, and the
activities, schedules, and procedures listed in the AOC and SOW?
Has the RPM supplied the PRP with appropriate EPA guidance
documents and, if available, SOPs?
Do the plans contain the minimum required data to meet the
activities checklist in the Enforcement Project Management
Handbook or Figure 3-4 of this manual?
Do the plans address and provide resolution of site-specific
concerns of the oversight team (RPM, oversight assistant, TST,
and States) especially regarding EPA's risk assessment?
Do the plans include activities and objectives that are sufficiently
broad to include the need for future data and activities, fill in the
existing data gaps, and handle all types of delays due to natural
and physical events?
Is it clear who will perform each activity, how the activity will be
performed, what information will be needed prior to each
activity, and what information will be produced at the conclusion
of each activity?
Will the planned activities meet technically accepted engineering
procedures, CLP protocols, and QA/QC concerns?
• Health and Safety Plan (HSP)
Does the plan meet the Occupational Safety and Health
Administration (OSHA) requirements for worker safety?
Does the plan contain each of the required elements, as shown in
Figure 3-4?
• Other Deliverables: Progress/Status Reports
Will the PRP and oversight assistant submit biweekly or monthly
status reports on the portions of the Project Plans that will
involve potential areas of disagreement regarding the site
characteristics or contaminants?
3.6 FOR FURTHER INFORMATION
• National Contingency Plan (NCP), 40 CFR 300.430(a).
• Guidance for Conducting RI/FS Under CERCLA, OSWER Directive No.
9355.3-01, October 1988, (Chapter 2 and Appendix B).
• Interim Guidance on PRP Participation in RI/FS, OSWER Directive No.
9835.la, May 16, 1988.
3-11
-------
• Getting Ready, Scoping the RI/FS, OSWER Directive No. 9355.3-01FS1,
November 1989.
• Scoper's Notes, An RI/FS Costing Guide, EPA/540/G-90/002, February
1990.
• Enforcement Project Management Handbook, OSWER Directive No.
9837.2-A, January 1991.
• Data Quality Objectives for Remedial Response Activities, OSWER
Directive No. 9335.0-7B, March 1987.
• CERCLA Compliance With Other Laws Manual (ARARs): Interim Final
OSWER Directive No. 9234.1-01, August 8, 1988.
• CERCLA Compliance With Other Laws Manual: Part II. Clean Air Act
and Other Environmental Statutes and State Requirements, OSWER
Directive No. 9234.1-02, August 1989.
• Interim Guidelines and Specifications for Preparing Quality Assurance
Project Plans, U.S. EPA, Office of Exploratory Research, QAMS - 005/80,
December 1980.
• A Compendium of Technologies Used in the Treatment of Hazardous
Wastes, EPA/625/8-87/014, September 1, 1987.
• A Compendium of Superfund Field Operations Methods, OSWER Directive
No. 9355.0-14, August 1987.
• Occupational Safety and Health Guidance Manual for Hazardous Waste Site
Activities, NIOSH/OSHA/USCG/USEPA, 1985.
3.7 RESOURCES AVAILABLE TO THE RPM
Personnel • Oversight Assistant.
• Technical Support Team (TST).
• Regional Staff (Peer Review, Management Review, ESD, ORC, and ORD).
• Headquarters Staff (OWPE, OGC, OE - Superfund Division).
• Other Federal Agencies (ATSDR, USCOE, Natural Resource Trustees).
• State Representatives.
• CLP and non-CLP Laboratories.
Documents • PRP Site Conceptual Model.
• PRP List of Data Quality Objectives (DQOs).
• PRP List of Federal and State ARARs.
3-12
-------
• PRP List of Treatment Technologies.
• PRP List of Potential Remedial Alternatives.
• PRP Draft and Final Project Plans (Work Plan, SAP, HSP).
Data • Existing data from PRP Search, PA/SI, other Federal, State, and local
sources.
• Site visit notes.
• Comments on the contents of Project Plans from members of the TST,
other Federal agencies, and States .
• Estimate of site costs using the Cost of Remedial Action (CORA) Model or
the Site Cost Estimation and Evaluation Study (SCEES) Database, which
are available in each Region.
• Results of any limited field investigation.
3.8 HELPFUL HINTS FOR THE RPM
To avoid project delays during post-AOC scoping, the RPM should:
• Set up a network to communicate regularly with the oversight assistant and
with members of the TST;
• Determine the ability of the PRPs (and PRPs' contractor) to perform the
post-AOC scoping activities and verify the capability of the PRP to
perform future RI/FS tasks;
• Discuss special site concerns and peculiarities with the oversight assistant
and the TST (including State);
• Check the format, activity schedules, data documentation, and data
completeness and accuracy of the Project Plans;
• Verify that the Project Plans will describe the site characteristics, the site
contaminants, the risks to human health and the environment and the
nature and extent of contamination (unless EPA is performing the Baseline
Risk Assessment); and
• Identify areas where additional data will be required as well as areas which
will not need to be addressed because of site type, contaminant type, or
nature of the operable unit.
To help minimize the time spent on post-AOC scoping, the RPM can:
• Provide guidance documents to the PRP'early in post-AOC scoping
regarding all phases of the RI/FS process;
• Allow time in the schedule for review and comment (by RPM, oversight
assistant, and TST) and PRP resubmittal of deliverables;
3-13
-------
• Document information obtained from the oversight assistant, from the
PRPs, and from site visits;
• Specify level of detail and content of PRP Project Plans early, preferably
during kickoff meeting;
• Alert Natural Resource Trustees;
• Open the Administrative Record File at the end of post-AOC scoping; and
• Notify- the public via meeting or fact sheet of the planned field activities.
3-14
-------
CHAPTER 4
SITE CHARACTERIZATION
4.1 INTRODUCTION
The site characterization task seeks to gather sufficient data to define the site
risks, to evaluate alternatives, and to assess the physical and biological
characteristics of the site including contamination source, nature, extent,
transport and fate of the contamination. The RPM and oversight assistant will
oversee the field activities performed by the PRP, including field sampling
and laboratory analysis activities (see Appendices B and C in Volume 2), to
ensure that the PRP activities conducted during site characterization conform
to the Project Plans previously approved by EPA. Data are gathered for other
analyses conducted during Site Characterization (for example, EPA's Risk
Assessment, Treatability Study Evaluation, and the Natural Resource Trustee
Survey), so that the PS can be conducted and completed without the need for
additional information gathering.
4.2 PURPOSE AND GOAL FOR THE RPM
During site characterization, the RPM approves the PRPs' sampling and well
drilling activities, verifies the PRPs' documentation of the field activities, and
verifies that the PRPs meet ARARs (to the extent practicable) for actions
conducting during the RI (e.g., during well drilling at a historic site). In
addition, the RPM should ensure that any wastes generated during the RI
which are taken off-site for treatment or disposal are managed in accordance
with applicable Federal and State requirements. Information obtained through
this process will serve as the basis for determining the remedial action to be
taken. The RPM can identify areas where additional data will be needed to
characterize the site, ensure that this information is obtained to meet QA/QC
concerns, and attempt to avoid unnecessary sampling activities. The RPM also
should review the PRPs' definition of site characteristics, and the source(s),
nature and extent, volumes/levels, and the potential transport and fate of the
known contaminants. These activities should be described in the draft and
final RI Reports.
4.3 TIMEFRAME
Due to the iterative nature of sampling phases and resampling events, one
cycle of the site characterization task can take up to 12 months to complete.
The timeframe for site characterization, however, will depend on the
following:
• Potential extent and number of site problem areas (for example, with
respect to soils, surface water, groundwater, air emissions, etc.);
• Potential for multiple sampling events and drilling phases (for example, for
source control, soils, groundwater, surface water, etc.);
• Turnaround time for laboratory analysis;
4-1
-------
• Need for resampling if initial data are unacceptable or for additional
sampling to fill data gaps and determine the extent of contamination;
• Time needed for EPA to perform the Baseline Risk Assessment and for
EPA or the State to support the need for Treatability Studies;
• Seasonal variations and adverse climatic conditions that affect collecting
accurate and representative samples;
• Time for EPA to review deliverables; and
• Unexpected discoveries of new sources.
4.4 HOW THE RPM OVERSEES SITE CHARACTERIZATION
The RPM and/or oversight assistant perform the following oversight activities,
focusing on the PRPs' sampling and analysis tasks, to acquire accurate and
complete data, as described in the following sections:
• Meet with the oversight team;
• Review proposed field activities;
• Visit the site;
• Document and track field activities;
• Assess changes in original data needs;
• Conduct meetings;
• Review progress and interim reports;
• Conduct management review; and
• Update the files.
Each of these is discussed below.
Oversight Meet with the oversight team (including, as appropriate, oversight assistant,
Team Meeting TST, States, ATSDR, Natural Resource Trustees) prior to initiating the
planned field activities to determine:
• Qualifications of any additional subcontractors not previously evaluated
that are needed to perform the various field procedures;
• The technical resources and remedial equipment available to the PRP or its
contractor;
• How the field activities will characterize the site, define the types and
sources of contaminants, and describe the nature and extent of
contamination;
• How to ensure that the planned activities will correspond to the Work Plan
and SAP;
4-2
-------
• Procedures for notifying PRPs and, if necessary, EPA counsel if PRPs'
field procedures deviate from the Work Plan and SAP,
• The appropriate sampling and drilling procedures, especially the number of
samples and wells drilled, types of sampling to conduct (splits, spikes, and
blanks), specific location of the sampling equipment, procedures to
transport samples, and validation of samples for completeness. (Use
Appendices B and C of this manual in Volume 2 to oversee and document
sampling and well drilling activities.);
• The status of contacts with ATSDR, States, and Natural Resource Trustees;
and
• The use of a personal computer (PC)-based tracking system to monitor the
progress of the field activities and keep down-time to a minimum.
Proposed Field
Activities and
Sampling and
Analysis
Review proposed field activities and sampling and analysis activities. (See
Appendices B and C of Volume 2. A checklist to document sampling and
analysis activities is contained in Appendix B; a checklist to document well
drilling and analysis activities is contained in Appendix C.)
Note: The RPM will need to schedule into the sampling and analysis
tasks other activities, including providing RI data for an ATSDR
Health Assessment, the Natural Resource Trustee Survey, EPA's
Baseline Risk Assessment, and the PRPs1 Treatability Studies
Evaluation. Therefore, it is important for the RPM to verify,
even if only by spot checking, the qualifications of all personnel
and the quality of the equipment used and data generated before
the initiation of field activities.
Site Visit
In addition to the oversight assistant, the RPM or another qualified EPA
representative such as a person from the Region's ESD should visit the site
during the initial phase of site characterization to observe the PRPs' initial
sampling and well drilling activities. The RPM should review the PRPs'
capability to satisfy the Regional SOPs, perform the required field activities,
and review the oversight assistant's capability to perform field oversight of the
PRPs.
Field
Activities
Document and track field activities using checklists (for example, those
presented in Appendices B and C of Volume 2), or Regional checklists or a
field logbook. Figure 4-1 summarizes four useful tools to document field
activities. Also, review PRP and oversight assistant monthly progress reports,
PRP special activity reports, and laboratory reports. Field activities should be
performed if the activity aids in obtaining a site objective, helps to refine the
site conceptual model, or identifies an area that will require additional data.
Meeting
ARARs
Verify that PRPs are meeting location- and chemical-specific ARARs (and
other ARARs if known at this time) to handle the management of
investigation-identified waste to be taken off-site for treatment or disposal,
and to mitigate or avoid impacts to historic resources and endangered species
even during routine field activities.
4-3
-------
Figure 4-1. Summary of Tools to Document Field Activities
Field Activity Reports
Purpose:
Uses:
Specifics:
Assistance:
These reports help the RPM and the oversight assistant to be consistent regarding the need to document
field activities.
These reports are a way to check that the conducted field activities are consistent with procedures agreed
to in the Work Plan and SAP, and are available to assist EPA if the field activity leads to future litigation.
Use water-resistant ink, draw through all errors, initial all corrections, and date and sign all reports.
See checklists for documenting the conduct of sampling and well drilling activities in Volume 2,
Appendices B and C.
Field Logbook
Purpose:
Uses:
Specifics:
Assistance:
This logbook supplements the field activity report to record additional site incidents and activities.
This logbook contains information supplemental to decision making, such as conversations with key
personnel, potential or actual problems encountered, explanations for changes in project plans, and other
oversight discussions or observations.
Use water-resistant ink, draw through all errors, initial all corrections, number and bind the log, and date
and sign all entries.
The RPM, as needed, determines the content of this logbook.
Photographic or Videotape Log
Purpose:
Uses:
Specifics:
Assistance:
This log gives a visual presentation of the physical conditions of the site and can be used to show how
field activities were conducted and verify what equipment was used.
This log is a way to check that the conducted field activities are consistent with procedures agreed to in
the Work Plan and SAP, when the field activity pertains to remedy selection, and is available to assist
EPA if the field activity leads to future litigation.
Include date, time, and location on each entry, an orientation of the photographs or video, a description of
the activity on the back of the photograph or orally on the videotape, and the person(s) responsible for the
photographs or video.
Contents and maintenance of the log are the decision of the RPM.
Laboratory Reports
Purpose:
Uses:
Specifics:
Assistance:
These reports document that the sampling procedures were conducted to satisfy EPA collection
protocols, were performed to the agreed upon chain-of-custody procedures, and were analyzed
according to EPA's CLP protocols.
These reports verify that the conducted field activities are consistent with procedures agreed to in the
Work Plan and SAP, consistent with CLP protocols, verifiable using QA/QC parameters - important
when the field activity pertains to remedy selection, and are available to assist EPA if the field activity
leads to future litigation.
Label samples with time, date, location, and type; properly store and transport samples; follow
appropriate chain-of-custody procedures; regularly calibrate the sampling equipment; perform QC of
sample types; and conduct field and laboratory audits as needed.
References for documenting sampling and well drilling activities are listed in Appendices B and C in
Volume.2 of this guidance.
4-4
-------
Data Needs Ensure that the PRP satisfies the data needs or activities of the Natural
Resource Trustee's Preliminary Survey, EPA's Baseline Risk Assessment, and
the Treatability Study Evaluation Report during site characterization. Get
input from these parties on their specific concerns before performing
unnecessary field activities.
Progress
Meetings
Conduct meetings with the PRP, oversight assistant, and members of the TST
(including State representative) on the content of monthly progress reports, the
Preliminary Site Characterization Summary, and the direction of future field
activities.
Review With assistance of the TST and State, when appropriate, review and comment
Summary and on the Preliminary Site Characterization Summary and the draft RI Report.
Report
Management Conduct a Regional management review meeting to discuss the Preliminary
Review Site Characterization Summary, EPA's Baseline Risk Assessment (if already
Meeting conducted), and the RI Report.
File Updates Continually update the site file, Administrative Record File, and cost recovery
documentation.
Fact Sheet If appropriate,, develop a fact sheet from the generated data, the Site
Characterization Summary, and the final RI Report to present to the public.
Send a copy of the RI Report to ATSDR.
Note: The community may need to be notified before conducting
apparent or intrusive field activities (for example, forewarn the
community of drilling activities in streets or a school yard).
4.5
DELIVERABLES DURING SITE CHARACTERIZATION
The PRP will submit a Preliminary Site Characterization Summary and a
Technical Memorandum on Modeling the Site Characteristics (if necessary) for
review and comment, and a draft RI Report for review and approval.
Additional deliverables requiring review and comment or approval will be
associated with the Treatability Study Evaluation Report (see Chapter 6) and a
final RI Report. The PRP deliverables during site characterization should
answer the following types of questions:
• Site Characterization Summary
Does the summary provide a brief description (a few pages or set
of tables) on the site characteristics to satisfy the requirements of
this summary in the RI/FS Guidance, Chapter 3?
Does the summary assure that EPA gets data for the Baseline Risk
Assessment as soon as possible?
Does the summary satisfy the checklist of items in the
Enforcement Project Management Handbook, RI/FS
Implementation Chapter, Section 6?
4-5
-------
Does this summary contain information to help the RPM or State
identify ARARs?
• Technical Memorandum on Modeling Site Characteristics (if necessary)
Does the site complexity require this model?
Does this memorandum identify and describe any special site
features that would be addressed by modeling?
Can the modeling assumptions be identified clearly?
• Draft/Final RI Report
Does this report follow the format in the RI/FS Guidance,
Chapter 3, Table 3-13, and the Enforcement Project Management
Handbook, RI/FS Implementation Chapter?
Does this report include deliverables on the need to conduct
Treatability Studies, if necessary?
Does this report reflect specific concerns from EPA, State,
ATSDR, and Natural Resource Trustees raised during review of
the RI/FS Work Plan and SAP?
Does this report identify and justify additional activities needed?
Other • Monthly Progress Reports
Deliverables
Do these reports contain useful, accurate, and timely data?
• Laboratory Reports
Do these reports satisfy our QA/QC concerns for a data analysis
that is legally defensible?
• Field Activity Reports
Do these reports describe the site activities in detail to justify the
activities in progress and support the need for future field
activities?
• Photographic Logs/Aerial Photographs
Do these photographs help to justify performing the present
activities and support the need for future activities?
• Shipment Records
Do these records identify owners, generators, transporters, types,
volumes, concentrations, and dates of disposal of site
contaminants?
4-6
-------
4.6
FOR FURTHER INFORMATION
• National Contingency Plan (NCP), 40 CFR 300,430(a).
• Guidance for Conducting RI/FS Under CERCLA, OSWER Directive No.
9355.3-01, October 1988, (Chapter 3).
• The Remedial Investigation - Site Characterization and Treatability
Studies, OSWER Directive No. 9355.3-01FS2, November 1989.
• Interim Guidance on PRP Participation in RI/FS, OSWER Directive No.
9835.la, May 16, 1988.
• Model Statement of Work for RI/FS Conducted by PRPs, OSWER
Directive No. 9835.8, June 2, 1989.
• Enforcement Project Management Handbook, OSWER Directive No.
9837.2-A, January 1991.
• Risk Assessment Guidance for Superfund, Human Health Evaluation
Manual (HHEM) Part A, OSWER Directive No. 9285.701A, July 1989.
• Risk Assessment Guidance for Superfund, Volume II, Environmental
Evaluation Manual (EEM), EPA/540/1-89/001, March 1989.
• Superfund Exposure Assessment Manual, OSWER Directive No. 9285.5-1,
April 1, 1988.
• Compendium of Superfund Field Operation Methods, OSWER Directive
No. 9355.0-14, August 1987.
• Chemical, Physical, and Biological Properties of Compounds Present at
Hazardous Waste Sites, OSWER Directive No. 9850.3, September 27, 1985.
4.7 RESOURCES AVAILABLE TO THE RPM
Personnel • Oversight Assistant.
• Technical Support Team (TST).
• Regional Staff (Peer Review, Management Review, ESD, ORC and ORD).
• Headquarters Staff (OWPE, OGC, OE - Superfund Division).
• Other Federal Agencies (ATSDR, USCOE, USDA-SCS, Natural Resource
Trustee, U.S. Department of Commerce (DOC)-USFWS).
• States (EPA-equivalent, SFWS, SGS, State Trustee).
• Contract Laboratory Program (CLP) and non-CLP Laboratories.
Documents • Work Plan and Sampling and Analysis Plan (SAP).
• ATSDR Health Assessment.
• Site Characterization Summary.
4-7
-------
• Draft RI (with or without Baseline Risk Assessment).
• Checklists on sampling and well drilling (Appendices B and C).
• EPA's Baseline Risk Assessment (if available).
Data • Sampling Activities Summary
Collection.
Analysis.
- Evaluation.
• Well Drilling Activities
Number/Location.
- Cores.
Analysis.
Evaluation.
Monitoring.
4.8 HELPFUL HINTS FOR THE RPM
During Site Characterization, the RPM should:
• Ensure that field activities are consistent with the Work Plan and SAP;
• Oversee the oversight assistant's performance and its timely reporting of
site characterization activities;
• Determine the ability of PRP (and PRP contractors) to conduct field
activities, for example, drill the needed exploratory, development, or
monitoring wells and collect quality samples, consistent with site
complexity;
• Identify previously unknown contaminants;
• Review the major PRP deliverables (Preliminary Site Characterization
Summary, Treatability Study Evaluation Report, and draft and final RI
Reports) and interim deliverables;
• Notify PRPs and, if necessary, EPA counsel of any AOC noncompliance;
• Keep the public informed of upcoming field activities; especially highly
visible or intrusive field work; and
• Ensure location-specific ARARs (and other known ARARs) have been
considered (for example, critical habitat, historic property).
To help minimize the time spent on site characterization, the RPM should:
• Visit the site during initial sampling and well drilling activities;
• Take QC samples and audit the PRPs' laboratory to meet QA/QC concerns;
• Ensure documentation of field activities and all generated findings;
4-8
-------
• Incorporate EPA's Baseline Risk Assessment, where available (see
Chapter 5), and the Treatability Study Evaluation (see Chapter 6) activities
into site characterization;
• Coordinate with the Natural Resource Trustee, ATSDR, and State;
• Update the site file, Administrative Record File, and cost recovery
documentation and information; and
• When PRP deliverables are reviewed, impose deadlines and followup with
tardy reviewers, and notify PRPs and, if necessary, EPA counsel of
noncompliance.
4-9
-------
CHAPTER 5
BASELINE RISK ASSESSMENT
5.1 INTRODUCTION
The Baseline Risk Assessment is conducted during the RI. It is an iterative
process that begins at post-AOC scoping and ends with preparation of a
document that usually is included as a chapter in the RI Report. Beginning
with all AOCs signed after June 21, 1990, it is EPA's policy that the Agency
will prepare the Baseline Risk Assessment at Enforcement-lead sites (see
"Performance of Risk Assessments in Remedial Investigation/Feasibility
Studies (RI/FSs) Conducted by Potentially Responsible Parties (PRPs)"
(OSWER Directive No. 9835.15, August 28, 1990)). For those sites with an
ongoing PRP risk assessment, careful oversight is critical in order to ensure the
timely development of an acceptable Baseline Risk Assessment. The above-
referenced directive also states that EPA should certify that each PRP risk
assessment is acceptable.
Note: EPA is preparing a guidance document on how to conduct the Baseline
Risk Assessment at PRP-lead sites. The guidance will include language
changes to the Model AOC and Model SOW.
5.2 PURPOSE AND GOAL OF THE BASELINE RISK ASSESSMENT
The Baseline Risk Assessment has two major purposes. The first purpose is to
help determine if a site poses a current or potential risk to human health
(through a human health evaluation) or the environment (through an ecological
assessment) in the absence of any remedial action. The risk assessment may
form the basis for finding that the site may present an imminent and
substantial endangerment. The risk assessment also may show that the baseline
risks are acceptable and that remediation is not needed in spite of the site's
Hazard Ranking System (HRS) scoring. The second major purpose of the
Baseline Risk Assessment is to help determine remediation goals for the site
contaminants. Remediation goals are chemical concentrations set at risk-
based levels that are protective of human health and the environment (or at
chemical-specific ARAR levels, where available).
The RPM needs to involve Regional staff and TST members early in post-
AOC scoping to ensure that PRPs are given adequate direction to perform the
site characterization activities. The quality of the Baseline Risk Assessment is
based upon the accuracy of the activities performed, data collected, and data
evaluated during site characterization. If the proper number of samples is not
taken in the proper location and appropriate media of concern, the risk
assessment will not accurately reflect the risks presented by releases from the
site.
The RPM also should ensure that when preliminary remediation goals (PRGs),
developed in post-AOC scoping, are modified based on the risk assessment
results, these modified remediation goals are then used in the FS to establish
refined remedial action objectives and to develop, screen, and perform a
detailed analysis of the potential alternatives.
5-1
-------
5.3
TIMEFRAME
Baseline Risk Assessment is performed concurrently with site characterization
and may take up to 12 months to complete. It should be noted, however, that
data for the Baseline Risk Assessment usually lags behind fieldwork data. The
risk assessment report cannot be written until all sampling data have been
verified. The timeframe for the Baseline Risk Assessment, however, will be
influenced by many factors, including amount of existing site data, complexity
of the site, contaminants (type, concentration, media affected, pathways, etc.),
turnaround time for laboratory analysis, number of resampling events, and
choice of risk models and assumptions used to generate the remediation goals.
5.4
HOW THE RPM OVERSEES A PRP RISK ASSESSMENT
Procedures for performing a PRP Baseline Risk Assessment are in Volumes 1
and 2 of the Risk Assessment Guidance for Superfund (RAGS):
• Risk Assessment Guidance for Superfund, Volume 1, Human Health
Evaluation Manual (OSWER Directive No. 9285.701A, EPA/540/1-89/002,
December 1989); and
• Risk Assessment Guidance for Superfund, Volume II, Environmental
Evaluation Manual, EPA/540/1-89/001, March 1989.
The RPM must ensure that the PRP and its contractor follow Volume 1 for
developing a human health evaluation, Volume 2 for developing the
environmental evaluation or ecological assessment, other guidances listed in
Section 5.6, and any subsequent guidance on risk assessment. The RPM must
ensure that there are frequent discussions between EPA Regional risk assessors
and the PRP and its contractor.
The RPM, with the assistance of the Regional risk assessors and/or the
oversight assistant, performs the tasks described in the following sections
during a PRP Baseline Risk Assessment.
Risk Assessor
Meetings
During post-AOC scoping, meet with Regional risk assessors (usually one
assessor for human health and one for the environment) or oversight assistant
to discuss existing site information (PA/SI or other data); EPA's preliminary
site conceptual model (chemicals of concern, potential sources of
contamination, exposure pathways, existing risks to human health and the
environment); and the preliminary site objectives and remediation goals.
PRP Work
Plan Contents
for the
Baseline Risk
Assessment
Ensure that the PRPs1 Work Plan is amended and contains a preliminary
analysis of the following:
• Chemicals of concern;
• Site objectives including remediation goals;
• Potential ARARs affected by the site;
• Risk-based levels to be achieved, (PRGs are set at 10* if the site has no
chemical-specific ARARs that are deemed to be protective);
5-2
-------
• Populations at risk; and
• The need for interim actions.
PRP Staff and Verify the technical quality of PRP staff and contractor to perform the risk
Contractor assessment before the initiation of field activities.
During site characterization, verify that for the Baseline Risk Assessment, the
following occurs:
• Data Collection
- All key site characteristics including soil/sediment, hydrological,
hydrogeological, and meteorological parameters are documented;
All appropriate media are sampled for existing and potential
contamination;
All potential "hot spots" as well as appropriate background locations are
to be sampled, if necessary;
- The sampling maps are sufficiently detailed for locating sampling
locations and, if necessary, for assuring that fieldwork space is
available for performing sampling activities; and
- The data reflect EPA's preference to accurately represent contaminant
levels, by using unfiltered groundwater/surface water sampling results.
• Data Evaluation
No site-related chemicals are eliminated from the risk assessment
unless a valid explanation is supplied by the PRP;
- Sample concentrations are compared to concentrations in the blanks;
- Sample concentrations are compared to background samples;
- All chemicals found at the site are listed by the PRP in the risk
assessment; and
- Contaminants of concern are identified for use in the risk assessment.
• Exposure Assessment
- All current and potential future land uses are identified;
- All populations of concern, especially any sensitive groups and aquatic
and terrestrial populations, are identified;
All exposure pathways for each medium of concern are evaluated;
- Exposure concentrations reported for each medium represent the 95
percent upperbound estimate of the mean;
5-3
-------
- Exposure intakes for each chemical for each exposure scenario are
based on reasonable maximum exposure (RME) assumptions;
- The appropriateness of the exposure assumptions used, if different
from the standard EPA default values, is evaluated;
- Appropriate chemical intakes across pathways within the same media
are combined; and
- Uncertainties in the exposure assumptions are identified by the PRP.
Toxicity Assessment
For noncarcinogenic effects, EPA-verified chronic and subchronic
reference dosages (RFDs) for each route of exposure (oral, inhalation,
dermal) are used when available;
- For carcinogenic effects, EPA-verified cancer potency factors are used
when available;
PRPs' selection of toxicity values for all chemicals for which there are
no EPA-verified toxicity values must be approved by EPA; and
Uncertainties in the toxicity information are evaluated by the oversight
team.
Risk Characterization
PRPs calculate a cancer risk and/or a hazard index for each chemical
of concern;
Aggregate risks or hazard indices for multiple chemicals are presented;
Total cancer risk and hazard index are estimated;
Uncertainties in the Baseline Risk Assessment results are evaluated;
and
Results of the Baseline Risk Assessment are compared to the ATSDR
Health Assessment for consistency.
Oversight
Team Meeting
Meet, as needed, with members of the oversight team, especially risk assessors,
State, ATSDR, and Natural Resource Trustee representative to review the
PRPs' preparation of the Baseline Risk Assessment. (See the Reviewer
Checklist in Exhibit 9-2 and the Checklist for Manager Involvement in
Exhibit 9-3 of the Human Health Evaluation Manual (HHEM)).
Technical Review and comment on PRP technical memoranda (regarding chemicals of
Memoranda concern, amendments to the Work Plans for performing Baseline Risk
Assessment activities, use of exposure scenarios and assumptions, and
verification of toxicity values used), included in the draft and final Baseline
Risk Assessment (human health evaluation and ecological assessment). See
suggested Outline for a Baseline Risk Assessment Report in Exhibit 9-1 of the
HHEM.
5-4
-------
Administrative
Record
Continually update the Administrative Record File and cost recovery
documentation.
Fact Sheet If appropriate, the RPM or oversight assistant should develop a fact sheet
explaining existing and potential risks to human health and the environment
and present it to the public.
5.5
DELIVERABLES DURING OVERSIGHT OF A PRP BASELINE RISK
ASSESSMENT
The PRP submits, at a minimum, the documents listed below during a PRP
Baseline Risk Assessment. They should be reviewed by Regional risk
assessors, other Regional scientists, and appropriate members of the TST
(including States) to answer the following questions for each document:
• Memorandum listing all hazardous substances found at the site and those
selected as chemicals of potential concern:
Is there a complete list of chemicals of concern?
• Work Plan for evaluating environmental risks to aquatic and terrestrial
organisms:
Are appropriate media covered by the sampling plan?
Will the sampling locations identify potential routes of migration and
"hot spots" of contamination?
• Memorandum describing all appropriate exposure scenarios and all
assumptions and exposure factors used to calculate the reasonable
maximum exposure (RME). This includes a description of any fate and
transport models:
Are RMEs identified using exposure concentrations, standard default
values, and spatial relationships?
Are current and future land uses addressed?
Are residential risk and risk to sensitive subpopulations presented
accurately?
Are contaminant pathways for all affected media presented?
- Are there any cross-media transfer effects that need to be considered?
• Memorandum listing any toxicity values used and not verified by EPA
(that is, not in the Integrated Risk Information System (IRIS) or the Health
Effects Assessment Summary Tables (HEAST) databases):
- Are the toxicity values developed according to EPA guidance for
documentation?
Are the appropriate toxicity values based on "nature of exposure"?
5-5
-------
Are the appropriate "route-to-route" extrapolations identified in cases
where a toxicity value is applied across "differing" routes of exposure?
- Are any carcinogens excluded? Why?
Draft and final Baseline Risk Assessment reports (including the human
health evaluation and the ecological assessment):
- Is the format consistent with the suggested outline in Exhibit 9-1 of
the HHEM?
- Are the necessary items of the Reviewer's Checklist (Exhibit 9-2 of the
HHEM) included in the Baseline Risk Assessment?
Are the necessary items of the Checklist for Manager Involvement
(Exhibit 9-3) included in the Baseline Risk Assessment?
Does the Baseline Risk Assessment address all Regional, State and local
concerns?
5.6
General
References
FOR FURTHER INFORMATION
• National Contingency Plan (NCP), 40 CFR 300.430(d).
• Roles of the Baseline Risk Assessment in Superfund Remedy Selection
Decisions, OSWER Directive No. 9355.0-30, March 1991.
• Performance of Risk Assessments in Remedial Investigation/Feasibility
Studies (RI/FSs) Conducted by Potentially Responsible Parties (PRPs),
OSWER Directive No. 9835.15, August 28, 1990.
• Risk Assessment Guidance for Superfund, Volume 1, HHEM, OSWER
Directive No. 9285.701 A, EPA/540/1-89/002, December 1989.
• Risk Assessment Guidance for Superfund, Volume II, EEM, EPA/540/
1-89/001, March 1989.
• Ecological Assessment of Hazardous Waste Sites: A Field and Laboratory
Reference, EPA/600/3-89/013, March 1989.
• Superfund Exposure Assessment Manual (SEAM), OSWER Directive No.
9285.5-1, April 1, 1988.
Databases
Risk Assistant (ORD database for risk assessments).
IRIS.
HEAST.
AQUIRE (ORD's aquatic toxicity database).
5-6
-------
5.7 RESOURCES AVAILABLE TO RPMS
Personnel • Oversight Assistant.
• Regional staff (risk assessors, health and ecological scientists in ESD, ORC,
and ATSDR representative).
• Technical Support Team (TST).
• Biological Technical Assistance Group (BTAG).
• Headquarters Staff (OWPE, OGC, OE - Superfund Division).
• Other Federal Agencies - USCOE, USGS, USFWS, Center for Disease
Control (CDC).
• States - EPA-equivalent Agency, SGS, SFWS, SHPO.
Documents • Memorandum listing all hazardous substances found and those selected as
chemicals of concern.
• Work Plan for evaluating environmental risk.
• Memorandum describing all appropriate exposure scenarios (based on RME
assumptions) and fate and transport models.
• Memorandum listing any toxicological and epidemiological studies used
(supplementing EPA values).
• Draft and final Baseline Risk Assessment report (includes the human
health evaluation and the ecological assessment).
Data
• ATSDR Health Assessment and Toxicological Profiles.
• Results from all Technical Memoranda.
• EPA Standard Values for Exposure and Toxicity.
5.8
HELPFUL HINTS FOR THE RPM
To avoid project delays during a PRP Baseline Risk Assessment, the RPM
should look for the following:
• Inappropriate elimination of chemicals from the risk assessment by the
PRP;
• Failure of PRP to consider all exposure pathways;
• Failure to sum the appropriate hazard indices and cancer risks;
• Failure to sample all appropriate media of concern;
• Failure to properly estimate the RME concentration for each medium;
5-7
-------
• Inappropriate exposure scenarios;
• Failure to address non-cancer effects of carcinogens; and
• Failure to use non-residential exposure scenarios when future exposures
outside of those to residents is likely to occur.
To help minimize the time spent on performing and evaluating a PRP Baseline
Risk Assessment, the RPM should:
t Present PRPs (or PRP contractors) with examples of acceptable Baseline
Risk Assessments;
• Have Regional risk assessors meet with PRP contractors to clarify any
ambiguity;
• Check PRP progress on technical memoranda (interim deliverables) before
final Baseline Risk Assessment report;
• Check the standard exposure scenarios for similar sites;
• Establish early the contaminants to be evaluated;
• Establish early the exposure scenarios to be used; and
• Notify PRPs and, if necessary, EPA counsel of any noncompliance.
5-8
-------
CHAPTER 6
TREATABILITY STUDIES
6.1 INTRODUCTION
Treatability studies are laboratory or field tests designed to provide the data
needed to evaluate and select one or more treatment technologies. Treatability
studies performed during the RI/FS to provide information to support the
detailed analysis and remedy selection tasks and to determine whether the
potential technology can be expected to achieve the remediation goals set in
the FS. Treatability studies are performed when a technology cannot be
adequately evaluated on the basis of the existing information. This may be
due to the level of development of the potential technology, the composition
of waste, and the nature and representativeness of the required data.
Treatability study activities occur throughout the RI/FS; a literature survey is
performed during post-AOC scoping, field studies are performed during the
RI, and an analysis of the treatability studies will support the treatment
alternatives developed and screened during the FS. The time needed to
perform and evaluate treatability studies may be extensive so that beginning
treatability studies in post-AOC scoping can help to prevent project delays in
the FS and later in the remedial design/remedial action (RD/RA). Therefore,
treatability studies should be conducted and completed during the RI.
6.2 PURPOSE AND GOAL FOR THE RPM
During the treatability study task, PRPs identify a general list of treatment
technologies, in which treatment is used to the maximum extent practicable
and only where it is practicable. These technologies should address
groundwater contamination and the principal threats of contamination. The
technologies also should meet the following capabilities (as stated in NCP
Section 300.430(d)):
• Protect human health and the environment;
t Maintain protection over time;
• Minimize the amount of untreated waste;
• Return contaminated ground water to its previous beneficial uses, if
appropriate;
• Reduce the mobility or concentration of contamination by 90 to 99
percent, either individually or by treatment trains; and
• Identify, to the extent available, the use of innovative technologies for
treatment of the toxic/mobile contaminants.
The goal of the RPM is to determine, with support from the members of the
TST, ORD, or other approved contractor with expertise in treatment
technologies, the need for treatability studies early in the RI/FS process (for
example, in post-AOC scoping). The RPM should emphasize the importance
of the following:
6-1
-------
• How acquiring the additional treatability data will satisfy the preliminary
remedial objectives and alternatives; and
• How the PRP will use the treatability study data to evaluate alternatives
and aid in remedy selection.
If the treatability studies are conducted after the RI (during either FS or RA),
the time needed to conduct treatability studies can lead to a major project
delay. After treatability studies have been completed, the RPM, with
technical support, should verify and document the quality of the treatment
data generated by each proposed study.
6.3 TIMEFRAME
The time necessary for the treatability studies task is directly related to the
number and kind of studies required. Treatability studies can and should be
completed during site characterization; therefore, these studies can take up to
12 months. The completion of treatability studies, however, is dependent on
the following:
• Size or complexity of the site;
• Specific site limitations that would preclude the use of certain treatment
technologies;
• Type of treatment data needed: laboratory, bench-scale, and pilot-scale;
• Treatment and residual levels to be attained; and
• Content and quality of the treatability study evaluation report.
6.4 HOW THE RPM OVERSEES TREATABILITY STUDIES
During post-AOC scoping, the PRP conducts a literature survey to determine
the need for treatability studies. The resulting PRP memorandum describes
the need (or lack of need) for performing treatability studies, identifies the
treatment and residual levels (for example, MCLs, maximum contaminant level
goals (MCLGs), ARARs, PRGs, etc.) to be attained by performing treatability
studies, and lists the potential treatment technologies that may be able to meet
these treatment and residual levels.
The need for treatability studies can depend on activities performed after
approval of the PRPs' Work Plan (for example, ATSDR's Health Assessment,
Site Characterization Summary, Baseline Risk Assessment (EPA or PRP), and
the Preliminary Natural Resource Trustee Survey). Therefore, the PRPs may
need to revise or amend the existing PRP Work Plan, SAP, and HSP to include
treatability studies. The RPM, with support from the oversight assistant and
TST, should review the PRPs' memorandum and approve the revisions or
amendments to the Project Plans.
The RPM and oversight assistant should perform the activities described in the
following sections to oversee the PRPs, either during post-AOC scoping when
determining the need for treatability studies, or during site characterization
6-2
-------
when determining the applicability and feasibility of using the identified
treatment technologies.
Relevant Supply the PRPs with relevant guidance documents (for example, references
Guidance listed in Section 2.5). The RPM can contact ORD's SITE Program, Superfund
Documents Technical Assistance Response Team (START), Treatability Assistance
Program (TAP), ATTIC, and other approved contractors with expertise in
treatment technologies for assistance. See Appendix A to access these
resources.
Technical
Memorandum
Review and approve the PRPs' Technical Memorandum that identifies the
candidate technologies and describes how the literature survey was performed
by the PRPs during post-AOC scoping.
Treatment Meet with the oversight assistant, TST, State, and ORD to comment on the
Technology adequacy of the list of treatment technologies. Treatment technologies
List decisions and treatability study type decisions should be performed for each
technology (for example, laboratory, bench-scale, or pilot-scale). (See
Figure 6-1.) The PRPs, with support from experts on treatment programs,
should devise a schedule for preliminary study to be performed during site
characterization. The RPM should approve the schedule of treatability
activities.
PRP Project If necessary, review the original PRP Project Plans (Work Plan, SAP, HSP) and
Plans revise or amend the Project Plans to include a detailed description and
Amended for explanation of the need for and kind(s) of treatability studies to be performed,
Treatability or reason(s) not to perform, a particular study. The RPM should make sure
Studies that the amended Project Plans adequately consider innovative technologies.
Note: These last two steps correspond to the first step during site
characterization. Plans to describe which activities need to be
performed, who will perform these activities, and what will be gained
from performing these activities must be in place prior to the initiation
of field activity.
Treatability Prior to PRP initiation of activities relating to treatability studies, the RPM or
Studies oversight assistant should verify the following:
• Qualifications of the PRPs, PRP contractors, and laboratory to perform
each study;
• Proper protocols that conform to CLP protocols will be used by the PRP
laboratory;
• Reasons for, or expectations of, each study (for example, identify
remediation goals to be met that protect human health and the
environment; comply with ARARs (Federal or State), including land
disposal restrictions (LDRs); reduce waste toxicity, mobility, or volume,
for delisting a RCRA waste);
6-3
-------
Figure 6-1, Kinds of Treatability Studies
Laboratory Screening
Studies
Bench-Scale Testing
Pilot-Scale Testing
Purpose
To determine whether a tech-
nology is potentially viable to
treat a waste.
To identify a technology's
performance on a waste-
specific basis for an operable
unit.
To provide quantitative perfor-
mance and cost data and to
optimize design parameters on
an operable unit.
Approximate
Cost
$10K to $50K
$50K to $250K
$250Kto$l,000K
Timeframe
Hours or days to complete.
Days or weeks to complete.
Months to complete.
Result
To decide whether to proceed
with bench- or pilot-scale
testing.
To decide whether to pro-
ceed to pilot-scale or
whether the technology can
meet expected remediation
goals and can support the
nine evaluation criteria in
the detailed analysis portion
oftheFS.
To determine whether the
technology can meet expected
remediation goals and support
the use of innovative technolo-
gies.
Data Needed
for Decision
Qualitative with less "statisti-
cal significance" needed;
fewer process parameters are
included in the evaluation.
(Note: Generally not used as
a sole basis for selecting a
remedy.)
Quantitative performance
estimate and rough cost data.
Quantitative performance and
cost data, data on operational
parameters, and data on side
streams and residuals. (Note:
The data should provide proof
that the technology can meet
remediation goals.)
-------
• Equipment to be used in each study; and
• Validation of the data that will be generated from performing each study.
Note: There is a presumption that response actions involving the placement
of treated soil and debris contaminated with RCRA-regulated wastes
will utilize a Treatability Variance to comply with LDRs and that,
under these variances, the treatment levels outlined in Superfund
Guide #6A (OSWER Directive No. 9347.3-06FS, July 1989 and revised
March 1990) will serve as alternative "treatment standards."
Site Visit
Conduct a site visit during an initial stage of a treatability study, especially if
the potential treatment technology will involve the use of an in situ process or
will include how to ascertain the emissions resulting from any excavation. The
RPM also can oversee the feasibility of using a treatment process as well as
verifying the data generated by the treatment study.
Treatability
Study
Evaluation
Report
Review and approve the draft PRP Treatability Study Evaluation Report with
input and comments from the TST, ORD, other support staff, and State to
ensure that
• The performed work satisfies Federal and State requirements to conduct
the test;
• Technologies for treatment include innovative technologies where possible;
• The type and volume of waste to be treated, media of contamination, and
area required for treatment process are identified;
• Treatment levels (for example, land ban, percentage or order of magnitude
reduction expected, MCLs (or MCLGs greater than zero) satisfied) are
discussed;
• Residual levels (e.g. RCRA clean closure, National Pollutant Discharge
Elimination System (NPDES) limits, and RCRA delisting, as appropriate)
are discussed; and
• The assumptions, implementation requirements, specific limitations, and
uncertainties used at the site are explained.
Administrative
Record File
Continually update the Administrative Record File and cost recovery
documentation.
6.5
DELIVERABLES DURING TREATABILITY STUDIES
The deliverables relating to treatability studies will be submitted by the PRPs
during the post-AOC scoping and the site characterization tasks. During post-
AOC scoping, the RPM will review and approve the PRPs' Technical
Memorandum Identifying Candidate Technologies and review and approve or
comment on revisions or amendments to the PRP Project Plans (Work Plan,
SAP, HSP). During site characterization, the RPM will review and approve
the draft and final PRP Treatability Study Evaluation Report.
6-5
-------
As a guide for reviewing the PRP treatability study deliverables, the RPM
should use the "effectiveness of treatment technology for contaminated soils"
matrix presented in Figure 6-2 (taken from the "Summary of Treatment
Technology Effectiveness for Contaminated Soils," EPA/540/2-89/053,
February 1989). This figure identifies which treatment technology is effective
or ineffective on a particular type of soil contaminant until EPA develops
standard soil cleanup levels. The RPM can obtain additional, up-to-date
information by contacting ORD's SITE Program and ATTIC database.
The PRP deliverables during treatability studies should answer questions in the
following categories:
• Technical Memorandum Identifying Candidate Technologies
- Does this memorandum address innovative technologies, as appropriate,
such as those developed in ORD's SITE Program?
Is it clear which treatability studies will be needed and why, or which
studies will not be needed and why not?
Do experts from ORD or TST concur on the kinds and number of
treatability studies that the PRPs should perform? What about
qualifications of all parties to conduct the treatability studies?
Will the samples collected for treatabitity studies be representative of
the contaminated media even when multiple kinds of hazardous
substances are present?
- Does the memorandum contain a discussion of treatment and residual
levels that can be attained by each treatability study?
Do the proposed technologies correspond to the predicted treatment
effectiveness for contaminated soil (see Figure 6-2), if applicable?
• Revised or Amended PRP Project Plans
- Do the original or amended Work Plan, SAP, and HSP address the need
for treatability studies?
- Does the PRP treatment process meet EPA protocols?
- Have the TST, ORD, State, or other experts agreed on the revisions or
amendments to the PRP Project Plans?
• Interim and Final Treatability Study Evaluation Report
- Did the report document a complete description of the following:
— Name and type of treatability study;
-- Reason for and usefulness of conducting study;
— Treatment and residual levels to be attained, if known;
— Personnel that conducted study;
— Name of laboratory evaluating data; and
— Results of study - What worked? What didn't work and why?
6-6
-------
Figure 6.2 Potential Treatment Effectiveness For Contaminated Soil
Example
Contaminant
DDT.
DDE
Vinyl Chloride
Trichlofoethylene
Toupiune, Lindane
TNT.RDX
Banene. Toluene
TCB.PCE
Chromium, Copper,
Aluminum, Zinc
Anenic, Cadmium, Lead,
Mercury, Silver
~^^^-^^^TTechnology
Treatablllty Group — — .
Non-polar Halogenaled
Aromatici
(WO1)
PCBi, Halogenated Dioiins,
Furans, and ibeir Precunon
(WO2)
Halogenaied Phenoli, Cruols,
Amines, Thioli, and Other Polar
Aromatici (WO3)
Halogenated
Aliphatic Compounds
(WO4)
Halogenated Cyclic Aliphalict,
Elhen, Eflen, and Ketonet
(WO5)
Nitrated Compoundi
(WO6)
Heterocyclici and Simple
Non-halogenaled Aromatici
(WOT)
"Poh/nuciear
Aromatici
(WO8)
Other Polar Non-halogenaled
Organic Compounds
(W09)
Non-volatile
Metali
(W10)
Volatile
Metali
(Wll)
Thermal
Destruction
•
•
•
•
•
•
•
•
•
o1
x1
Dechlorinatlon
Q
Q
Q
Q2
Q1
O1
o2
o2
O2
O1
O1
4
Bloremedlation
Q3
e
Q
e2
e1
e
®2
Q
Q2
o x1
ox1
Low Temperature
Thermal Desorptlon
• Q
o1
e
•
o1
o1
•
o
0
o1
o1
Chemical Extraction
and Soil Washing
e
Q
Q
O
Q1
Q
Q
Q
e
Q
Q
Immobilization
e
Q1
Q3
«2
Q1
Q1
Q2
Q
Q2
•3
•
Dononilraled Effectivenai (>90% average removal efficiency)
Potential Effectiveness (>70% average removal efficiency)
No Expected Effectiveneii (no expected interference to proceii)
(<70% average removal efficiency)
No Expected Effectivenesi (potential advene effect! to environment or process)
1 Data were not available for this Ireaubilily group. Conclusion! are drawn from data for compound!
wilh similar physical and chemical characteristies.
2
High removal efficiencies implied by the data may be due to volatilization or soil washing.
' The predicted effectiveness may be different than the data imply, due to limitations in the lest
condition!.
These technologies may have limited applicability to high levels of organici and should not be used for
volatile organics.
Source: Summary of Treatment Technology Effectiveness for Contaminated Soil EPA/S40/2-89/053
-------
- Did the treatment technology data generated satisfy QA/QC concerns?
- Have the treatability study results been reviewed by experts on the
TST, ORD, ESD, and State?
Are the treatability study results documented in the draft and final RI
Report?
6.6
General
References
FOR FURTHER INFORMATION
• National Contingency Plan (NCP), 40 CFR 300.430(d).
• Guide for Conducting Treatability Studies Under CERCLA, EPA/540/2-
89/058, ORD, December 1989.
• Treatability Studies Under CERCLA: An Overview OSWER Directive No.
9380.3-02FS, December 1989.
• Guidance for Conducting RI/FS Under CERCLA, OSWER Directive No.
9355.3-01, Chapter 5, October 1988.
• The Remedial Investigation - Site Characterization and Treatability
Studies, OSWER Directive No. 9355.3-01FS2, November 1989.
• Enforcement Project Management Handbook, OSWER Directive No.
9837.2-A, January 1991.
• Guide to Treatment Technologies for Hazardous Wastes at Superfund Sites,
EPA/540/2-89/052, March 1989.
• Model Statement of Work for RI/FS Conducted by PRPs, OSWER
Directive No. 9835.8, June 2, 1989.
Treatability
References
Compendium of Technologies Used in Treatment of Hazardous Wastes,
EPA/625/8-87/014, ORD/CERI, September 1, 1987.
Inventory of Treatability Study Vendors Vol. 1 and Vol. 2, Draft Interim
Final, Pre-publication version, December 1989.
Treatment Technologies for Hazardous Wastes at Superfund Sites - A
guide, EPA/540/2-89/052, OERR, February 1989.
Technology Screening Guide for Treatment of CERCLA Soils and Sludges,
EPA/540/2-88/004, OERR, September 1, 1988.
Superfund Innovative Technology Evaluation (SITE) Strategy and Program
Plan, OSWER Directive No. 9380.2-3, December 1986.
Analysis of Treatability Data for Soil and Debris: Evaluation of Land Ban
Impact on Use of Superfund Treatment Technologies, OSWER Directive
No. 9380.3-04, November 30, 1989.
6-8
-------
Present and
Future
References
6.7
Personnel
Treatment Technology Bulletins, which are being developed by OERR and
ORD. The initial bulletins will address the following:
• Soil Washing Treatment (EPA/540/2-90/017, September 1990).
• Slurry Biodegration (EPA/540/2-90/016, September 1990).
• Chemical Dehalogenation Treatment APEG Treatment (EPA/540/2-
90/015, September 1990).
• Solvent Extraction Treatment (EPA/540/2-90/013, September 1990).
• Mobile/Transportable Incineration Treatment (EPA/540/2-90/014,
September 1990).
• Soil Washing and Solvent Extraction.
• APEG Treatment.
• Slurry Biodegradation and Incineration.
• Low Temperature Thermal Desorption.
• In Situ Biodegradation.
• In Situ Vitrification,
• In Situ Steam Extraction.
• In Situ Soil Vapor Extraction.
Due in FY91:
• Granular Activated Carbon Treatment.
• EPA Technology Preselection Data Requirements.
• In Situ Soil Flushing.
• Chemical Oxidation Treatment.
• Control of Air Emissions from Material Handling.
• Air Stripping of Liquids.
More information on these bulletins can be obtained by contacting the ORD
office in Cincinnati, OH (FTS) 398-8444.
RESOURCES AVAILABLE TO THE RPM
• Regional Staff (Peer Review, TST, ORC, Management Review Team,
ESD).
• Oversight Assistant.
6-9
-------
• ORD (Technology Support Centers, SITE, START, TAP, ATTIC,
Technology Forums).
• Headquarters Staff (OWPE, OGC, OE - Superfund Division).
• Other Federal Agencies (USCOE, USDA-SCS).
• States.
• CLP or non-CLP Laboratories.
Documents • Original or amended Project Plans (Work Plan, SAP, HSP).
• List of Candidate Technologies.
• ORD Publications and Databases.
Data • Site characterization data.
• Sampling analysis and well drilling core data.
• Literature search.
• Kinds of Studies - laboratory, bench-scale, or pilot-scale.
• Treatment and residual levels to be attained.
6.8 HELPFUL HINTS FOR THE RPM
During the treatability study task, the RPM should ensure that:
• PRP Project Plans address treatability studies;
• Treatment technologies focus on ground water and on the principal threats
to protect human health and the environment, maintain this protection
over time, and minimize the amount of untreated waste;
• Treatment technologies address concerns relating to emissions during
excavations;
• Treatment and residual levels are identified for each treatability study;
• Only technologies that are not cost prohibitive and that are potentially
effective in treating the waste should be considered;
• Advice can be obtained from members of the TST, ORD, State, or other
expert support staff on the number and type of treatability studies to be
performed;
• Innovative technologies have been considered to the extent practicable; and
6-10
-------
• PRPs obtain representative samples, properly ship hazardous materials,
properly dispose of test residuals, and identify the risks to communities
and workers during each test.
To help minimize the time spent on treatability studies, the RPM should:
• Verify, in post-AOC scoping, the need for treatability studies and the list
of candidate technologies;
• Contact a representative from ORD to obtain latest information on
conducting treatability studies and obtain the most current list of
demonstrated and innovative treatment technologies;
• Include a representative from one of ORD's programs on the TST, or
ensure that one is present during one of the post-AOC scoping meeting;
• Determine early in post-AOC scoping the type of treatability studies
needed - laboratory, bench-scale, pilot-scale;
• Verify the qualifications of the participants, the laboratory, and the
equipment that will perform the studies;
• Notify PRPs and, if necessary, EPA counsel of any noncompliance;
• Review content of draft and final Treatability Study Evaluation Report
deliverable and request comments from TST, ORD, and State; and
• Make sure that sufficient information on the treatment technologies is
collected to determine whether the technology can achieve remediation
goals and support the FS analysis based on the nine evaluation criteria.
6-11
-------
CHAPTER 7
DEVELOPMENT AND SCREENING OF ALTERNATIVES
7.1 INTRODUCTION
The process of developing and analyzing an appropriate list of RA alternatives
(usually no more than four to five for a site of average complexity) is one of
the initial tasks of the FS. This list of RA alternatives uses the PRGs
generated in post-AOC scoping, modified when appropriate (using the RI and
ARARs) to refine remediation goals and establish the performance standards
to be attained at each particular site. After the performance standards are
refined, remedial action alternatives should be compared to the expectations
(stated in the NCP Section 300.430), which include:
• Treatment controls to address principal threats of contamination;
• Engineering (or containment) controls to address low-level threats or
where treatment is impracticable;
• A combination of treatment, engineering, and institutional controls where
appropriate;
• Institutional controls (such as water use and deed restrictions) as
supplements to engineering controls;
• Innovative technologies which offer the potential for comparable or
superior treatement performance when compared to the performance of
demonstrated technologies; and
• Return usable ground waters to their beneficial uses wherever practicable
in a reasonable timeframe.
Note: Development of a range of alternatives may not be necessary in all
situations (for example, sites with large volumes of low level
contamination, sites where treatment is impracticable, and sites where
treatment of the entire site is cost prohibitive). In these situations, the
formal screening process may not be necessary due to the limited
number of alternatives.
The aim of this task is to devise a complete and concise list of remedial
alternatives and screen this list, if necessary, according to cost, effectiveness,
and implementability. Screening may not be needed if only a small number of
alternatives are developed by the PRP (see note above). In either case, the
PRP must generate a comprehensive list that covers the range of reasonable
alternatives from which the RPM will be able to select a proposed remedy.
7.2 PURPOSE AND GOAL FOR THE RPM
During the development and screening of alternatives, the PRP should develop
a reasonable range of preliminary alternatives to meet the preliminary remedial
action goals and then screen the alternatives that are not effective, or
implementable, or that are grossly excessive in cost.
7-1
-------
When developing a preliminary list of the alternatives, the RPM should review
the alternatives for completeness and accuracy, and for technologies which
have shown potential success at other sites, or which are innovative and offer
the potential for comparable or superior treatment performance.
When screening alternatives, the RPM should ensure that only those
alternatives that are unnecessary, duplicative, or impracticable or eliminated.
The most efficient way for the PRP to present the range of alternatives is as
an alternatives array document, which usually contains the following:
• Media of concern;
• Remedial action objectives;
• General response actions;
• Remedial technology and type;
• Process options based on technical practicability;
• An evaluation of the options based on effectiveness, implementability, and
cost; and
• An alternative based on the control or combination of controls to
remediate the affected media.
An example of an alternatives array document is provided in the RI/FS
Guidance, Figure 4-6. The alternatives array document should be part of the
final FS Report.
7.3 TIMEFRAME
The development and screening of alternatives begins while site
characterization activities are underway and field information is gathered on
the alternatives. The initial task of the FS, development and analysis of the
alternatives, should take up to three months. The completion of this task is
dependent on the following factors:
• Size or complexity of the site;
• Number of operable units, if necessary;
• Number of location- and action-specific ARARs triggered (particularly
land disposal restriction (LDR));
• Number of alternatives that need to be developed; and
• Content and quality of the alternatives array document to be included in
the FS Report.
7-2
-------
7.4
HOW TO OVERSEE THE DEVELOPMENT AND SCREENING OF
ALTERNATIVES
During pre-RI/FS negotiation scoping, the RPM and oversight assistant should
have developed a nondetailed conceptual model and identified preliminary site
objectives, including site remediation goals. During post-AOC scoping, the
conceptual model and site objectives, and remediation goals may have been
modified by EPA, or in limited cases by the PRPs and approved by EPA.
Modifications may have been included in the PRP Project Plans and used to
help determine the need to perform field activities. During the development
and screening process, PRPs use existing data from all of the planning and
field activities, and the site performance standards established by the oversight
team, to devise a list of alternatives that address how to treat or control all
hazardous substances at the site, including any residuals.
The RPM and the oversight assistant can oversee the PRPs' development and
screening of alternatives by performing the activities described in the
following sections.
Oversight
Team Meeting
Meet with the oversight team to establish site performance standards and
review the PRPs1 refined conceptual model and site objectives, including
remediation goals, for consistency with performance standards.
Relevant
Guidance
Supply the PRPs (and subcontractors) with relevant guidance. Give the PRPs
an example of an alternative array document and the contents of an alternative
description. The description of each alternative should address the following:
• Approximate volumes of material to be remediated;
• Implementation of requirements and timetables;
• Method of remediation and general response actions for each medium;
• Remedial technologies (treatment or containment) and process options;
• Monitoring procedures;
• Capital, operation and maintenance (O & M) costs;
• Need for 5-year review; and
• ARARs triggered (particularly LDRs).
Focus the FS Use the NCP expectations (see Figure 2-5, Program Overview) to focus the FS
on only those alternatives that are appropriate to the site circumstances,
including the following:
• The site is straightforward and it would be inappropriate to develop a full
range of alternatives;
• The need for prompt action outweighs the need to examine all appropriate
alternatives (in this case, an interim or removal action would be the
7-3
-------
appropriate avenue and an Engineering Evaluation/Cost Analysis (EE/CA)
may be necessary); and
• ARARs, relevant guidance, or precedents at other sites indicate that there
are only a limited number of alternative.
Note: The EE/CA is an analysis of removal alternatives conducted for a site
when a removal action is appropriate.
ARARs and Have the PRPs develop a list of action-specific ARARs and draft a technical
Technical memorandum documenting the revised remedial action objectives based on
Memoranda EPA's Baseline Risk Assessment. (Remember that chemical- and location-
specific ARARs were developed in post-AOC scoping.) This technical
memorandum needs to address source control actions and groundwater
response actions.
Sources of ARAR guidance include:
• NCP Preamble, 55 Federal Register 8740-66 (March 8, 1990).
• CERCLA Compliance With Other Laws Manual, EPA/540/G-89/006,
August 1988.
• CERCLA Compliance With Other Laws Manual, Part II. Clean Air Act and
Other Environmental Statutes and State Requirements, EPA/540/G-
89/009, August 1989.
Meeting
Conduct a meeting with oversight assistant and TST (including State), to
discuss the ARARs identified for the site and how the PRPs can meet these
ARARs (or obtain a waiver).
Range of Review the PRPs' range of alternatives against the program goals and
Alternatives expectations (see the preamble to the final NCP, 55 Federal Register 8666, pp.
8702-8707, or Section 300.430(aXlX"i)) to see if the PRPs' proposed
technologies can help guide the development of alternatives, as well as satisfy
the individual site objectives so that the PRPs fully consider the most
promising alternatives. (See the RI/FS Guidance for an example of a generic
alternative development process. Also see Figure 4-2.)
Screened Review the PRPs' screened alternatives (if the number of alternatives requires
Alternatives screening) to ensure that alternatives satisfy the NCP's cost, effectiveness and
implementability criteria. Examine how the alternatives will meet Federal and
State ARARs or whether a waiver of ARARs will be necessary. (See the
RI/FS Guidance for an example of the screening process.)
Technical Review, with the oversight assistant and members of the TST, the content of
Memoranda the technical memorandum summarizing the work performed and the results of
Review each activity, including the alternative array document.
7-4
-------
Administrative
Record File
Document the development and screening process in the Administrative
Record File and compile information for cost recovery documentation.
Fact Sheet If appropriate, have the oversight assistant or PRP create a fact sheet to release
to the public on the results of the development and screening process.
7.5
DELIVERABLES DURING DEVELOPMENT AND SCREENING OF
ALTERNATIVES
The RPM approves and comments on the PRPs' Technical Memorandum
Documenting the Revised Remedial Action Objectives and the Technical
Memorandum on Remedial Technologies, Alternatives, and Screening. The
RPM will verify that these deliverables answer the following types of
questions:
• Memorandum Documenting the Revised Remedial Action Objectives
- Does this memorandum specify each contaminant and media of
concern?
Does this memorandum identify each exposure route and receptor?
Does this memorandum identify EPA's remediation goals for each
exposure route?
• Memorandum on Remedial Technologies, Alternatives, and Screening
Does this memorandum identify which media are affected and how the
response actions, remedial technologies (including innovative
technologies), and representative process options are developed for
each medium?
- Did the PRPs consider NCP expectations to develop the alternatives?
- Does the PRP range of alternatives address, as needed, the appropriate
site controls - treatment, engineering (or containment), institutional, or
a combination of treatment, engineering, or institutional - and a no-
action alternative?
Did the PRPs screen the alternatives using grossly excessive cost,
effectiveness, and implementability in accordance with the NCP
Section 300.430(eX7)?
Does a preliminary review suggest that each alternative will meet
identified ARARs or that a waiver of ARARs will be appropriate?
Does this memorandum contain complete descriptions of each
alternative and an alternatives array document?
Was there noncompliance which warrants notification to the PRPs and,
if necessary, to EPA counsel?
7-5
-------
7.6
7.7
Personnel
FOR FURTHER INFORMATION
• National Contingency Plan (NCP), 40 CFR 300.430
• Guidance for Conducting RI/FS Under CERCLA, OSWER Directive No.
9355.3-01, Chapter 4, October 1988.
• The Feasibility Study - Development and Screening of Remedial Action
Alternatives, OSWER Directive No. 9355.3-01FS3, November 1989.
• Enforcement Project Management Handbook, OSWER Directive No.
9837.2-A, January 1991.
• Model Statement of Work for RI/FS Conducted by PRPs, OSWER
Directive No. 9835.8, June 2, 1989.
• CERCLA Compliance With Other Laws, OSWER Directive No. 9234.1-
010, Augusts, 1988.
• CERCLA Compliance With Other Laws Manual: Part II. Clean Air Act
and Other Environmental Statutes and State Requirements, OSWER
Directive No. 9234.1-02, August 1989.
• Compendium of Technologies Used in Treatment of Hazardous Wastes,
EPA/625/8-87/014, September 1, 1987.
RESOURCES AVAILABLE TO THE RPM
• Regional Staff (Peer Review, TST, ORC, ESD).
• Oversight Assistant.
• ORD (Technology Support Centers, START and SITE Programs,
Technology Forum Representatives).
• Headquarters Staff (OWPE, OGC, OE - Superfund Division).
• Other Federal Agencies (ERT, USCOE).
• States.
Documents • Project Plans (Work Plan, SAP, HSP).
• Site Characterization Summary.
• Baseline Risk Assessment Report.
• Treatability Study Evaluation Report.
• Draft RI Report.
7-6
-------
Data • List of remedial action objectives.
• List of remedial technologies.
• List of Federal and State ARARs.
• Site Characterization Data.
• Baseline Risk Assessment Data.
• Treatability Study Data.,
7.8 HELPFUL HINTS FOR THE RPM
During the alternatives development and screening task, the RPM should
address the following:
• Alternatives that address worst problems first;
• Alternatives that follow the NCP expectations;
• Alternatives that are not grossly excessive in cost, are effective and
implementable, and practicable; and
• Alternatives that satisfy site objectives.
To help minimize the time spent on developing and screening of alternatives,
the RPM should:
• Focus, during post-AOC scoping, on the PRPs' preliminary list of
alternatives in its Project Plans;
• Supply the PRPs with an alternative array document and an outline for
each alternative's description;
• Verify the PRPs' action-specific and location-specific ARARs with the
oversight assistant and TST (including State and other Federal agencies);
• Review the PRPs' screening process to identify alternatives that satisfy
cost, effectiveness, and implementability criteria in NCP Section
300.430(eX7);
• Realize that in certain site situations, the PRPs will not need to develop a
full range of alternatives for each contaminant or medium of concern; and
• Notify PRPs and, if necessary, EPA counsel of any noncompliance in
performing this task.
7-7
-------
CHAPTER 8
DETAILED ANALYSIS OF ALTERNATIVES
8.1 INTRODUCTION
Detailed analysis of developed and screened alternatives is the final task of the
FS prior to issuance of the draft and final FS Report. Detailed analysis
involves evaluating each screened alternative against EPA's set of nine
evaluation criteria and then comparing the relative performance of the
alternatives against the criteria. The nine evaluation criteria should serve as a
tool for selecting the appropriate remedy. The aim of the RPM is to document
the detailed analysis through review and approval of a PRP-generated
memorandum, which summarizes the results of the comparative analysis. The
PRPs develop a draft and final FS Report, which also requires EPA review
and approval.
8.2 PURPOSE AND GOAL FOR THE RPM
During the detailed analysis of alternatives, the PRPs evaluate how the
screened alternatives compare with EPA's nine evaluation criteria. The PRP
also should compare each of the screened alternatives against eachother to
identify the key tradeoffs between the potential remedies. A viable remedy
will be an alternative that is protective of human health and the environment,
complies with or justifies a waiver of ARARs, is cost-effective, and utilizes
permanent solutions and alternative treatment technologies to the maximum
extent practicable.
8.3 TIMEFRAME
The detailed analysis of alternatives, like the development and screening
phases, is a non-field activity that can take up to two months. The completion
of the detailed analysis, however, is dependent on the following:
• Size or complexity of the site;
• Number and range of alternatives; and
• Content and quality of the detailed analysis study in a PRP memorandum
and a draft and final FS Report.
8.4 HOW TO OVERSEE THE DETAILED ANALYSIS OF ALTERNATIVES
During the previous task of developing and screening alternatives, alternatives
were identified that satisfy the cost, effectiveness, and implementability
criteria. The PRPs now evaluate each screened alternative against EPA's nine
evaluation criteria (see Figure 8-1) where each criterion is given equal weight.
As part of this evaluation, the PRPs compare each screened alternative against
each other and identifies any key tradeoffs that may be helpful to consider
during the selection of remedy phase.
8-1
-------
Figure 8-1. Summary of Nine Evaluation Criteria
For additional information on the Nine Evaluation Criteria, see the
NCP, 40 CFR 300.430(d)
1.
2.
3.
4.
5.
6.
7.
8.
9.
Overall protection of human health and the environment — describes how
existing and potential risks from pathways of concern are eliminated, reduced, or
controlled through treatment, engineering controls, institutional controls or by a
combination of controls.
Compliance with ARARs — addresses whether an alternative meets its
respective chemical-, location-, and action-specific requirements or can invoke a
waiver for an ARAR.
Long-term effectiveness and permanence — evaluates performance alternatives
in protecting human health and the environment after response objectives have
been met and includes:
~ Magnitude of residual risk (untreated waste and treatment residuals)
~ Adequacy and reliability of controls (engineering and institutional) used
to manage untreated waste and treatment residuals over time.
Reduction of toxicity, mobility, or volume through treatment — assesses
performance of alternatives in terms of reducing toxicity, mobility, or volume
through treatment and whether or not statutory preference for treatment as a
principal element is satisfied.
Short-term effectiveness — addresses the impacts of alternatives on human
health and the environment during construction and implementation until
response objectives are met and the length of time until protection is achieved.
Implementability — assesses degree of difficulty and uncertainties with
undertaking specific technical and administrative steps and the availability of
various service and materials.
Cost— addresses costs of construction (capital) and necessary costs of
operation and maintenance (present worth analysis assumes 10 percent discount
rate, and the period of performance for costing purposes should not exceed 30
years).
State (support agency) acceptance — evaluates technical and administrative
issues and concerns the support agency may have regarding each of the
alternatives.
Community acceptance — evaluates issues and concerns the community may
have for each alternative.
8-2
-------
The RPM and oversight assistant can oversee the detailed analysis of
alternatives by performing the activities described in the following sections.
Relevant
Guidance
Supply the PRPs (and subcontractors) with relevant guidance. Give the PRPs
a good example of a detailed analysis memorandum and an FS Report.
Screened Review the PRPs' analysis of each screened alternative against each of EPA's
Alternatives nine evaluation criteria with the oversight contractor and TST.
Note: This is a qualitative evaluation where each criterion is evaluated on a
relative basis.
Note: The oversight team should scrutinize any containment-only remedies
and determine if there are any "hot spots" of contamination that should
be addressed through treatment.
Comparative Review the PRPs' comparative analysis of alternatives against each other and
Analysis identify key tradeoffs (strengths and weaknesses) among the alternatives.
Management Conduct a management review meeting with Regional managers, oversight
Review assistant, TST, and State to review the comparative study in the detailed
analysis memorandum and FS Report.
Administrative
Record File
Document the FS report in the Administrative Record File and update
expenses for cost recovery documentation purposes.
Fact Sheet
Final FS
Report
If appropriate, develop a fact sheet or assign it to the oversight assistant to
allow public input and/or conduct a public meeting on the FS Report.
(Alternatively, public input on the FS Report can be obtained in conjunction
with the Proposed Plan.)
Consider comments on the FS Report from the State and incorporate these
comments, if applicable, into the final FS Report.
8.5
DELIVERABLES DURING THE DETAILED ANALYSIS OF ALTERNATIVES
During the detailed analysis task, the RPM reviews and approves the following
PRP deliverables: the Technical Memorandum Summarizing the Results of the
Individual and Comparative Analyses of Alternatives and the draft and final
FS Report. The RPM should verify that these deliverables answer questions in
the following areas:
• Memorandum Summarizing the Results of the Comparative Analysis of
Alternatives
- Does this memorandum address each of the nine evaluation criteria?
8-3
-------
8.6
8.7
Personnel
- Does this memorandum include a comparison of alternatives against
each other to identify tradeoffs?
• Draft FS Report
- Similar questions as above.
- Are the strengths and weaknesses of the different alternatives clearly
described between each other?
FOR FURTHER INFORMATION
• National Contingency Plan (NCP), 40 CFR 300.430{d).
• Guidance for Conducting RI/FS Under CERCLA, OSWER Directive No.
9355.3-01, Chapter 6, October 1988.
• Enforcement Project Management Handbook, OSWER Directive No.
9837.2-A, January 1991.
• Model Statement Work for RI/FS Conducted by PRPs, OSWER Directive
No. 9835.8, June 2, 1989.
t CERCLA Compliance With Other Laws, OSWER Directive No. 9234.1-
010, August 8, 1988.
• CERCLA Compliance With Other Laws Manual: Part II. Clean Air Act
and Other Environmental Statutes and State Requirements, OSWER
Directive No. 9234.1-02, August 1989.
• Compendium of Technologies Used in Treatment of Hazardous Wastes,
EPA/625/8-87/014, September 1, 1987.
RESOURCES AVAILABLE TO THE RPM
• Regional Staff (Peer Review, TST, ORC, ESD).
• Oversight Assistant.
• ORD (Technology Support Centers, START and SITE Programs,
Technology Forum Representatives).
• Headquarters Staff (OWPE, OGC, OE - Superfund Division).
• Other Federal Agencies (ERT, USCOE).
• States.
Documents • Project Plans (Work Plan, SAP, HSP).
• Site Characterization Summary.
• Baseline Risk Assessment Report.
8-4
-------
• Treatability Study Evaluation Report.
• Draft RI Report.
• Revised Remedial Action Objectives Memorandum.
• Remedial Technologies, Alternatives, and Screening Memorandum.
Data • List of revised remedial action objectives.
• List of revised remedial technologies.
• List of Federal and State ARARs.
• Site Characterization Data.
• Baseline Risk Assessment Data.
• Treatability Study Data.
• List of Screened Alternatives, if applicable.
8.8 HELPFUL HINTS FOR THE RPM
During the detailed analysis of alternatives task, the RPM should ensure that:
• PRPs addresses all nine criteria in its detailed analysis;
• PRPs compares each screened alternative against each other;
• RPM receives input from the oversight assistant, TST (including State),
and the Regional management review team on the completeness of the
detailed analysis;
• PRPs are not slanting analysis of alternatives, without the appropriate
justification, towards no or little action;
• PRPs are not slanting analysis of alternatives, without the appropriate
justification, towards the least costly remedy; and
• Alternatives are protective of human health and the environment and meet
ARAR(s) or can qualify for a waiver of ARARs.
The RPM can help minimize the time spent on the detailed analysis of
alternatives by:
• Supplying the PRPs with sample documents of a detailed analysis technical
memorandum and an FS Report;
• Ensuring that the PRP analyzes each screened alternative against each of
the nine evaluation criteria without assigning greater weight to any
criterion;
8-5
-------
• Ensuring that the PRPs perform the comparative analysis of screened
alternatives against each other to identify individual advantages and
disadvantages and tradeoffs; and
• Reviewing, with the oversight assistant, TST (including State), and the
Regional management review team, the quality and content of the detailed
analysis memorandum and the draft and final FS Report; and
• Notifying PRPs and, if necessary, EPA counsel of any noncompliance in
performing this task.
8-6
-------
APPENDIX A
TECHNICAL RESOURCES AVAILABLE THROUGHOUT THE RI/FS
Although the EPA remedial project manager (RPM) is ultimately responsible
for overseeing a remedial investigation/feasibility study (RI/FS) led by
potentially responsible parties (PRPs), the RPM has many different technical
resources available to assist with or carry out the RI/FS oversight. These
include resources from within the EPA Regional office, EPA Headquarters
offices, EPA contractors and consultants, other Federal agencies and
departments, and State and local governments.
Chapter 1.1 of this guidance addresses the role of the RPM and his or her
designated oversight assistant. This appendix helps to identify further
resources that can assist the RPM and oversight assistant during the different
phases of the RI/FS. Obtaining access to a resource for oversight activities
may require the RPM to have funds available to transfer to the selected
resource. The RPM may also be required to complete work-initiation forms
and attach a Statement of Work (SOW) or work assignment. In all cases, it is
important for the RPM to identify during the pre-RI/FS negotiation scoping
phase the oversight resources that will be most appropriate and the
requirements for obtaining access to them.
A.I HEADQUARTERS ASSISTANCE
Office of Waste Programs Enforcement (OWPE) - The CERCLA
Enforcement Division can assist in the review of legal or technical documents
or respond to questions about oversight implementation or procedures. OWPE
Regional Coordinators should be the prime point of contact.
• CERCLA Enforcement Division (FTS) 398-8404
or (703) 308-8404
• Guidance and Evaluation Branch (FTS) 475-6770
• Compliance Branch (Regional Coordinators) (FTS) 398-8484
or (703) 308-8484
Office of Emergency and Remedial Response (OERR) - The Hazardous Site
Control Division (HSCD) can assist in the review of technical documents or
respond to questions on implementing procedures for Fund-lead sites. HSCD
publishes the "Superfund Records of Decision (ROD) Update" to aid RPMs in
developing RODs by providing useful information and a means for RPMs with
similar site issues to interact. OERR Regional Coordinators should be the
prime point of contact.
• Hazardous Site Control Division (FTS) 398-8313
or (703) 308-8813
• Remedial Operations and Guidance (FTS) 398-8444
Branch or (703) 308-8444
• Design and Construction (FTS) 475-6707
Management Branch or (703) 308-8393
A-l
-------
• State and Local Coordination (FTS) 398-8380
Branch or(703) 308-8380
Office of General Counsel (OGC) - OGC can provide assistance in reviewing
legal or technical documents or respond to questions about oversight
implementation, NCP procedures, or legal questions under CERCLA.
Generally, contact with OGC is made through the Office of Regional Counsel
(ORC) or OWPE/OERR Regional Coordinators.
Office of Enforcement (OE) - OE can provide additional assistance in
reviewing legal documents responding to legal questions about CERCLA, NCP
procedures, and oversight implementation, and taking enforcement actions. In
addition, the Regional Coordinators for Federal facilities are now in OE.
Generally, contact with OE is made through each Region's ORC.
Office of Research and Development (ORD) - Contact with ORD can be made
through the ORD Regional liaison in each Regional office. ORD is located in
Headquarters or in one of the following Technical Support Centers:
• Risk Reduction Engineering Laboratory (RREL) Center for
Engineering Programs and Treatability Studies in
Cincinnati. OH. The center can assist in planning and
researching for Engineering and Treatment Support,
Treatability Assistance Program (TAP), and the Superfund
Technical Assistance Remedial Technology (START) team,
(FTS) 684-7406.
• Environmental Research Laboratory (ERL), Center for
Exposure Assessment and Ecological Risk Technology
Support in Athens, GA. This includes the Center for
Exposure Assessment Modeling (CEAM), (FTS) 250-3134.
• Robert S. Kerr Environmental Research Laboratory
(RSKERL) Center for Groundwater Fate and Transport in
Ada, OK. The laboratory includes the Subsurface
Remediator Information Clearinghouse in Ada and the
International Groundwater Modeling Center at the Holcomb
Research Institute in Indianapolis, IN, (FTS) 743-2224.
• Environmental Monitoring Systems Laboratory (EMSL)
Center for Monitoring and Site Characterization in Las
Vegas, NV, (FTS) 545-2523.
• Environmental Criteria and Assessment Office (ECAO),
Center for Health and Risk Assessment in Cincinnati, OH,
(FTS) 629-4173.
• Other environmental research laboratories are located in
Narragansett, RI; (FTS) 838-6001; Gulf Breeze, FL; (FTS)
686-9011; Duluth, MN; (FTS) 780-5549; and Corvallis, OR,
(FTS) 420-4601.
A-2
-------
Technical assistance is also available through the following programs:
• The RREL Superfund Innovative Technology Evaluation (SITE)
program can assist in conducting or reviewing treatability studies,
screening/analyzing remedial alternatives, and bench/pilot/full-
scale testing of remediation technologies. Access to SITE is
obtained by contacting the ORD Regional liaison (ORD employees)
located in each Region.
• Groundwater and Engineering Technical Support Forums.
Representatives from Groundwater Fate and Transport and
Engineering and Treatment Forums transfer information
between the Technical Support Centers and the Regions.
Most forums are informal sessions organized by Regional
Section Chiefs.
National Enforcement Investigations Center (NEIC) - serves as the principal
source of expertise for civil and criminal litigation, and technical support.
NEIC access usually requires an oral request from a Superfund Branch Chief.
The center, located in Denver, can be reached at (FTS) 776-5100.
A.2 REGIONAL AND NON-EPA ASSISTANCE
RPMs have a wide variety of resources available in the Regional offices.
Initial access to these resources usually requires informal contact (phone call or
visit) between the RPM and staff members in the desired office or division.
Peer Review - Regional in-house peer review can help in responding to
specific technical questions or reviewing technical memoranda and reports
(sometimes exists as a technical support section).
Environmental Services Division (ESD) - Regional ESDs can review site
project plans, oversee field activities, provide blank and spiked samples for
quality assurance, and conduct laboratory and field audits. ESD can oversee
activities up to and including performance of the RI.
Environmental Response Team (ERT) in Edison, NJ - ERT can provide
assistance in conducting and overseeing removal and remedial actions. ERTs
capabilities include review of site project plans and reports, oversight of field
activities, review of conceptual designs, and provision of expert testimony.
Office of Regional Counsel (ORC) - ORC provides primary assistance to the
RPM in reviewing legal documents negotiating orders and decrees, making
referrals to the Department of Justice (DOJ), and taking enforcement actions.
Water Division - Regional Water Division provides information on surface
water and drinking water concerns from the following areas: Office of
Groundwater Protection, Water Quality Planning and Standards Section, Water
Supply Section, Toxicology, and Wetlands.
Air Division - Regional Air Division provides information on air emission and
ambient air standards from the following areas: Toxic Substances Control
Act-PCBs, Modeling, and Air Toxics.
A-3
-------
Waste Management Division - Regional Waste Management Division provides
information on Resource Conservation and Recovery Act waste management
requirements.
Public Affairs - Regional Public Affairs is helpful in disseminating
information to States, local governments, and the community. For example,
the Community Relations Coordinator (usually not in Public Affairs Office)
can assist in implementing a community relations plan (CRP).
A.3 REGIONAL CONTRACTS
EPA maintains several contracts with architectural and engineering firms to
assist EPA Headquarters and Regions in implementing the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). These
level-of-effort (LOE) contracts allow specific tasks to be assigned to the
contractor on an as-needed basis, within the restrictions of the overall contract
SOW and within the technical labor hours and dollar ceilings established by the
contract.
Technical Enforcement Support (TES) Contracts - These are the primary
contracts for overseeing PRPs during CERCLA response activities. These
LOE contracts allow specific tasks to be assigned to the contractor on an as-
needed basis, within the restrictions of the overall contract and within the
technical labor hours and dollar ceilings established by the contract. Oversight
tasks assigned to TES contractors include the following:
• Financial assessments;
• Expert witness/consultant;
• Technical review of documents;
• Records compilation;
• Risk assessment;
• Oversight of field activities, including compliance monitoring;
• Sampling analysis;
• Evidence storage/preservation;
• Special studies;
• Design development, placement, and data evaluation for ground-
water monitoring wells;
• Design and implementation of surface and subsurface site
investigations;
• Collection and evaluation of evidence on PRP waste activity;
• Development of negotiation and litigation strategies;
• Evaluation of PRP settlement offers;
A-4
-------
• Development of mechanisms for financing PRP settlements; and
• Design and preparation of technical assistance training programs on
oversight for RPMs.
These tasks are assigned to the contractor through individual written work
assignments that contain SOWs, delivery schedules, and other performance
schedules. Questions regarding access to TES contractors should be directed to
the appropriate regional contact. Additional information on TES contracts can
be obtained from the TES User Guide," June 1987 and the forthcoming
updated TES User Guide" (planned for early 1992).
Alternative Remedial Contracts Strategy (ARCS) - This program also is used
for overseeing PRPs during CERCLA response actions. The ARCS contracts
are also LOE based. The contracts under this program provide remedial
planning, design, and implementation, as well as site-specific project
management and other technical and management assistance. The ARCS
program incorporated the contracts previously covered by the Remedial
Engineering Management (REM) program. The types of oversight tasks that
may be assigned to an ARCS contractor include the following:
• Project planning;
• Remedial oversight;
• Risk assessment;
• Sample analysis and validation;
• Enforcement support;
• Community relations; and
• Data management.
Questions regarding access to ARCS contractors should be directed to the
appropriate Regional contact. •
Field Investigation Team (FIT) Contracts - Contractors in this program can
assist in collecting and reviewing preliminary assessment/site investigation
(PA/SI) data, scoping and planning schedules, field oversight of site
characterization, and report review. FIT is accessed by issuing a work
assignment through developing a SOW, and working with the Regional FIT
contracting officer.
Technical Assistance Team (TAT) Contracts - This program can assist in
removal actions, oversight of removal actions, and planning and scoping for
interim measures. TAT is accessed by issuing a work assignment through
developing a SOW, and working with the Regional TAT contracting officer.
Emergency Response Cleanup Services (ERCS) Contracts - This program can
assist in emergency response, spill response, oversight of removal actions, and
planning and scoping activities. ERCS is accessed by issuing a work
assignment through developing a SOW, and working with the Regional ERCS
contracting officer.
A-5
-------
Contracting Laboratory Program (CLP) - This program is a major source of
analytical data for use in the RI and Baseline Risk Assessments. CLP is a
nationwide network of contractor laboratories and a major vehicle for
Superfund analysis, especially to provide routine analytical services (RAS) and
special analytical services (SAS). When a non-CLP laboratory is chosen at
PRP-lead sites, CLP is responsible for using split samples as quality assurance
(QA) and quality control (QC) procedures to verify the accountability and
accuracy of the sampling procedures employed at the site. At a minimum, for
enforcement considerations, 10 percent of the samples should be split and sent
to a CLP lab.
For information regarding the CLP, contact the Analytical Operations Branch
of OERR at FTS 382-7906 or the Sample Management Office at (703) 684-
5678. Additional contacts can be obtained from the fact sheet, Contract
Laboratory Program (OSWER Directive No. 9200.5-320 F/S, September 1990).
A.4 OTHER FEDERAL AGENCIES
RPMs also can obtain oversight assistance from other Federal agencies. This
generally requires RPMs to reallocate funds to the appropriate agency through
an interagency agreement (IAG). These lAGs usually are executed in
coordination with a Regional contact in the Region's Superfund Contracts and
Administration Section.
Agency for Toxic Substances and Disease Registry (ATSDR) - A part of the
Centers for Disease Control, ATSDR can assist in determining current or
potential risk to human health that exists at a site. The regional ATSDR
representative should be contacted during pre-PRP negotiation and, if
possible, should be a member of the Technical Support Team (TST).
Department of Defense (DOD) - The U.S. Army Corps of Engineers
(USCOE) - can provide the following:
• Expert witness during RI/FS negotiation and litigation;
• Oversight of field activities;
• Hydrogeologic studies;
• Treatability Studies; and
• Other special studies.
Department of Interior (DOI) - The U.S. Fish and Wildlife Service
(USFWS) - can provide the following:
• Expert witness during RI/FS negotiation and litigation;
• Natural resource endangerment studies; and
• Preliminary Natural Resource Surveys (for migratory birds,
federally listed threatened and endangered species, anadromous
fish, Federal minerals. National Park land, and Tribal Trust
resources).
A-6
-------
DOI - The U.S. Geological Survey (USGS) - can provide the following:
• Expert witness during RI/FS negotiation and litigation;
• Oversight of field activities during RI;
• Hydrogeologic studies; and
• Other special studies.
U.S. Department of Agriculture (USDA) - USDA can provide expertise in
managing agricultural, forest, and wilderness areas. In addition, the Soil
Conservation Service (SCS) can help predict fate and transport of pollutants in
soil, and can provide expertise for the TST when soils are contaminated.
Department of Commerce (DOC) - National Oceanic and Atmospheric
Administration (NOAA) - NOAA can provide information on meteorologic,
hydrologic, ice, and oceanographic conditions for marine, coastal, and inland
waters and can provide expertise on certain living marine resources and their
habitats.
Department of Energy (DOE) - DOE can assist in identifying, removing, and
disposing of radioactive contamination.
Department of Health and Human Services (HHS) - HHS can assist in
assessing site health hazards and protecting site personnel and public health.
Department of Justice (DOJ) - DOJ represents the Federal government in
litigation. The Land and Natural Resources division commonly is involved in
environmental litigation.
Department of Labor (DOL) - DOL can assist in identifying Occupational
Safety and Health Administration (OSHA) requirements for hazardous waste
sites.
Department of Transportation (DOT) - DOT can assist in identifying
requirements for the manifesting and transport of hazardous waste and
materials (see Appendix B in Volume 2 of this manual).
A.5 DATABASES
There are a number of databases available to RPMs through the Regional
libraries or through personal computer (PC)-modem (phone-line) connections
from PCs in their sections. These include commercial, EPA, and other Federal
and State databases. Described below are several of the primary databases that
can assist RPMs with PRP oversight. They generally can be divided into three
types:
Those that track similar components of response actions or case
histories at other sites;
Those that provide detailed sources of data to support the many
types of analyses associated with an RI/FS; and
A-7
-------
Tracking Cut
History
Databases
Technical
Analysis
Databases
• Those that serve as bulletin boards and provide technology transfer
and information on other resources.
Enforcement Document Retrieval System (EDRS) - EDRS is menu-driven and
allows the user to search through EPA enforcement documents by document
category, specified time period, or specified law, or by any word or set of
words within the document text. Three types of documents are routinely
updated: policies and procedures, administrative enforcement, and judicial
action. The system can be accessed by terminals that are direct-wired to
EPA's National Computer Center (NCC) in Research Triangle Park. For
additional information, check the EDRS User's Manual, the Regional EDRS
Contact in ORC, or call OE at (FTS) 382-2614.
Hazardous Waste Casefinder System (Casefinder) - The Casefinder includes
the hazardous waste cases found or cited in the Federal Reporter system, the
Hazardous Waste Litigation Reporter, the Toxics Law Reporter, the Chemical
Waste Litigation Reporter, the Environmental Law Reporter, and a
considerable number of important unreported cases. As of October 1987, 700
Federal court opinions had been categorized and entered into the Casefinder.
New cases are added monthly. In order to use Casefinder, the user must have
a valid user ID to access the NCC in Research Triangle Park. For additional
information concerning Casefinder, contact the OE at EPA Headquarters.
RODS Database - RODS contains Superfund Records of Decision (ROD),
which describe the planned course of action to clean up a site. The database,
installed on a mainframe at EPA's NCC in Research Triangle Park, allows
searching for selected information from ROD documents or National Technical
Information System (NTIS) Abstracts. Access is via modem from a PC.
Register through the RODS Hotline at (202) 252-0056.
Expert Resources Inventory System (ERIS) - ERIS is a searchable database
that contains resumes in summary form and information on qualifications, area
of expertise, and previous experience of specialists available as expert
witnesses or consultants to support hazardous waste enforcement actions. The
database had been classified as "enforcement confidential" and is protected
under the Privacy Act of 1974. The database may be accessed by EPA and
DOJ staff upon request. Users should contact the EPA OWPE for information
on accessing the database.
Hazardous Waste Collection Database (HWCD) - HWCD is a bibliographic
database containing abstracts of EPA and other government agency reports,
commercial books, policy and guidance directives, legislation, and regulations
concerning hazardous waste, is searchable by subject; and has a database
thesaurus to aid users in designing efficient searches. The database is available
through the EPA library system.
Alternative Treatment Technology Information Center (ATTIC) - The ATTIC
system is designed to provide technical information on alternative methods of
hazardous waste treatment. ATTIC is available through any modem-equipped
IBM-compatible PC using standard communications software. The core of the
ATTIC system is the ATTIC database, a keyword-driven system that contains
technical information in the form of abstracts or report summaries from a
variety of sources including the SITE program. States, industry, DOD/DOE,
RODS Database, and treatability studies. Other databases contained in the
ATTIC system that can be directly accessed include:
A-8
-------
• RREL (Water) Treatability Database.
• RSKERL Soil Transport and Fate Database.
• EPA Library Hazardous Waste Collection Database.
• Cost of Remedial Action (CORA) Model.
• Geophysics Advisor Expert System.
Also available through ATTIC is the Computerized On-Line Information
System (COLIS) and its three databases: Case File History, Library Search
System, and SITE Application Analysis Report File. To access ATTIC, contact
the ORD Regional liaison in your Region or the ATTIC system operator at
(301)816-9153.
Integrated Risk Information System (IRIS) - IRIS contains health risk data,
bibliographic and textual information on risk management, water quality
criteria, and drinking water standards. It is available on-line through EPA's
electronic mail system (E-MAIL). To access IRIS through E-MAIL, after
signing on, type "IRIS" at the ">" prompt.
ORD Superfund Remediation Information (SRI) Database - SRI contains
information pertaining to fate, transport, and in-place treatability of
contaminants in subsurface environments. SRI can be used to locate other
information sources pertinent to reclamation of contaminated soils and ground
waters, including planned, active, and completed subsurface remediations.
Users need to contact the ORD RSKERL in Ada, OK, to access the system.
ORD Aid for Evaluating the Redevelopment of Industrial Sites (AERIS) -
AERIS helps make risk-based cleanup calculations at industrial sites. AERIS
evaluates on-site costs for one chemical, one receptor, one land use, and one
environmental setting. It relies on data from past soil contamination. Users
need to contact the ORD RSKERL in Ada, OK, to access the system.
Technical Information Exchange (TIX) - TIX is a compiled database available
on diskettes to EPA Regional and contracts personnel and State personnel.
TIX provides a complete file of each applications analysis for technologies
evaluated under the Superfund Innovative Technology Evaluation (SITE)
program. Diskettes are available from Hugh Masters of EPA ORD at FTS
340-6678.
RISK* ASSIST ANT - RISK*ASSISTANT is a microcomputer software system
designed to help assess health risks posed by hazardous waste.
RISK*ASSISTANT is not a substitute for expert evaluation, but provides easy-
to-use databases and analytical tools that screen potential hazards, exposures,
and risks at hazardous waste sites. RISK*ASSISTANT was developed by the
Hampshire Research Institute, (703) 683-6695, in conjunction with the Office
of Health and Environmental Assessment (OHEA).
CERCLA Scheduling and Cost Estimating Expert System (SCEES) - SCEES is
an expert system under development to provide site-specific Superfund
Comprehensive Action Plan (SCAP) quality schedule and cost estimates for the
RI/FS process. SCEES is a tool for determining timely resource and
A-9
-------
scheduling estimates. For more information on SCEES, contact the CERCLA
program office.
Commercial Databases - DIALOG, Chemical Information System, and BRS
Search Services are examples of commercial databases that abstract information
relevant to EPA's hazardous and solid waste programs and are searchable free
of charge via EPA Headquarters and Regional librarians. For more
information, contact your Regional librarian.
A.6 COMPUTER-BASED BULLETIN BOARD
OSWER Electronic Bulletin Board System (BBS) - OSWER BBS facilitates
communication and the dissemination of information among EPA staff in
Regional offices. Headquarters, and research laboratories. To use the OSWER
BBS, the user needs a PC or terminal, a modem, and a communications
program. To access the OSWER BBS, dial (202) 589-8366 or (301) 589-8366
after setting CrossTalk parameters to 8 data bits, 1 stop bit, and no parity.
Choose a password, complete an on-line registration questionnaire, and within
24 hours you will be a registered user with full access to all features of the
system. The BBS is available to EPA staff and current contractors and State
and Federal agency personnel.
Major features of the OSWER BBS include the following:
• Information bulletins.
• Message exchange.
• File exchange.
• Technical publications ordering.
• On-line databases and directories.
A.7 HOTLINES
EPA Headquarters has established several national telephone hotlines that can
be used by anyone in need of technical assistance or wishing to report
findings. Additional Regional, State, or commercial hotlines may also be
available.
RCRA/Superfund Hotline
National Toll-Free 800-424-9346
EPA's largest and busiest toll-free number, the RCRA/Superfund Hotline
answers nearly 100,000 questions and document requests each year. Hotline
specialists answer regulatory and technical questions and provide documents on
virtually all aspects of the RCRA and Superf und programs. Because of the
complexity and changing nature of these programs, the hotline is used widely
by the regulated community, people involved in managing and cleaning up
hazardous waste, Federal, Suite, and local governments, and the general public.
The RCRA/Superfund Hotline can be reached Monday through Friday from
8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST).
A-10
-------
Federal Facilities Docket Hotline
National Toll-Free 800-548-1016
Washington, D.C., Metro 703-883*8577
Operated by the EPA Office of Federal Facilities Enforcement (OFFE), the
hotline has been in service since 1988. The hotline responds to specific
questions about Federal facility compliance with the docket requirements
outlined in Section 120 of CERCLA, as amended. The hotline can be accessed
Monday through Friday from 8:30 a.m. to 5:30 p.m. EST.
National Response Center Hotline
National Toll-Free 800-424-8802
Washington, D.C., Metro 202-426-2675
Operated by the U.S. Coast Guard, the National Response Center Hotline
responds to all kinds of accidental releases of oil and hazardous substances.
This hotline is available 24 hours a day, 7 days a week, every day of the year.
Chemical Emergency Preparedness Program (CEPP) Hotline
National Toll-Free 800-535-0202
Washington, D.C., Metro and Alaska 202-479-2449
The CEPP Hotline has been in operation since late 1985, responding to
questions concerning community preparedness for chemical accidents. The
Superfund Amendments and Reauthorization Act (SARA) increased the CEPP
Hotline's responsibilities, which now also include Emergency Planning and
Community Right-to-Know and SARA Title III questions and requests. The
CEPP Hotline, which complements the RCRA/Superfund Hotline, is
maintained as an information resource rather than an emergency number.
Calls are answered Monday through Friday from 8:30 a.m. to 4:30 p.m. EST.
National Pesticides Telecommunications Network (NPTN)
National Toll-Free 800-858-7378
(858 -P-E-S-T)
Texas 806-743-3091
Operating 24 hours a day, 7 days a week, every day of the year, the NPTN
provides information about pesticides to the medical, veterinary, and
professional communities as well as to Federal agencies and the general public.
Originally a service for physicians wanting information on pesticide toxicology
and on recognition and management of pesticide poisoning, the NPTN has
expanded to serve the public and Federal agencies by providing impartial
information on pesticide products, basic safety practices, health and
environmental effects, and cleanup and disposal procedures. Staffed by
pesticide specialists at Texas Technical University's Health Sciences Center
School of Medicine, this hotline handles about 18,000 calls each year.
Small Business Hotline
National Toll-Free 800-368-5888
Washington, D.C., Metro 703-557-1938
Sponsored by the EPA Small Business Ombudsman's Program, this hotline
assists small business in complying with environmental laws and EPA
regulations. The Small Business Hotline gives companies easy access to EPA,
and investigates and resolves problems and disputes with EPA. Acting as a
A-ll
-------
liaison with Agency program offices, the hotline ensures that EPA considers
small business issues during its normal regulatory activities. The Small
Business Hotline operates Monday through Friday from 8:30 a.m. to 5 p.m.
EST, handling over 7,000 inquiries each year.
Safe Drinking Water Hotline
National Toll-Free 800-426-4791
Washington, D.C., Metro 202-382-5533
The EPA's Safe Drinking Water Hotline began operating in July 1987. Its
primary function is to assist the public and the regulated community,
including Federal facilities, in understanding EPA's regulations and programs
developed in response to the Safe Drinking Water Act Amendments of 1986.
The hotline service provides information on EPA's drinking water programs,
including the Public Water Supply (PWS1 and Underground Injection Control
(UIC) programs. The hotline operates Monday through Friday (except Federal
holidays) from 8:30 a.m. to 4:30 p.m., EST.
Inspector General's Whistle Blower Hotline
National Toll-Free 800-424-4000
Washington, D.C., Metro 202-382-4977
The EPA Inspector General's Office maintains the Whistle-Blower Hotline to
receive reports of EPA-related waste, fraud, abuse, or mismanagement from
the public and from EPA and other government employees. EPA employees
may make complaints or give information to the Inspector General's Office
confidentially and without fear of reprisal. The Whistle-Blower Hotline is
staffed to answer calls in person from 10 a.m. to 3 p.m. EST, Monday through
Friday. At other times, callers may leave a message to be answered during the
next work day. The hotline handles about 1,500 calls each year.
TSCA Assistance Information Service
Washington, D.C., Metro
202-554-1404
The TSCA Assistance Information Service provides information on TSCA
regulations to the chemical industry, labor and trade organizations,
environmental groups, Federal facilities, and the general public. Technical
and general information is available. To help facilities comply with TSCA, a
variety of services are offered, including regulatory advice and aid,
publications, and audio-visual materials. The TSCA Assistance Information
Service now handles about 2,500 calls a month and can be reached from 8:30
a.m. to 5 p.m. EST, Monday through Friday.
A.8 PUBLICATIONS
There are several compendiums and catalogs of Superfund and hazardous
waste reference materials, guidances, and other publications. RPMs should
check with the Regional or Headquarters librarian for these publications or
sources indicated below.
Catalog of Superfund Program Publications - OSWER Directive No. 9200.7-
02A, October 1990 (85 pages). This catalog provides a reference to policy,
procedural, and technical directives and publications governing the Superfund
program. Regular supplements are planned. Publications abstracted must be
A-12
-------
have copies. Copies of the catalog may be obtained from the Superfund
Document Center by writing the Superfund Documents Coordinator (OS-
240), U.S. EPA, 401 M St. S.W., Washington, DC 20460.
OSWER Directives - System Catalog - OSWER Directive No. 9013.15-3D (30
pages). Provides a list of OSWER Directives published through June 1988.
Each Region also has an OSWER Directive Coordinator.
Superfund Risk Assessment Information Directory - OSWER Directive No.
9285.6-1 (202 pages). Publication Number EPA/540/1-86/061. The directory
identifies and describes sources of information useful in conducting risk
assessments. The directory covers sources of information to aid in hazard
identification, dose-response assessments, exposure assessments, and risk
characterization. Available from the Superfund Document Center.
Annotated Technical Reference for Hazardous Waste Sites
Contact OWPE CERCLA Guidance and Evaluation Branch, at (FTS)
475-6770.
This reference, though still in draft, provides information on 14 common site
types: asbestos, battery recycling/lead, dioxins, landfills, metals, mining
wastes, mixed waste, multi-source ground water, munitions, PCBs, pesticides,
plating, solvents, and wood preserving. Other information is directed at
ARARs, risk assessments, and summaries of typical site characterizations.
This reference provides access to technical expertise through lists of Regional
technical experts and technical references.
CERCLA Administrative Records: Compendium of Frequently Used
Guidance Documents in Selecting Response Actions
Contact OWPE, CERCLA Guidance and Evaluation Branch, FTS 475-
6770, or Regional Administrative Records Coordinator
This reference serves as a central library of guidance documents in each
Region. It saves resources by avoiding the need to copy such documents for
each administrative record.
Accessing Superfund Guidance Documents
U.S. EPA staff can obtain reports, fact sheets, or directives
(OERR/OWPE) from the Superfund Document Center by calling FTS 382-
5628. Rule making and Federal Register listings can be obtained from the
Superfund Docket by calling FTS 382-3046. Information on innovative
technologies can be obtained from the Treatment Innovation Office (TIO)
by calling (703) 308-8800. Many documents can be ordered from the
Center for Environmental Research Information (CERI) by calling FTS
684-7562. State personnel may order documents from NTIS by calling
(703) 487-4650.
A-13
-------
EP A/540/G-91/01 Ob
Directive No. 9635.1 (d)
GUIDANCE ON OVERSIGHT OF
POTENTIALLY RESPONSIBLE PARTY
REMEDIAL INVESTIGATIONS AND
FEASIBILITY STUDIES
Final
U.S. Environmental Protection Agency
Office of Waste Programs Enforcement
Washington, D.C. 20460
VOLUME 2
Appendices
-------
ACKNOWLEDGEMENTS
This document was developed by the Guidance and Evaluation Branch of the CERCLA
Enforcement Division in EPA's Office of Waste Programs Enforcement. Matthew Charsky served
as EPA's Project Coordinator. The project was directed by Sally Mansbach, Acting Director
CERCLA Enforcement Division, with the assistance of Arthur Weissman, Guidance and
Evaluation Branch Chief. This handbook was produced by PRC Environmental Management,
Inc., under EPA Contract No. 68-01-7331. Paul Dean served as Project Manager for PRC
Environmental Management, Inc.
The following Regional, State, and Headquarters individuals provided significant input in the
development and review of this document
Sheila Eckman
Frederick Luckey
Laura Janson
Donald Guinyard
David Weeks
James Hanley
Michael Strieby
Alexis Strauss
Gary Eddy
Stephen Ells
Rick Colbert
Hans Waetjen
Patricia Gowland
Frank Biros
Debby Thomas
Susan Cange
Robin Anderson
Charles Openchowski
Larry Starfield
George Wyeth
Caroline Wehling
Patricia L. Sims
EPA, Region I
EPA, Region II
EPA, Region III
EPA, Region IV
EPA, Region VI
EPA, Region VIII
EPA, Region VIII
EPA, Region IX
State of Minnesota
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
EPA,
OWPE
OWPE
OWPE
OWPE
OWPE
OWPE
OERR
OERR
OGC
OGC
OGC
OGC
OE
NOTICE
This guidance document was developed by the U.S. Environmental Protection Agency (EPA). It
has been subjected to the Agency's review process and approved for publication as an EPA
document.
The guidance and procedures set out in this document are intended solely for the guidance of
EPA Superfund remediation personnel. They are not intended, nor can they be relied upon, to
create any rights, substantive or procedural, enforceable by any party in litigation with the
United States. The Agency reserves the right to act at variance with these policies and
procedures and to change them at any time without public notice.
11
-------
TABLE OF CONTENTS
Section page
B OVERSIGHT OF SAMPLING AND ANALYSIS ACTIVITIES B-l
B.I INITIAL OVERSIGHT ACTIVITIES B-l
B.I.I Preparation B-l
B.I.2 Preliminary On-site Activities B-4
B.2 MEDIA SPECIFIC SAMPLING ACTIVITIES B-6
B.2.1 Surface Water B-6
B.2.2 Ground Water B-17
B.2.3 Soil Water B-23
B.2.4 Surface Soil B-31
B.2.5 Subsurface Soil B-35
B.2.6 Soil Vapor B-37
B.2.7 Sludge and Slurry B-41
B.2.8 Containerized .Waste (Drums, Tanks, Hoppers, Bags, Waste Piles) . . . B-48
B.2.9 Ambient Air B-52
B.3 COMMON SAMPLING ACTIVITIES B-56
B.3.1 Containers B-57
B.3.2 Labels/Tags B-59
B.3.3 Preservation/Handling B-60
B.3.4 Chain-of-Custody Information B-64
B.4 POST-SAMPLING ACTIVITIES B-66
B.4.1 Packaging B-66
B.4.2 Shipping B-69
B.4.3 Decontamination B-72
B.5 QUALITY REVIEW ACTIVITIES B-74
B.5.1 Quality Review Samples B-74
B.6 DOCUMENTATION OF SAMPLING AND ANALYSIS ACTIVITIES B-78
B.6.1 Oversight Team Field Activity Report/Logbook B-78
B.6.2 Oversight Team Photographic/Video Log B-80
C OVERSIGHT OF WELL DRILLING AND INSTALLATION ACTIVITIES C-l
C.I INITIAL OVERSIGHT ACTIVITIES C-l
C.2 BOREHOLE ADVANCEMENT C-3
C.2.1 Drilling Activities C-3
C.2.2 Soil Sample Collection C-13
C.2.3 Decontamination C-16
in
-------
TABLE OF CONTENTS (continued)
Section Page
C.3 WELL DESIGN AND INSTALLATION C-19
C.3.1 Well Design C-19
C.3.2 Well Installation C-23
C.3.3 Well Completion C-24
C.4 POST INSTALLATION C-25
C.4.1 Well Development C-25
C.4.2 Ground-Water Sampling C-27
C.5 DOCUMENTATION OF WELL DRILLING AND INSTALLATION
ACTIVITIES C-28
C.5.1 Oversight Team Field Activity Report/Logbook C-28
C.5.2 Oversight Team Photographic/Video Log C-29
IV
-------
LIST OF TABLES
Paae-
B-l. SAMPLE BOTTLES RECOMMENDED BY SAMPLE TYPE B-58
B-2. SAMPLE PRESERVATION PROCEDURES B-63
C-l. DRILLING METHODS SUMMARY C-6
C-2. SOIL DENSITY/CONSISTENCY C-17
C-3. WELL DEVELOPMENT TECHNIQUES C-26
LIST OF FIGURES
Figure Page.
B-l. COMMON SURFACE WATER SAMPLERS B-10
B-2. COMMON SURFACE WATER SAMPLERS . B-11
B-3. COMMON SEDIMENT SAMPLERS B-13
B-4. GROUND-WATER SAMPLERS B-20
B-5. DIVISIONS OF SUBSURFACE WATER B-25
B-6. LYSIMETERS B-27
B-7. SUCTION SAMPLERS B-29
B-8. COMMON SOIL SAMPLES B-33
B-9. SPLIT SPOON SAMPLER , B-36
B-10. SLUDGE AND SLURRY SAMPLERS B-44
B-l 1. TYPICAL SAMPLE IDENTIFICATION TAG B-61
B-12. CHAIN-OF-CUSTODY RECORD B-65
B-13. CUSTODY SEALS AND BILL OF LADING B-71
C-l. AUGERS . C-8
C-2. MUD AND WATER ROTARY DRILLING C-9
C-3. CABLE TOOL STRING ASSEMBLY COMPONENTS C-l 1
C-4. SOIL BORING LOG C-14
C-5. SOIL CLASSIFICATION CHART C-15
C-6. TYPICAL GROUND-WATER MONITORING WELL CROSS-SECTION C-20
-------
LIST OF ACRONYMS
AA
AD
AERIS
AOC
ARARs
ARCS
ATSDR
ATTIC
BBS
BTAG
CA
CD
CDC
CEAM
CEPP
CERCLA
CERCLIS
CLP
COLIS
CORA
CRP
DOC
DOD
DOE
DOI
DOJ
DOL
DOT
DQO
EA
ECAO
EECA
EEM
EIS
E-MAIL
EMSL
EPA or "the Agency"
ERCS
ERIS
ERL
ERT
ESD
EST
FEMA
FIT
FFA
FMO
FSP
HSCD
HEAST
Assistant Administrator
Air Division
Aid for Evaluating the Redevelopment of Industrial Sites
Administrative Order on Consent
Applicable or relevant and appropriate requirements
Alternative Remedial Contract Strategy
Agency for Toxic Substances and Disease Registry
Alternate Treatment Technology Information Center
Bulletin Board System
Biological Technical Assistance Group
Cooperative Agreement
Consent Decree
Center for Disease Control
Center for Exposure Assessment Modeling
Chemical Emergency Preparedness Program
Comprehensive Environmental Response, Compensation and
Liability Act
Comprehensive Environmental Response, Compensation and
Liability Information System
Contract laboratory program
Computerized On-Line Information Systems
Cost of Remedial Action
Community relations plan
Department of Commerce
Department of Defense
Department of Energy
Department of the Interior
Department of Justice
Department of Labor
Department of Transportation
Data quality objectives
Ecological/environmental assessment
Environmental Criteria and Assessment Office
Engineering Evaluation and Cost Analysis
Environmental Evaluation Manual
Environmental impact statement
Electronic mail system
Environmental Monitoring System Laboratory
U.S. Environmental Protection Agency
Emergency Response Contracting Strategy
Expert Resources Inventory System
Environmental Research Laboratory
Environmental Response Team
Environmental Services Division
Eastern Standard Time
Federal Emergency Management Agency
Field Investigation Team
Federal facility agreement
Financial management office
Field sampling plan
Hazardous Site Control Division
Health Effects Assessment Summary Tables
VI
-------
LIST OF ACRONYMS
(continued)
HHEM
HHS
HRS
HSP
HWCD
IAG
IFMS
IMC
IRIS
LDR
MCL
MCLG
NCC
NCP
NEIC
NOAA
NPDES
NPL
NPTN
NRC
OE
O&M
OECM
OERR
OFFE
OGC
OHEA
ORC
ORD
OSHA
OSWER
OWPE
PA
PC
PRGs
PRP
PWS
QA/QC
QAPjP
RAGS
RAS
RCRA
RD/RA
REM
RFD
RI/FS
RME
ROD
RPM
RREL
RSKERL
SAP
SAS
Human Health Evaluation Manual
Health and Human Services
Hazard Ranking System
Health and safety plan
Hazardous Waste Collection Database
Interagency agreement
Information Management Systems
Information Management Coordinator
Integrated Risk Information System
Land Disposal Restriction
Maximum contaminant level
Maximum contaminant level goal
National Computer Center
National Contingency Plan
National Enforcement Investigations Center
National Oceanic & Atmospheric Administration
National pollutant discharge elimination system
National Priorities List
National Pesticides Telecommunications Network
Nuclear Regulatory Commission
Office of Enforcement
Operation and maintenance
Office of Enforcement and Compliance Monitoring
Office of Emergency and Remedial Response
Office of Federal Facilities Enforcement
Office of General Counsel
Office of Health and Environmental Assessment
Office of Regional Counsel
Office of Research and Development
Occupational Safety and Health Administration
Office of Solid Waste and Emergency Response
Office of Waste Programs Enforcement
Preliminary assessment
Personal computer
Preliminary remediation goals
Potentially responsible party
Public Water Supply
Quality assurance/quality control
Quality Assurance Project Plan
Risk Assessment Guidance for Superfund
Routine analytical sampling
Resource Conservation and Recovery Act
Remedial design/remedial action
Remedial Engineering Management
Reference dosage
Remedial investigation/feasibility study
Reasonable maximum exposure
Record of decision
Remedial Project Manager
Risk Reduction Engineering Laboratory
Robert S. Kerr Environmental Research Laboratory
Sampling and analysis plan
Special analytical sampling
vn
-------
LIST OF ACRONYMS
(continued)
SCAP
SCEES
SEAM
SFWS
SGS
SHPO
SI
SIF
SITE
SMOA
SNL
SOP
sow
SPO
SRI
START
TAP
TAT
TSCA
TES
TIX
TRIS
TS
TST
UAO
UIC
USCOE
USDA
USFWS
USGS
WD
WMD
WP
Superfund Comprehensive Action Plan
Site Cost Estimate and Evaluation Study
Superfund Exposure Assessment Manual
State Fish and Wildlife Service
State Geological Survey-
State Historic Preservation Office
Site inspection
Site Information Form (CERCLIS)
Superfund Innovative Technology Evaluation Program
Superfund Memorandum of Agreement
Special notice letter
Standard operating procedures
Statement of Work
State Project Officer
Superfund Remediation Information
Superfund Technical Assistance Response Team
Treatability Assistance Program
Technical Assistance Team
Toxic Substances Control Act
Technical Enforcement Support
Technical Information Exchange
Toxic Release Inventory System
Treatability Study
Technical Support Team
Unilateral Administrative Order
Underground Injection Control
U.S. Army Corps of Engineers
United States Department of Agriculture
United States Fish and Wildlife Service
United States Geological Service
Water Division
Waste Management Division
Work Plan
via
-------
VOLUME 2
INTRODUCTION
Purpose
Intended
Audience
Volume 2 of this document describes the oversight of sampling and analysis
activities (Appendix Bl) and of well drilling and installation activity
(Appendix Cl) conducted during a Remedial Investigation (RI) by potentially
responsible parties (PRPs) at Enforcement-lead sites addressed under the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended (CERCLA). Checklists to assist in the documentation of sampling
and analysis activities are contained in Appendix B2 while documentation of
well drilling and installation activities are contained in Appendix C2. The
information presented in Volume 2 is consistent with the references listed at
the end of Appendices B and C.
Volume 1 parallels activities described in the "Guidance for Conducting
Remedial Investigations and Feasibility Studies Under CERCLA" (OSWER
Directive No. 9355.3-01, October, 1988, referred to here as the "RI/FS
Guidance") and the "Model Statement of Work for a Remedial Investigation
and Feasibility Study Conducted by Potentially Responsible Parties" (OSWER
Directive No. 9835.8, June 2, 1989, referred to here as the "Model SOW for
PRP-lead RI/FSs"). It provides project managers with the procedures required
to organize and perform appropriate oversight duties and responsibilities. This
document is guidance only; it is not a binding set of requirements and does not
create rights for any party.
For a more in-depth discussion of the entire Superfund Enforcement Program
including removal and remedial actions, refer to the "Enforcement Project
Management Handbook" (OSWER Directive No. 9837.2-A, January 1991).
The handbook addresses the remedial planning and implementation process
from the point of the baseline PRP search (generally conducted after the site is
placed on the National Priorities List (NPL)), to the point of completion of
remedial activity and the site's deletion from the NPL.
The intended audience for this document is remedial project managers
(RPMs), although it can be adapted for use by other parties such as States,
PRPs, contractors and other persons involved in the RI/FS process.
IX
-------
Summary of
Appendices
Appendix B Appendix B, "Oversight of Sampling and Analysis Activities" describes the
activities that the oversight team should conduct during field activities. The
appendix discusses initial oversight activities such as plan reviews and
preliminary on-site activities as well as specific sampling oversight activities
for the following nine media:
• Surface Water
• Ground Water
• Soil Water
• Surface Soil
• Sub-surface Soil
• Soil Vapor
• Sludge and Slurry
• Containerized Waste (Drums, Tanks, Hoppers, Bags, and Waste
Piles)
• Ambient Air
The appendix describes sampling locations, equipment, and techniques as well
as field analytical techniques for each media. The appendix also discusses
sample containers, labels, preservation, chain-of-custody, packaging shipping,
and quality review.
Appendix C Appendix C, "Oversight of Well Drilling and Installation Activities" describes
the activities that the oversight team should conduct during well drilling and
installation activities such as well location, geologic units, type of drilling,
drilling fluids, drilling waste, and decontamination as well as soil sample
collection and logging. The appendix also describes well design, installation,
completion and development.
-------
APPENDIX B
OVERSIGHT OF SAMPLING AND ANALYSIS ACTIVITIES
In accordance with CERCLA Section I04(b), sampling and analysis activities
may be conducted by the potentially responsible parties (PRPs). This appendix
describes the activities that an oversight assistant should conduct and the
. factors to be considered during oversight of PRP sampling and analysis
activities.
This appendix is based on other, more complete sampling and analysis
guidance documents and should not be considered a substitute for them.
Specifically, this appendix includes information on:
• Initial oversight activities;
• Media-specific sampling activities;
• Common sampling activities;
• Post-sampling activities; and
• Quality review activities.
The organization of this chapter corresponds to the Field Activity Report for
oversight of sampling and analysis (see Section B.6.1 in this Appendix).
B.I INITIAL OVERSIGHT ACTIVITIES
There are a number of activities that the oversight assistant should perform
before beginning the sampling and analysis plan (SAP). These activities will
help the oversight assistant to: become familiar with the planned site activities,
including the health and safety requirements; organize and plan the resources
for oversight; coordinate with other parties involved at the site; and make the
necessary preliminary observations at the site.
B.I.I Preparation
Preparation for conducting oversight involves reviewing the site Work Plan,
the SAP, and the health and safety plan; securing the necessary oversight tools;
and coordinating with the appropriate parties before arriving at the site.
Review The SAP consists of the field sampling plan (FSP) and the quality assurance
Sampling and project plan (QAPjP). The content and purpose of these plans are discussed in
Analysis Plan greater detail in Volume 1, Chapter 3 and in EPA's "Guidance for Conducting
Remedial Investigations and Feasibility Studies Under CERCLA" (U.S. EPA,
1988 Chapter 2 and Appendix B).
The RPM and oversight assistant should review the SAP to become familiar
with the media that will be sampled; the location, number and type of samples
that will be collected; the equipment, techniques, and procedures that are
planned for collecting, labeling, preserving, packaging, and shipping samples;
the procedures for recordkeeping and documentation; and the quality
B-l
-------
assurance built into the plan to achieve project data quality objectives. The
oversight assistant should review the names and backgrounds of field personnel
as well. Familiarity with the details of the SAP will allow the oversight
assistant to focus on observing the activities at the site.
To determine the objective of the planned sampling activities, the RPM and
oversight assistant should focus on the following information when reviewing
the SAP:
• The site background and the history of previous activities at or concerning
the site;
• The suspected contaminants, the types of contaminated media, and the
reason for concern (for example, health effects, surrounding population,
and migration of contamination); and
• The quality and types of data needed to characterize the site.
Review Health
and Safety
Requirements
The RPM and oversight assistant should review the PRP's health and safety
plan (HSP) to become familiar with the health and safety procedures and
protocols that will be used by the contractors at the site. The RPM and
oversight assistant should pay particular attention to the following sections:
the known or suspected contaminants at the site; and the suspected location
and concentration of contaminants -- including the hazards associated with
each contaminant (such as toxicity and health effects) and the action levels
that would require upgrading personal protective equipment or abandoning the
site. The oversight assistant should become familiar with the site emergency
procedures, the type of protective equipment to be worn by field personnel
during each activity, the location of the designated work areas and clean areas,
the location of the nearest medical facility, and the procedures and equipment
for monitoring the work area for potentially hazardous materials.
Detailed information on health and safety requirements for hazardous waste
sites is found in EPA Order No. 1440.2, "Health and Safety Requirements of
Employees Engaged in Field Activities" (U.S. EPA, 1981), and OSHA
regulations in 29 CFR 1910.120 (see Federal Register 45654, December 19,
1986). More detailed guidance directed specifically at health and safety
activities is described under the media-specific sampling technique sections of
this manual.
Secure
Oversight
Toois
The tools needed to ensure effective oversight include both the equipment for
collecting oversight samples and providing health and safety protection for
field personnel, and the equipment for documenting site activities.
The equipment and materials needed to collect, contain, label, preserve,
package, and ship the oversight samples is discussed in greater detail in the
following sections:
• Sampling equipment for each medium to be sampled (Section B.2);
• Sample containers (Section B.3.1);
• Labels and tags (Section B.3.2);
B-2
-------
Coordinate
with
Personnel
• Preservative materials (Section B.3.3);
• Packaging and shipping materials (Sections B.4.1 and B.4.2);
• Quality review (Section B.5).
The oversight assistant should refer to the PRP's Work Plan schedule and the
SAP to determine the specific equipment that will be needed for each day's
activities. The required equipment is supplied by the oversight team itself,
except for decontamination equipment (usually, the oversight team uses the
PRP's equipment). The oversight assistant should contact the PRP to confirm
this arrangement before going to the site. If the PRP is not willing to share
decontamination equipment, the equipment should be secured by the oversight
team.
The tools used for documenting the sampling and analysis field activities
include the following (see Section B.6):
• Field Activity Report -- for assisting the oversight assistant in focusing on
the key aspects of the sampling and analysis activities in terms of
oversight, and for recording details of these activities;
• Field logbook -- for the RPM to record facts regarding the site conditions,
field measurements, location and type of samples collected, and dates and
times of sampling activities; and
• Photographic or video camera -- for obtaining a visual record of the site
and sampling activities.
Preparing for field oversight of sampling and analysis activities requires
extensive coordination with all of the parties involved. These parties usually
include:
• The PRP's primary representative to EPA;
• The PRP's field supervisor;
• The Federal, State, and local assistants (as identified by the RPM); and
• The oversight team's laboratory representative.
In many cases, other parties are involved, including the following:
• The PRP's contractor if other than field supervisor;
• The oversight team's contractor;
• The EPA coordinator for the Contract Laboratory Program (CLP); and
• The PRP's facility representative (if other than the PRP's primary
representative).
The RPM or oversight assistant should communicate with the relevant parties
(usually by telephone) on a regular basis regarding the planned activities at the
site. It is especially important for the oversight assistant to obtain a
B-3
-------
commitment from the laboratory that will analyze the split, duplicate, and
blank samples (see Section B.5) several weeks in advance of the scheduled site
activities. Laboratory scheduling is the most common obstacle in coordinating
oversight activities. If the laboratory analysis is arranged through the CLP,
the oversight assistant should contact the CLP coordinator at least 4 to 6 weeks
before the planned sampling date. Arranging private laboratory services
generally requires less notice, but still requires adequate planning.
B.1.2
Review
Personnel
Qualifica-
tions/Respon-
sibilities
Preliminary On-site Activities
The RPM and oversight assistant should acquaint themselves with the names,
responsibilities, and general qualifications of the personnel designated in the
SAP. They should realize, however, that frequently the PRP's staffing plans
change; personnel substitutions are routine and should not alarm the RPM or
oversight assistant. If staffing changes are made, the oversight assistant should
make a note in the field activity report and determine informally if the
substitution seems reasonable (either by observing the individual's activities or
by communicating with him/her). In making this determination, the oversight
assistant should use his/her professional judgment, keeping in mind that the
PRP has no incentive to send an unqualified individual to the field. The
oversight assistant should not delay the PRP's activities to verify personnel
substitutions. If the PRP has substituted an unqualified individual to perform
field work, the oversight assistant should be able to tell by observing that
individual as sampling activities proceed'. In this case, the oversight assistant
should notify the RPM.
Review The oversight assistant should be familiar with the planned location and
Location and number of samples designated in the SAP and should compare the plan with
Number of the actual number and location of samples collected in the field. The oversight
Samples assistant should not delay the PRP's activities to check compliance with the
SAP; rather, the assistant should gather information by observing or
conversing with the PRP briefly at the beginning of each day. If the field
supervisor holds a briefing or safety meeting at the start of each day, this is a
good time for the oversight assistant to gather information.
Frequently, sampling locations will be modified in the field, usually when
access to a planned sampling location is obstructed by an unforeseen physical
barrier. The oversight assistant should make a note in the field activity report
of any changes in the sampling location and should use his/her judgment to
evaluate whether the change is reasonable (see Section B.I.I). To make this
evaluation, the oversight assistant should consider the objectives of the
sampling and analysis activities, as described in the SAP. A change in
sampling location that the oversight assistant feels might adversely affect the
outcome of the sampling effort should first be discussed with the PRPs' field
supervisor. If the disagreement cannot be resolved, inquiry should be made to
the RPM at the first available moment.
Review The oversight assistant should be familiar with the media and types of
Sampling sampling equipment designated in the SAP and should compare the equipment
Equipment at the site and the equipment that was designated in the SAP for each medium
to be sampled. The oversight assistant should focus his/her attention on the
major types of equipment, such as split spoon samplers for collecting
undisturbed soil samples, bailers for collecting groundwater samples, or pumps
B-4
-------
for purging monitoring wells before sampling. Details such as the size of
bailers, the type of bailer wire, or the type of pump tubing during the
preliminary on-site activities are generally of minor concern. The oversight
assistant should refer to Section B.2 of this manual if there are any questions
concerning the application and use of sampling equipment for each medium.
If the major equipment the PRP has at the site is different than designated in
the SAP, the oversight assistant should refer to the detailed information for the
media-specific sampling activities (Section B.2) to evaluate the validity of the
equipment substitution. The oversight assistant should pay special attention to
the sampling activities when the equipment is used. The oversight assistant
should not delay the PRP's activities to determine if the equipment is
acceptable. A discussion should be held with the field supervisor if the
oversight assistant feels that the equipment is not acceptable for some reason.
If the disagreement cannot be resolved, an inquiry should be made to the RPM
at the first available moment.
Check Layout of the decontamination and clean areas at the site should be one of the
Decontamina- first activities that the PRP's contractors should perform before beginning
tion Area/ sampling and analysis. Locations for these areas should be designated in the
Clean Area SAP. The oversight assistant should be familiar with the general location and
configuration planned for these areas, and should check to see that the areas
are placed according to the SAP.
Tour of Site Before sample collection begins, the oversight assistant and his/her team
should conduct a walking tour of the site. The walking tour serves two
functions: 1) to familiarize oversight personnel with the site and the
surrounding area (the oversight team should be sufficiently familiar with the
site to find their way in the event of an emergency), and 2) to identify general
background site conditions that might affect sampling activities or sample
results.
The effect of background site conditions on the sampling activities and sample
results varies with each sample medium and type of sample. Detailed
information on the effects of background site conditions on sampling activities
and sample results is provided for each sample medium in Sections B.2.1
through B.2.9. The oversight assistant should note any background site
conditions that he/she observes during the walking tour and should pay special
attention to these conditions affecting a particular area of sampling.
Calibration of
Equipment
Field analytical equipment must be calibrated regularly in order to provide
reliable measurements. The method and frequency of calibration vary with
different instruments, but the sampling team should, at a minimum, calibrate
equipment daily either upon arriving at the site or prior to its use. A
calibration check after use or at day's end will determine any drift in
instrument measurement. The oversight assistant should know what type of
field analytical equipment will be used at the site and how often the
equipment should be calibrated, as designated in the SAP.
B-5
-------
B.2
MEDIA SPECIFIC SAMPLING ACTIVITIES
One of the primary functions of oversight is to verify that the PRPs' sampling
team is complying with the requirements of the SAP, and that the samples are
representative of the contaminated media. Collecting representative samples
depends on proper sampling locations, equipment, and techniques as well as
proper handling, preservation, labeling, and shipping.
This section discusses the sampling procedures that apply to specific sample
media. The nine sample media discussed are: (1) surface water, (2) ground
water, (3) .soil water, (4) surface soil, (5) subsurface soil, (6) soil vapor, (7)
sludge and slurry, (8) containerized wastes, and (9) ambient air. Each of these
media are discussed in a separate subsection.
B.2.1
Surface Water
Surface water is generally characterized by one of four types of environments:
(1) rivers, streams, and creeks; (2) lakes and ponds; (3) impoundments and
lagoons; and (4) estuaries. Sediments are often sampled in conjunction with
surface water, and are considered an integral part of the surface water
environment since each type of surface water is in contact with sediments.
Because surface waters can exhibit a wide range of general characteristics,
such as size or flow, the collection technique must be adapted to site-specific
conditions.
Sampling
Locations
The oversight assistant should verify that the actual surface water sampling
locations are consistent with those specified in the SAP. Surface water
sampling locations will vary with the size of the water body and the amount of
mixing (turbulence). For example, the number and location of samples needed
to characterize river or stream contamination will differ greatly from the
number and location of samples needed to characterize a lake. Best
professional judgment should be utilized to evaluate whether changes in
sampling locations are reasonable and consistent with the objectives of the
sampling and analysis activities (see Section B.I.I). The oversight assistant
should record sampling locations on a site map or drawing and compare actual
sampling points and those specified in the SAP.
Rivers, To ensure representativeness, samples should be collected immediately
Streams, and downstream of a turbulent area, or downstream of any marked physical change
Creeks in the stream channel (U.S. EPA, 1986c). In the absence of turbulent areas,
the oversight assistant should verify that the sample location is clear of
immediate point sources of pollution such as tributaries or industrial and
municipal effluents. Samples should also be located roughly proportional to
flow — that is, closer together toward mid-channel, where most of the flow
travels, than toward the banks, where the proportion of total flow is smaller.
Unless a stream is extremely turbulent, it is nearly impossible to measure the
effect of an immediately upstream waste discharge or tributary. This is
because the inflow of a liquid from an upstream waste frequently remains near
the bank with little initial lateral mixing. Therefore, the oversight assistant
should note if at least three locations between any two points of major change
in a stream (such as waste discharge or tributary) are sampled to adequately
represent the stream.
B-6
-------
If the effect of a waste discharge or tributary on a water body is to be
quantified, the oversight assistant should check that the samples are collected
both upstream and downstream from the discharge or tributary. The sample
location on a tributary should be as near its mouth as possible without
collecting water from the main stream that may flow into the mouth of the
tributary on either the surface or bottom (because of density differences due
to temperature, dissolved salts, or turbidity).
When the sampling team collects several samples along a stream, the samples
should be located at time-of-water-travel intervals; that is, the distance that
the water travels in a given time period. A general rule of thumb is to collect
a total of six samples at successive intervals that are one-half water-travel day
apart (U.S. EPA, 1986c).
Typically, sediment deposits in streams collect most heavily in river bends,
downstream of islands, and downstream of obstructions in the water.
Generally, the oversight assistant should check if sediment samples are
collected along a cross-section of a river or stream bed. A common practice is
to sample at quarter points along the cross-section of the site. The sampling
team should not take sediment samples immediately upstream or downstream
from the confluence of two streams or rivers because of possible backflow and
inadequate mixing.
Lakes and Because of reduced (or no) flow, lakes and ponds have a much greater
Ponds tendency to stratify than rivers and streams. The relative lack of mixing
requires the sampling team to obtain more samples to represent present water
conditions. For example, if stratification is caused by water temperature
differences (such as cooler, heavier river water entering warmer lake water)
the sampling team should sample each layer of the stratified water column
separately. If a lake is in spring or fall overturn, vertical composites may not
be necessary. Stratification can be determined with temperature, specific
conductance, pH, and dissolved oxygen vertical profiles. The oversight
assistant should check if the sampling team has made a vertical profile of the
water column or used visual observation to detect different layers.
The number of water sampling locations on a lake or pond will vary with the
size and shape of the basin as well as other factors such as discharges,
tributaries, and land use characteristics that could affect water quality. In
ponds, a single vertical composite at the deepest point may be representative.
In naturally formed ponds, the deepest point is usually near the center. In
lakes, the sampling team should take several vertical composite along a transect
or grid to ensure the samples are representative (U.S. EPA, 1986c). However,
vertical composites samples should not be collected for volatiles; separate grab
samples at each composite point should be collected.
The oversight assistant should check if sediment samples in lakes, ponds, or
reservoirs are collected approximately at the center of water mass where
contaminated fines are most likely to collect. Generally, coarser-grained
sediments are deposited near the headwaters of a reservoir, while bed
sediments near the center of the water mass will be composed of fine-grained
materials.
B-7
-------
Impoundments
and
Lagoons
Impoundments and lagoons generally will contain more concentrated wastes
than lakes and ponds, and thus be a source (as well as a sink) of
contamination. In addition, impoundments and lagoons are more likely to
contain sludges as opposed to sediments (for information on sludge sampling,
see Section B.2.7).
As with lakes and ponds, the number of water sampling locations for
impoundments and lagoons will vary with the size and shape of the
impoundment or lagoon as well as other factors such as the location and flow
characteristics of inlets and discharges. In small impoundments, a single
vertical composite at the deepest point may be representative; the deepest
point is usually near the dam. In larger impoundments, the sampling team
should take several vertical composites along a transect or grid to ensure
samples are representative (U.S. EPA, 1986c).
Estuaries
Due to the dynamics of estuaries, preplanned sampling locations typically must
be changed after initial sampling. (Initial sampling may only test assumptions
regarding sample locations). In addition, because estuary dynamics cannot
normally be determined by a single-season study, estuary sampling is usually
two-phased, conducted during wet and dry seasons.
The oversight assistant should note if samples in estuaries are collected at mid-
depth where depths are less than 10 feet, unless the salinity profile indicates
the presence of a halocline (salinity stratification). In that case, the sampling
team should collect samples from each stratum. For depths greater than 10
feet, the sampling team may collect water samples at 1-foot depth, mid-
depth, or 1 foot from the bottom. Sampling in estuaries is normally based on
tidal phases, with sampling on successive slack (low flow) tides.
Biota
Biota sampling may occur when questions exist about the presence or absence
of measurable impacts both onsite and offsite or to assist in preparing an
ecological assessment. In surface waters, biota are often sampled incidentally
to water or sediment sampling. In other media, or for bioassays, specific
equipment and detailed project plans are employed. Biota sampling can help
better determine the effect of contaminants on natural systems, either directly
or through food-chain accumulation.
General
Surface Water
Conditions
The oversight assistant should note the general conditions of the water body
(and sediments). Water turbidity and turbulence are of particular interest for
obtaining representative surface water samples. (Turbulence affects mixing,
while turbidity is an indication of sediment/water mixing). In addition, the
oversight assistant should observe the water to detect the presence of any
stratification (layers) or the presence of petroleum products or surface sheen.
The oversight assistant should also document other conditions which could
affect sampling activities or sample quality. These conditions include the
presence and relative locations of any discharges or tributaries, any
obstructions or islands, and any change in channel width or direction as well as
weather conditions. Refer to the general site conditions paragraphs of Section
B.2 for more detail and additional considerations.
B-8
-------
Sampling Generally, any sampling equipment that preserves the integrity of the sample,
Equipment and produces a sample that is representative of the sample location, is
acceptable. The oversight assistant, however, should note if the sampling
team's equipment is consistent with the equipment listed in the SAP. To
reduce the possibility of cross-contamination, the sampling team should collect
samples with glass, plastic, or Teflon-coated samplers for trace metals analysis.
Likewise, stainless steel, glass, or Teflon samplers are used to collect samples
for trace organic compounds analysis.
Water For sampling at a specific depth, the sampling team may use a standard
Sampling Kemmerer or Van Dorn sampler (U.S. EPA, 1987a). The Kemmerer sampler
Equipment (Figure B-l) is a brass cylinder with rubber stoppers that leave the ends open
while the cylinder is being lowered in a vertical position to allow free passage
of water through the cylinder. The Van Dorn sampler (Figure B-l) is similar
to the Kemmerer, but is plastic and is lowered in a horizontal position. The
oversight assistant should check whether the sampling team uses the Kemmerer
metallic sampler for trace organic compounds or the plastic Van Dorn sampler
for trace metals (some Van Dorn samplers are Teflon-coated and therefore can
be used for both organic compounds and metals).
When using a Kemmerer or Van Dorn sampler, the sampling team sends a
5-ounce messenger (weight) down the rope, or activates an electrical solenoid
when the sampler reaches the designated depth, causing the stoppers to close
the cylinder. The sample is raised and removed through a valve to fill sample
bottles.
The sampling team may also use modifications of the basic Kemmerer and Van
Dorn samplers. Two of these are the Nansen Bottle and the Niskin Bottle.
The Nansen Bottle, available in a 1.5-liter size, consists of a brass tube with
rotary valves at each end. The Niskin Bottle sampler is available in sizes
ranging from 1.7 to 30 liters and is designed primarily for deep-water
sampling.
As with the Kemmerer, the Nansen bottle is lowered with the valves open. A
messenger weight releases a catch mechanism, allowing the bottle to invert,
and closing the valves. The Niskin Bottle, unlike the Kemmerer, can be
opened and closed at any depth. This allows the bottle to penetrate surface
contamination (such as oil slicks) with minimal risk of contaminating the
internal sample area.
Another type of sampler (U.S. EPA, 1987a) is the weighted-bottle sampler
(Figure B-2). When using the weighted-bottle sampler, the sampling team
lowers the samples to the desired depth and pulls the stopper, allowing the
bottle to fill. Unlike the Kemmerer, the bottle is raised uncapped, allowing
the sample to mix with water from other depths.
The sampling team may also use small peristaltic pumps to sample surface
water (Figure B-2). With peristaltic pumps, the sample is drawn through
heavy-wall Teflon tubing and pumped directly into the sample container (U.S.
EPA, 1987a). This method permits sampling from a specific depth or
sweeping the width of narrow streams. These pumps should not be used for
sampling volatile organics or oil and grease; volatile stripping can occur and oil
and grease can adhere to the tubing.
B-9
-------
Figure B-l. Common Surface Water Samplers
Kemmerer Sampler
Van Dorn Sampler
B-10
-------
Figure B-2. Common Surface Water Samplers
Washer
Pin
Nut
Eyelet
Weighted Bottle Sampler
1000-ml(l-quart) weighted-
bottle catcher
Cork
Washer
Peristaltic Pump
B-ll
-------
The sampling team may use a sampling device resembling a dust pan to sample
an immiscible floating phase (for example, petroleum). The device has a large,
shallow surface area that skims the water surface more readily than a cup with
a smaller, deeper surface area. Alternatively, the sampling team can use an
absorbent boom or roll to gather the floating material into a deeper pool for
sampling directly, or absorb the material to be wrung into sample containers.
Sediment
Sampling
Equipment
To collect a sediment sample, the sampling team will generally use one of
three methods: dredging, coring, or scooping.
Dredging
For routine analyses, the Peterson dredge is preferable when the surface water
bed is rocky, very deep, or when the stream velocity is high (U.S. EPA,
1986c). The Eckman dredge has only limited usefulness. It performs well
where bottom material is unusually soft, as when covered with organic sludge
or light mud. It is unsuitable, however, for sandy, rocky, and hard bottoms
and is too light for use in streams with high velocities.
The Ponar dredge is one of the most effective samplers for general use on all
types of substrate. The Ponar dredge (Figure B-3) is a modification of the
Peterson dredge and is similar in size and weight. It has been modified by the
addition of side plates and a screen on the top of the sample compartment.
The screen over the sample compartment permits water to pass through the
sampler as it descends, thus reducing the "shock wave" created by the descent
of the dredge into the sediment.
Coring
If a historical analysis of sediment deposition is desired, the sampling team
may use core samplers to sample vertical columns of sediment. Core samplers
are better than dredges for this type of analysis because they preserve the
sequential layering of the deposit. The sampling team may use different types
of coring devices depending on the depth of water from which the sample is to
be obtained, the nature of the bottom material, and the length of core to be
collected. These coring devices vary from hand push tubes (Figure B-3) to
weight- or gravity-driven devices. To reduce sample contamination, the
sampling team should use glass or Teflon core liners. With core liners, the
samples are easily delivered to the lab for analysis in the tube in which they
were collected. The disadvantage of coring devices is that a relatively small
surface area and sample size is obtained, therefore requiring additional
sampling by the sampling team to obtain the required amount for analysis.
The oversight assistant should check if the coring tube is long enough and has
the proper diameter to ensure a representative sample. The sampling team
should use a coring tube that is approximately 12 inches long if recently
deposited sediments (8 inches or less) are needed. Longer tubes should be used
when the sediments exceed 8 inches in thickness (U.S. EPA, 1986c). Because
coarse or unconsolidated sediments such as sands and gravel tend to fall out of
the tube, the sampling team should use a tube with a small diameter (a tube
about 2 inches in diameter is usually the best size). Since soft or semi-
consolidated sediments adhere more readily to the inside of the tube, the
sampling team may use larger diameter tubes for mud or clay. The wall
thickness of the tube should be about 1/3 inch for either Teflon or glass. The
inside wall may be filed down at the bottom of the tube to more easily pierce
the substrate.
B-12
-------
Figure B-3. Common Sediment Samplers
Ponar Dredge
61 -100cm.
(24 • 40 in.) "
1.27 • 2.S4 cm (1/3 In. • 11n.)
Hand Push Tube
Grain Sampler
B-13
-------
Scooping
If the stream has a significant flow and is too deep to wade, the sampling team
may scoop some sediment with a BMH-60 sampler (U.S. EPA, 1986c). The
BMH-60 is not particularly efficient in mud or other soft substrates because
its weight will cause penetration to deeper sediments, which may not be
desired. The sampling team may use the BMH-60 for sampling if subsamples
that have not been in contact with the metal walls of the sampler are taken.
Sample Type There are two types of surface water samples that may be collected: a grab
sample and a composite sample. Grab samples are taken at a single location.
It may be necessary to collect material from a location in successive "grabs" to
accumulate the required amount of sample; the sample is still, however, a grab
sample. Composite samples are combined from different locations, or from
different times. A continuous sample would also be a composite sample. For
example, grab samples combined from 1 foot below the water surface, at mid-
depth, and 1 foot above the bottom would constitute a vertical composite. A
peristaltic pump collecting water from mid-depth at the center of a stream
channel over a period of time would yield a time composite sample.
Generally, water samples with different temperatures or conductivities, may
be composited (U.S. EPA, 1986c) as these properties (as opposed to
composition) are subject to change once the sample has been collected.
Sediment samples of dissimilar composition or samples collected for volatile
organic analysis should not be composited, but instead stored for separate
analysis.
The size of the sample collected is determined by the requirements for
analysis, and is specified in the SAP. For example, water samples analyzed for
purgeable organic compounds should be stored in 40 mL septum vials with no
head space (air) remaining. Sediment samples for purgeable organic
compounds analysis should completely fill a 4-ounce (120 mL) sample
container; again, no head space should remain in the sample containers. For
trace organic compounds and metals, 4 to 8 ounces (120-240 mL) of sample
are usually collected.
The SAP should specify the order in which samples should be collected.
Generally, samples should be collected in the order of decreasing volatility;
volatile contaminants should be sampled before nonvolatile contaminants (U.S.
EPA, 1986a). A preferred collection order would be:
• Volatile organics;
• Purgeable organics (generally not volatile at ambient conditions);
• Total organics;
• Metals;
• Phenols;
• Cyanide; and
• Metal anions (for example, sulfate, chloride, nitrate).
B-14
-------
Sampling The oversight assistant should be aware of other factors, such as water velocity
Technique and accessibility, that may affect sampler selection and technique. For
example, the sampling team should collect surface water samples from the
shore of the water body (possibly with an extension pole), a small boat, a pier,
or by wading in streams. Wading, however can cause bottom deposits to rise
and bias the sample. For this reason wading is not acceptable for lakes and
streams without a noticeable current. When wading, sampling personnel
should face upstream and collect the sample with the container pointing
upstream. Likewise, when sampling beneath the water surface, care should be
taken not to stir up the bottom sediment and thus bias the sample.
The sampling team can collect water samples from shallow depths by
submerging the sample container directly into the water. Alternatively, they
can use a bucket or dedicated collection vessel (bailer, beaker, or other
sampler) to transfer the water sample to a container. However, when a
transfer vessel is used, the sampling team should avoid aeration and loss of
volatile organic compounds. The team should also not disturb the bottom
sediment and should decontaminate the transfer vessel between sample
locations.
For deeper samples, the sampling team should attach a rope to the dedicated
sampler. The oversight assistant should note if the sampling team uses either a
nylon rope or Teflon-coated wire to lower all samplers into the water; other
rope/cable materials may introduce contaminants. The rope should be
properly discarded or decontaminated between sampling locations.
When sampling from highly contaminated surface water (for example, from a
surface impoundment) the sampling team should take care to minimize splash
hazards which could spread contamination as well as result in unintended
exposure. Similarly, if the sampling team will be collecting extremely
contaminated sediment, preliminary decontamination may be necessary before
leaving the sampling location. Typically, this will involve placing
contaminated boots and sampling equipment into plastic bags for transfer to
the decontamination area. This will prevent spread of contamination. As
noted in Section B.4.3, full decontamination is not done in locations adjacent
to surface water where runoff to the water can occur.
Field
Analytical
Techniques
Field analytical techniques for screening surface water (and ground water) can
be broadly outlined in six categories:
• pH meters;
• Conductivity meters;
• Thermometers;
• Dissolved oxygen meters;
• Inorganic compounds kits/instruments; and
• Organic compounds instruments.
Except for self-purging instruments (for example, gas chromatographs), the
oversight assistant should note whether the sampling team decontaminates the
analytical equipment between samples to avoid cross contamination.
B-15
-------
pH Meters The sampling team can obtain the pH of a water sample from either a pH
meter or calorimetric pH paper (U.S. EPA, 1986c, 1976b). The oversight
assistant should verify that the pH meter is calibrated, at a minimum, on a
daily basis to standard solutions and to temperature (if the pH meter does not
have temperature compensation capability). If calorimetric pH paper is used,
the oversight assistant should note the shelf-life expiration.
The sampling team obtains the pH of a sample by immersing the (clean) pH
meter electrode in the water sample and reading the instrument display. The
oversight assistant should note the presence of oily material or particulate
matter, since this material or matter can impair electrode response. If the
sampling team uses pH paper, a drop of water should be put on the paper
since immersing pH paper will contaminate the sample.
Conductivity Conductivity is a function of the number of ions in solution, and is therefore a
Meters relative indication of water contamination. The sampling team should
calibrate a conductivity meter against a test solution of known conductivity
before use. Because surface waters contain many natural salts, the sampling
team should compare field measurements to an upgradient or uncontaminated
baseline. Because conductivity is also a function of temperature, the sampling
team should measure samples at the same temperature, or should use a
temperature-compensating instrument.
Thermometers
The sampling team can measure water temperature with any high-quality
mercury-filled thermometer or thermistor with an analog or digital readout
device (U.S. EPA, 1986c). Although it is not necessary to calibrate on a daily
basis, thermometers should be periodically calibrated against a National
Institute of Science and Technology (MIST) traceable standard thermometer.
The sampling team should insert the (clean) thermometer in situ when
possible, or into a collected sample. The oversight assistant should check that
the sampling team allows the temperature to equilibrate before taking the
reading.
Dissolved
Oxygen Meters
The sampling team can measure dissolved oxygen content in water samples
with a dissolved oxygen meter or with the Winkler method (U.S. EPA, 1986c).
The meter measures dissolved oxygen content directly upon immersion of the
probe, whereas the Winkler method is a titration involving five reagents. The
sampling team should calibrate the dissolved oxygen meter against the Winkler
method before use on samples free of interferences, or otherwise according to
manufacturer's instructions. Since temperature affects dissolved oxygen
readings, the oversight assistant should check if the sampling team's meter is
equipped with a temperature compensator. Dissolved oxygen probe
performance is also affected by dissolved inorganic salts and by reactive gases
such as chlorine and hydrogen sulfide.
Inorganic Various field test kits and instrumentation exist for field analysis of inorganic
Compound compounds (U.S. EPA, 1987a). The kits are calorimetric tests that require the
Kits/Instru- sampling team to add reagents to a portion of the sample. To obtain the
ments results, the sampling team compares the sample with a color chart or uses a
spectrophotometer, colorimeter, or other instrument that will measure color
B-16
-------
intensity. If the sampling team uses a field atomic absorption spectrometer,
the oversight assistant should check if the operator has been trained to avoid
interference and contamination problems.
Organic Although there are many organic compound instruments that the sampling and
Compound analysis team may operate in a van, trailer, or building, the oversight assistant
Instruments will generally encounter portable instruments (U.S. EPA, I987a, 1987b). The
most easily portable units are battery-powered gas chromatographs (GCs).
There are also mass spectrometers (MS) and combination GC/MS units which
require 120 volts of AC power, either from regular utility lines or from
generators.
Generally, the battery-powered GCs are suitable only for detecting volatile
compounds. The AC-powered units can detect semi-volatiles, and can be
temperature programmed or can have capillary column capability, both of
which considerably enhance GC selectivity. The oversight assistant should be
aware that effective use of these analytical instruments requires a high level of
operator experience and expertise. The oversight assistant should note the type
of equipment that the sampling team uses and the experience of the
operator(s).
B.2.2
Ground Water
Ground water is usually defined as the water present in the saturated soil
zone -- that is, the subsurface soil zone in which the pore space between the
soil grains (or rock fractures) is filled with water. Although water is present
in the unsaturated zone in the form of films and vapors, it is often referred to
as soil water in this case and is distinct from saturated ground water (U.S.
EPA, 1987a). This is an important distinction because the techniques for well
installation and sampling differ significantly between ground water and soil
water.
Well Location/
Condition
The sampling team will typically sample ground water through an in-place
well that is either temporarily (if approved) or permanently installed.
However, the team may also sample ground water anywhere it is present, such
as in a pit or hole dug to the water table (U.S. EPA, 1986c).
The oversight assistant should check if the actual sampling locations are
consistent with those specified in the SAP. However, site-specific conditions
may require modifications in well location. The oversight assistant should rely
on best professional judgment to evaluate whether changes in well locations
are reasonable and consistent with the objectives of the SAP (see Section
B.I.I). The oversight assistant should note the location of all wells in the field
log and on a map. A comparison of the actual well locations and the intended
locations should be noted.
The oversight assistant should also check that the well is covered by a locked
protective casing. The protective casing should be set in grout or concrete to
prevent its movement. The well casing should be capped to prevent foreign
matter from entering the well.
B-17
-------
Well Design Monitoring well casings are available in a wide range of sizes and are made of
various materials. Both the size of casing and the type of casing material are
critical factors for sampling and analysis.
The oversight assistant should note the diameter of the casing (well diameter)
because of its effect on measurement of immiscible fluids in the well. The
measured thickness of immiscible hydrocarbons in a well is greater than the
actual thickness of the immiscible lens floating on the water table. The lens in
a small diameter well (for example, 2-inch diameter) will be approximately 4
times thicker than an the water table (U.S. EPA, 1987b).
The oversight assistant should also note the type of casing material because of
its effect on the quality of the water samples. The casing material may both
release and absorb water contaminants. Some organic compounds and acids
react aggressively with casing materials and actually destroy well integrity*
When selecting an appropriate casing material, the sampling team should
consider the type of contaminant being investigated. Polyvinylchloride (PVC)
pipe is acceptable for samples for trace metals analysis, but may not be
acceptable for trace organic analysis because it has been shown to release and
absorb trace amounts of various organic constituents. Stainless steel is
acceptable for trace organics but may not be acceptable for trace metals.
Fiberglass-reinforced plastic has recently been used for trace organics because
it does not absorb or release contaminants as much as PVC does.
General
Ground Water
Conditions
The general conditions of the ground water are important for sample quality.
The oversight assistant should note if the sampling team checks the depth to
standing water, the depth to the bottom of the well, the presence of an
immiscible layer, and the turbidity of the water (although turbidity cannot be
detected until the water is sampled). Measuring the water depth in a well is
important to characterize the aquifer and to determine the volume of water
that should be purged (removed) from the well before sampling.
Measurements to determine the depths should be made with respect to a
surveyed reference point(s) instead of the top of the casing. Measuring the
depths in this manner, however, is more important for characterizing the
aquifer than purging the well. The sampling team may measure depth to
standing water and depth to the bottom of the well with any of several
measuring devices. The oversight assistant should note if the sampling team
uses chalked steel tape, electric sounders, poppers, or some other method.
Chalked steel tape with a weight attached to the lower end is one of the most
accurate procedures for measuring water levels. The line where the chalk
color changes on the tape indicates the length of tape that was immersed in
water. Electric sounders may also be used to measure the depth to water in
wells. Most sounders are powered with flashlight batteries, and immersing the
sounder in water closes the circuit and registers on a meter or sounds a buzzer.
A popper -- a metal cylinder with a concave undersurface attached to a steel
tape -- is another method for measuring the depth to the water. When the
popper is dropped to hit the water surface, it makes a distinctive "pop."
Poppers are not effective if the water surface is in contact with the well
screen, or if there is significant background noise (such as pump operation).
The sampling team may determine the presence of a nonaqueous-phase
hydrocarbon lens floating on the water table or pooled at the bottom of the
aquifer by using hydrocarbon-detection pastes, bailers, or interface probes.
Hydrocarbon-detection pastes change color when contacted by hydrocarbons,
but do not change in water. The paste is applied to a rod or tape and lowered
B-18
-------
into the well until it comes into contact with the water. The rod or tape is
then withdrawn from the well. A color change indicates that a body of
nonaqueous-phase hydrocarbon is present. Although this method can detect a
layer of hydrocarbon less than 1-mm thick, it does not permit direct
measurement of the thickness of the layer. The sampling team can use a bailer
to measure the thickness of the layer.
Sampling Generally, any sampling equipment that preserves the integrity of the sample
Equipment and produces a sample that is representative of the sample location is
acceptable. The most common methods involve either bailing or pumping.
The oversight assistant should note if the sampling team's equipment is
consistent with the equipment listed in the SAP.
Bailers
Bailers are divided into three groups: (1) top-filling, (2) bottom-filling, and
(3) thief. The sampling team may use a thief bailer to collect a sample from a
particular zone. The thief bailer (for example, a Kemmerer bottle; see Figure
B-l) has check valves or mechanical stops on each end.
Because the top-filling bailer is open only at the top, the oversight assistant
should check that it is completely submerged to permit filling. The oversight
assistant should also note if the sampling team is trying to determine the
presence of a nonaqueous-phase liquid. It may be difficult to identify
nonaqueous-phase liquids with a top-filling bailer because the bubbling action
caused by the water filling the bailer may emulsify the two liquid phases (U.S.
EPA, 19875).
The bottom-filling bailer (Figure B-4) has a one-way check valve at the
bottom and an open top. As the bailer is lowered, it fills from the bottom.
The oversight assistant should make sure the bailer is lowered slowly for
nonaqueous-phase layers, so that they can be easily identified and separated
for analysis.
As a thief bailer is lowered, water and nonaqueous-phase liquids can flow
completely through the bailer. When the desired collection level is reached,
the stops can be closed, or the check valves will be activated when the bailer is
drawn up.
In general, the sampling team should use plastic or Teflon-coated bailers to
collect samples for trace metals analysis, and stainless steel or teflon-coated
bailers to collect samples for trace organic compounds analysis. (Contaminant
leaching from the bailer is generally infinitesimal except under aggressive and
extremely contaminated conditions, such as nonaqueous-phase layers for
plastic and low pH combined with nitrates for stainless steel. Thus, either
material may be acceptable for collecting for both organic compounds and
metals analysis depending on concentraction and constituents of concern.)
Pumps
The sampling team may use a variety of pumps for sampling ground water.
Pumps are classified as (1) suction-lift, (2) submersible, (3) air-lift, (4)
bladder, or (5) gas-driven piston. These pumps are discussed below.
Regardless of the type, the oversight assistant should check that the pumps
used for purging the well are not used for sampling without decontamination
(U.S. EPA, 1987a).
B-19
-------
Figure B-4. Ground-Water Samplers
SuinliU Steel Wlrt Cable
or Monofllament tin*
Top May Be Clottd
or Open
1-1/4-0.0. x 1-1.0. Teflon
Extruded Tubing,
18" to 36" lor*
3/4" Diameter
Gla»MarMe
roltmrttTTefloii
Extruded Rod
Prwwve geuoa
Quick *> Xoe«
coupler
Ground
5/18" Dtometer
Bottom- filling Bttor
Air-lift Pump
B-20
-------
Suction-lift Suction-lift pumps include centrifugal pumps, hand-operated diaphragm
pumps, and peristaltic pumps. The sample is drawn into and up the pump
discharge line by the repeated creation of a partial vacuum in the pump. The
oversight assistant should be aware that suction pumps generally are not
practical at surface depths greater than 25 feet and suction pumps are not
suitable for sampling for purgeable organic compounds since suction can strip
volatile compounds.
Submersible The sampling team may use submersible pumps to depths of several hundred
feet. The.sample is brought into the pump by a series of impellers or blades,
and is forced to the surface as more fluid is brought into the pump. The
oversight assistant should be aware that submersible pumps are difficult to
transport and decontaminate, and may emulsify any nonaqueous-phase liquids
and volatilize dissolved organic compounds. They are therefore generally
better suited for purging than for sampling.
Airlift
The sampling team will rarely use air-lift pumps since significant oxidation,
emulsification, and degassing may occur. Air-lift pumps also are not suitable
for pH-sensitive parameters such as metals. Air-lift pumps (Figure B-4) use
air pressure to force samples into and up the discharge tube. The air pressure
can be generated by hand, but a small air compressor is more commonly used
for this purpose.
Bladder
Bladder pumps may be used in wells as small as 2 inches in diameter and are
acceptable for the sampling of all contaminants (although they are difficult to
properly decontaminate). Bladder pumps consist of a collapsible membrane
inside a rigid housing. Compressed gas (which does not come in contact with
the sample) is used to inflate or deflate the collapsible membrane (bladder)
from the outside. This draws the sample into the bladder and forces it to the
surface.
Gas-driven In small-diameter wells, the sampling team may also use recently developed
piston piston pumps. Compressed gas is used to activate the pistons to bring the
sample into the pump. The sample is pumped without coming in contact with
the gas. Although these devices can pump to depths in excess of 500 meters,
pumping rates are low.
Sample Type As with surface water, there are two types of samples that may be collected: a
grab sample or a composite sample (see Section B.2.1).
Generally, ground water samples are grab samples, although separate samples
could be composited. Alternatively, ground water may be sampled
continuously as in a ground water recovery or treatment system. The size of
the sample collected is determined by the requirements for analysis, and is
specified in the SAP. For example, water samples analyzed for purgeable
organic compounds should be stored in 40 mL septum vials with no head space
(air) remaining. Water samples for metals or cyanide analysis may fill a 16-
ounce or 1-liter bottle. Larger amounts of water (up to 4 liters) may be
collected for low-concentration water samples that are analyzed for extractable
organics.
B-21
-------
The SAP should specify the order in which samples should be collected.
Generally, samples should be collected in the order of decreasing volatility;
volatile contaminants should be sampled before nonvolatile contaminants (U.S.
EPA, 1986a). See Section B.2.1 for a preferred collection order of
contaminants. .
When sampling with bailers, the bailer is lowered into the well on a clean
nylon rope or Teflon-coated cable and permitted to fill with ground water. If
the sampling team is collecting organic samples, the bailer should be lowered
so that it does not enter the water with a splash. Splashing or agitating the
water can .strip volatile compounds and stir up collected sediment.
Before taking samples, the sampling team must purge wells to remove stagnant
water which has been standing in the well casing and may not be
representative of aquifer conditions. The sampling team may purge wells with
either an appropriate pump (depending on well depth) or a bailer. The
equipment used to purge the well should be inert and compatible with the
study objectives. The specific purging procedures should be described in the
SAP.
The standard method of purging is to pump the well until three to five times
the volume of standing water in the well has been removed. The sampling
team may also pump the well until the specific conductance, temperature, and
pH of the ground water stabilizes (U.S. EPA, 1987a). Alternatively, a
combination of the two methods can be used. The oversight assistant should
be aware that pumping a well dry also constitutes an adequate purge and the
well can be sampled following well recovery (U.S. EPA, 1986c), although the
purge rate should be reduced, if possible, to remove the necessary volume of
water.
The sampling team must know the volume of the water in the well before the
team can properly purge the well. (The volume of water in the well may
fluctuate with the season and the weather.) The oversight assistant should note
the volume that is purged from each well; the purged volume should
correspond to the observed well water volume.
The oversight assistant should check that the sampling team lowers the
pump/hose assembly or bailer into the top of the standing water column (not
deep into the column). This is done so that the purging will draw water from
the ground-water formation into the screened area of the well and up through
the casing so that the entire static volume can be removed (U.S. EPA, 1986c),
If the sampling team places the pump or bailer deep into the water column,
the water above the pump or bailer may not be removed, and the"subsequent
samples collected may not be representative of the ground water.
Regardless of which method is used for purging, the sampling team should
place new aluminum foil or plastic sheeting on the ground surface beside the
well to prevent additional contamination. The sampling team should keep any
hoses that come into contact with the ground water on a spool to further
minimize contamination during transport (U.S. EPA, 1986c).
The oversight assistant should note the time between the well purging and
sample collection. The sampling team should collect samples as soon as a
volume of water sufficient for the intended analytical purpose reenters the
well. Exposing the water entering the well for periods longer than 2 to 3
hours may result in unrepresentative samples.
B-22
-------
When sampling from a ground-water well, the sampling team should exercise
caution when first uncapping the well -- particularly if the well is unvented.
This is because contaminant gases may have collected in the well. Moreover,
if the water table has risen since capping an unvented well, the air space above
the well will be pressurized.
Once the well is uncapped, the sampling team should check the ambient air
around the well for the presence of hazardous vapors with an air monitoring
instrument before purging or sampling. The sampling team should approach
the well from the upwind side. Based on this initial hazard assessment, it may
be necessary to don more/better protective equipment, or even evacuate. The
oversight assistant should consult the site health and safety plan(s) for the
appropriate action levels before arriving at the site. In addition, if hazardous
atmospheres are encountered, the sampling team should try to identify the
gases/vapors, and verify that the site health and safety plan has specified
applicable and appropriate contingencies.
Field Field analytical techniques for screening ground water (and surface water) can
Analytical be broadly outlined in six categories:
Techniques
• pH meters;
• Conductivity meters;
• Thermometers;
• Dissolved oxygen meters;
• Inorganic compounds kits/instruments; and
• Organic compounds instruments.
These instruments are discussed in detail in Section B.2.1, Surface Water
Sampling. Except for self-purging instruments (for example, gas
chromatographs), the oversight assistant should check that the sampling team
decontaminates the analytical equipment between samples to avoid cross-
contamination.
B.2.3 Soil Water
Water present in the unsaturated (vadose) zone in the form of films and vapors
is often referred to as soil water (U.S. EPA, 1987a). Most hydrogeology texts
distinguish between water near the surface and water in deeper unsaturated
zones by the fact that water near the surface (so-called soil water) is subject to
evaporation and plant transpiration, as well as to climatic effects. However,
for the purposes of oversight, this guidance will refer to all water in the
unsaturated/vadose zone as soil water because the sampling equipment and
techniques for the entire vadose zone are essentially the same.
B-23
-------
Figure B-5 shows a hypothetical cross section of the subsurface, illustrating
the vadose and saturated zones. The term vadose zone (or zone of aeration) is
preferred to the term unsaturated zone because saturated conditions are
frequently encountered above the saturated zone in response to surface
flooding (Everett, et.al., 1984). The principal transport mechanisms of soil
water in the vadose zone are infiltration, percolation, redistribution, and
evaporation.
Sampling
Locations
As water in the vadose zone does not exist in a saturated state, wells and open
cavities (such as test pits) cannot be used to collect soil-water samples. The
sampling team samples soil water from either a temporarily (if approved) or
permanently installed emplacement hole. An emplacement hole is distinct
from a well and is a hole for installation of a soil-water sampler. The
oversight assistant should be aware that in addition to sampling soil water
directly, there are a number of indirect methods, such as electrical resistance
blocks, for detecting fluid flow in the vadose zone. However, these methods
provide only qualitative evidence of contamination, producing no actual
sample for analysis. These methods therefore will not be examined in this
guidance.
The oversight assistant should note the location of all emplacement holes in the
field log and on a map, comparing actual locations with intended locations.
The oversight assistant should also check to see if the actual sampling locations
are consistent with those specified in the SAP. The oversight assistant should
be aware, however, that site-specific conditions may require modifications in
sampling locations. For example, an obstruction may necessitate moving a
sampling location. The oversight assistant's best professional judgment should
be used in evaluating whether changes in emplacement location are "reasonable
and consistent" with the objectives of the SAP (see Section B.I.I).
General Soil General soil conditions are important for obtaining representative soil-water
Conditions samples. Soil texture (or particle size) affects operation of soil-water samplers.
For example, when divisions of subsurface water soils are very coarse, such as
when gravels are present, good contact between the finer pores and the
sampler may be difficult to produce (for this reason, the space between the
soil-water sampler and the surrounding soil is usually filled with silica flour -
- a transmissive material). Thus, particle size distribution may affect sample
representativeness.
Soil structure (referring to the arrangement of textural units) affects the flow
of soil water (Everett, 1984). Well-structured soil, or soil containing fractures
or cavities, allows soil water to flow rapidly through interconnected soil pores
or conducting channels. Because soil-water samplers collect water from the
finer (smaller) soil pores, the resultant samples may not be representative of
bulk flow. Consequently, soil-water samplers may be inappropriate in well-
structured soil for determining the quality of water flowing to the water table.
If determined by a sampling team geologist, the oversight assistant should
record soil type and particle size. The oversight assistant should also record
visible stains, dark residues, or dead or stressed vegetation, indicating possible
soil contamination.
B-24
-------
Figure B-5. Divisions of Subsurface Water
Ground surface
"o §
N i
Zone of
saturation
Soil-water
zone
\
i
Interm
vad
ZOI
i
Cap'
ediate
ose
ie
i
llary
zone
I *
ssssssssss,s,ssss/,s,s,,s/.
Water table
•N
S
-*.
>
fc
•
> 1
>
*
> is
fit
5
Impermeable rock
B-25
-------
Sampling Soil-water samplers that collect soil-water flows in the vadose zone under
Equipment suction (negative pressures) are called suction samplers (Wilson, 1980). The
most common of these suction soil-water samplers involve either ceramic-
type samplers, such as lysimeters or filter candles, or cellulose-acetate filters.
These are described in more detail below. The oversight assistant should note
whether the sampling team equipment is consistent with the equipment listed
in the SAP.
Sampling units employing filter candles (also described as "vacuum extractors")
are installed in troughs below plant roots to sample irrigation return flow.
They are generally of little use at hazardous waste sites. In addition, cellulose-
acetate hollow fibers are likewise generally not useful for hazardous waste
field studies, but are more suited to laboratory studies (Wilson, 1980). Porous
cup lysimeters and membrane filter samples are the most common soil-water
samplers at hazardous waste sites.
Lysimeters Lysimeters uses a porous ceramic cup to collect soil water. When in contact
with the soil, soil water in the pore space is free to move into and equilibrate
with the pores in the ceramic cup. By drawing a vacuum on the inside of the
porous cup, soil water flows into the cup for collection.
There are three types of lysimeters: (1) vacuum-operated, (2) vacuum-
pressure, and (3) vacuum-pressure with check valves. Each type essentially
consists of a ceramic cup mounted on the end of a small-diameter PVC tube.
A rubber stopper is mounted on the other end of the PVC tube. Tubing is
inserted through the stopper to apply a vacuum to the cup and to remove
collected soil water.
The upper end of a vacuum-operated lysimeter (Figure B-6) projects above
the soil surface and contains a single outlet tube through which vacuum
pressure or suction is applied to draw water into the porous cup. To collect
the sample, a small-diameter tube is inserted through the outlet tube and a
hand pump draws the sample to a collection flask. Vacuum-operated
lysimeters are generally used to sample to depths of 6 feet.
Vacuum-pressure lysimeters (Figure B-6) are used to collect samples from
depths greater than the suction lift of water (roughly 25 feet). The body tube
of the sampler is generally about 2-feet long and can hold 1 liter of sample.
The vacuum-pressure lysimeter contains two tubes extending through a two-
hole rubber stopper. One tube (the discharge tube) extends to the base of the
ceramic cup and connects to a sample bottle; the other tube extends a short
distance below the rubber stopper and connects to a vacuum-pressure pump.
The .vacuum-pressure lysimeter operates by drawing a vacuum with the
discharge tube clamped. The sample is collected by opening the discharge
tube and applying air pressure, which forces the sample into the sample bottle.
One limitation to vacuum-pressure lysimeters is that the pressure that lifts the
sample to the surface also forces some sample back through the porous cup
into the formation. In addition, more pressure is required as sample depth
increases. Consequently, vacuum-pressure lysimeters are suitable for depths
of no more than 50 feet.
B-26
-------
Figure B-6. Lysimeters
PLASTIC TUBE
VACUUM TEST HAND PUMP
2-WAY PUMP
VACUUM PORT
AND GAUGE
PLAST'C
AND CLAMP
VACUUM
COLLECTED SOIL WATER SAMPLE
PRESSURE
PORT
PLASTIC TUBE
3/16-INCH
COPPER TU8E
PLASTIC PIPE
24 INCHES LONG
6-INCH HOLE
WITH TAMPED
SILICA SAND
BACKFILL
SAMPLE BOTTLE
DISCHARGE TUBE
POROUS CUP-
BENTONITE.
Vacuum Operated Lysimeter
Vacuum Pressure Lysimeter
B-27
-------
Modifying the vacuum-pressure lysimeter with check valves (Figure B-7)
prevents the device from forcing a portion of the sample back into the
formation. The modified vacuum-pressure lysimeter is divided into two
chambers connected by tubing containing a check valve. Both check valves
open upwards. When a vacuum is applied, the lower check valve opens while
the upper check valve closes, and soil water is drawn through the porous cup
and into the upper chamber. When air pressure is applied, the lower check
valve closes, and the sample is forced to the surface. Generally, nitrogen gas
is used to lift the sample to the surface, although using compressed air will not
significantly change sample chemistry (Peters and Healy, 1988).
An additional advantage of the modified vacuum-pressure lysimeter is that the
check valves allow high pressures to be applied without damaging the ceramic
cup. Also, this sampler can be used to a depth of 150 feet.
One major limitation of lysimeters is that samples cannot be obtained over the
entire range of soil-water pressures. Lysimeters will not collect samples once
the soil-water suction is great enough (about 0.8 bar) to cause an air bubble to
enter the cup instead of soil water. However, although lysimeters are effective
only over a small part of the range of suctions encountered in the subsurface
environment, lysimeter suctions of 0 to 0.8 bar include most of the soil-water
range (Everett, 1984).
Membrane Membrane filter samplers (Figure B-7) use polycarbonate or cellulose-acetate
Filter filters in conjunction with glass fiber "wicks" and collectors. In operation,
Samplers capillary action draws soil water through the glass wick and membrane filter
for collection. Advantages of the membrane filter sampler are that the
collector sheets can contact a large area of soil and maintain a favorable
collection rate when the collector becomes blocked with fine soil. Membrane
filter samplers can be used to a depth of about 12 feet. There are two types of
soil-water samples that may be collected: a grab sample or a composite sample
(see Section B.2.1). Generally, soil-water samples are grab samples, although
separate samples from different depths, locations, or times could be
composited.
The size of the sample collected is determined by the requirements for
analysis, and is specified in the SAP. For example, water samples analyzed for
purgeable organic compounds should be stored in 40 mL septum vials with no
head space (air) remaining. Water samples for metals or cyanide analysis may
fill a 16-ounce or 1-liter bottle. The size of the sample collected, however,
may be limited by the amount of soil water present in the porous cup.
Provisions for compositing successive samples to obtain a sufficient volume of
soil water to perform the required analysis should be specified in the SAP.
The SAP should also specify the order in which samples should be collected.
Generally, samples should be collected in the order of decreasing volatility;
volatile contaminants should be sampled before nonvolatile contaminants (U.S.
EPA, 1986a). See Section B.2.1 for a preferred collection order of
contaminants.
B-28
-------
Figure B-7. Suction Samplers
-VACUUM-AIR PRESSURE LINE
•UPPER CHECK \ni_vE
AMPLE DISCHARGE LINE
,UPPER CHAMBER
SOIL '/
-LOWER CHECK VALVE
-TUBING
-LOWER CHAMBER
-SUCTION CUP
SAMPLING TUBE
GLASS FI8CT
LASS FIBER "WICK
;.V COLLECTOR
SOIL
Vacuum Pressure Lysimeter
with Check Valves
Membrane Filter Sampler
B-29
-------
Sampling The amount of vacuum applied to a lysimeter and the corresponding intake
Technique rate have a significant effect on sample quality (Wilson, 1980). Specifically,
fast-rate samplers collect most of the sample at the beginning of the sampling
interval. Consequently, unless the soil-water quality is not changing with
time, the collected sample may not be representative. Therefore, in order to
collect a sample that is representative of the soil water draining to the water
table, the rate of sample collection should correspond to the pore water
drainage rate.
The oversight assistant should be aware that soil-water techniques are not
appropriate for sampling for polynuclear aromatic hydrocarbons, alkanes with
greater than 10 carbons, pentachlorophenol, and other chemicals with an
octanol water partition coefficient (log K ) of 4 or larger (Brown, 1986).
Such compounds preferentially adsorb to the soil and will generally not be
found in soil water; soil core samples should be used to detect these
compounds. Chemicals having log KQW values of 3 or less will generally be
found in soil-water samples, while chemicals with octanol water partition
coefficients between 3 and 4 may be detected by either soil-core or soil-
water techniques.
The oversight assistant should also be aware that trace-metal concentrations
can be significantly affected by soil-water collection techniques if the total
dissolved solids concentration of the soil-water is less than 500 ppm (Peters
and Healy, 1988). In such dilute soil-water solutions, the sample may not be
representative of the trace-metals concentration. In addition, although the use
of nitrogen as the pressurant in lysimeters is prudent and will preclude
oxidation of chemical constituents, the use of air causes little difference in
soil-water chemistry (Peters and Healy, 1988).
Field
Analytical
Techniques
Field analytical techniques for screening soil water (and ground and surface
water) can be broadly outlined in six categories:
• pH meters;
• Conductivity meters;
• Thermometers;
• Dissolved oxygen meters;
• Inorganic compounds kits/instruments; and
• Organic compounds instruments.
These instruments are discussed in detail in Section B.2.1, Surface Water
Sampling. Except for self-purging instruments (for example, gas
chromatographs), the oversight assistant should check that the sampling team
decontaminates the analytical equipment between samples to avoid cross-
contamination.
B-30
-------
B.2.4
Surface Soil
This section discusses methods for sampling surface soil. Although the
distinction between surface soil and subsurface soil is variable and site-
specific, surface soil is generally considered to be soil that can be sampled
using hand tools (that is, less than about 3-feet deep).
Sampling
Locations
Sampling locations for soil should be specified in the SAP. While the oversight
assistant should check if the actual sampling locations are consistent with those
listed in the SAP, the oversight assistant should also be aware that site-specific
conditions may dictate a modification in sampling location. Sampling locations
will vary with surface features such as rock outcrops, drainage patterns, fill
areas, and depositional areas. The guidelines outlined in Section B.I.I should
be followed to determine if a new sampling location is "reasonable and
consistent" with the sampling objectives, and is therefore acceptable or not.
Sampling locations should be recorded on a site map or drawing; a comparison
should be made between the actual sampling locations and those specified in
the SAP. The oversight assistant should also note the general soil sample
location, such as soil taken from a field, a drainage ditch, or beside an
impoundment.
The oversight assistant should note if the sampling team takes any samples
from depositional areas such as outwashes or previously flooded areas. For
screening purposes, the sampling team usually samples in depositional areas on
the periphery of the study area, and primarily at the downstream or
downgradient portion(s). This is not appropriate for investigative purposes
because it will bias the results toward elevated concentrations.
General Soil The general conditions of the soil and vegetation are important to surface soil
and sampling as they may provide information on potential contamination. The
Vegetation oversight assistant should be particularly interested in stains, dark residues,
Conditions and dead or stressed vegetation that may indicate soil contamination. The
oversight assistant should record the general conditions of the soil being
sampled at each location if determined by a sampling team geologist. Of
particular interest are soil moisture, soil type, particle size, and color.
Sampling Generally, any sampling equipment that preserves the integrity of the sample
Equipment and produces a sample that is representative of the sample location is
acceptable. The oversight assistant should note if the actual sampling
equipment is consistent with the sampling equipment listed in the SAP.
The sampling team should collect surface soil samples using clean trowels,
scoops or spoons, grain samplers, sampling triers or hand augers, or corers.
Soil sampling equipment used for sampling for trace contaminants should be
constructed of stainless steel. For sampling trace organic compounds, brass or
carbon steel is acceptable in addition to stainless steel. The sampling team
should never use chromium, cadmium, or galvanized-plated or -coated
equipment for soil sampling operations. Similarly, the sampling team should
not use painted equipment unless all paint and primer is removed from the
equipment by sandblasting or other means before the equipment is used for
collecting soil samples. If the sampling team uses gasoline-powered
equipment, the oversight assistant should note if the equipment is downwind
B-31
-------
to avoid cross-contaminating the surface soil samples with volatile organic
compounds.
For samples that are less than 5 inches below the surface, the sampling team
may use trowels or spoons. Garden-type trowel blades are usually about 3 by
5 inches long with a sharp tip. A laboratory scoop is similar, but the blade is
usually more curved and has a closed upper end to contain materials. Scoops
come in different sizes and are made of various materials. Trowel size should
be selected depending upon the volume and depth of the sample to be taken;
the material should be selected based on the type of contaminant. (Remember:
galvanized-plated trowels should never be used).
A grain sampler (Figure B-8) consists of two slotted telescoping tubes, usually
made of brass or stainless steel. The outer tube has a conical, pointed tip that
permits the sampler to penetrate the soils. Grain samplers are 24 to 40 inches
long by 0.5 to 1.5 inches in diameter, and are best for collecting dry, granular,
or loose soils with particles no greater than 0.25 inches in diameter (soils
classified by the Unified Soil Classification System as coarse sands or finer).
Grain samplers are of limited use for moist, compressed, and large-particle
soils.
A typical sampling trier is a stainless steel tube about 24 to 40 inches long and
0.5 to 1 inch in diameter, with a wooden handle and a slot that extends its
entire length (see Figure B-8). The tip and edges of the tube slot are
sharpened to enable the trier to cut a core when rotated in the soil. Sampling
triers (as well as hand augers) are used to sample moist, compressed soils,
although the sampler often has difficulty removing the sample that has been
cut with the trier.
The sampling team may use corers to obtain a relatively undisturbed surface
soil sample, and to obtain a quantitative measurement of soil contamination.
Thin-walled corers (known as push tubes or Shelby tubes) can be used
manually or with power equipment. Manual push tubes are straight tubes
generally 2 inches in diameter or less and are of varying length. Larger
diameter push tubes require power equipment. A tapered nosepiece acts as the
cutting edge of the tube. They are generally constructed of chrome-plated
steel or stainless steel and can usually be adapted to hold brass or
polycarbonate plastic liners.
The Shelby tube is a stainless steel tube approximately 12 inches long and 2
inches in diameter. The edges are beveled into a cutting edge at one end of
the tube. The other end can be mounted on an adapter that allows attachment
to the end of the hand auger. The Shelby tube is particularly useful for
undisturbed samples, since the sample may be shipped intact within the tube
directly to the laboratory for analysis. A split-spoon sampler may also be used
to collect undisturbed samples, but is more typically used in subsurface soil
applications.
One method of obtaining a disturbed-surface sample is by using an ordinary
post hole digger. The sampling team may use the post hole digger to obtain a
sample of surface soils to approximately 3 feet below grade.
Sample Type Surface soil samples may be either grab or composite samples. Grab samples
are samples taken at a single location (see Section B.2.1).
B-32
-------
Figure B-8. Common Soil Samplers
T
61 -100cm,
(24 • 40 in.) '
V
61 -100cm
(24 - 40 in.)
1.27-2J4cm(l/2in.-1in.)
1.27-2.54 cm (1/2 ft.-1 to.)
Grain Sampler
Sampling Trier
-------
The size of the sample collected is determined by the requirements for
analysis, and is specified in the SAP. For example, soil samples for purgeable
organic compounds analysis should completely fill a 4-ounce (120 mL) sample
container; no head space should remain in the sample containers. For trace
organic compounds and metals, 4 to.8 ounces (120-240 mL) of sample are
usually collected.
The SAP should specify the order in which samples should be collected.
Generally, samples should be collected in the order of decreasing volatility
(U.S. EPA, 1986a). See Section B.2.1 for a preferred contaminant collection
order.
Sampling The oversight assistant should be aware that many of the techniques used to
Technique collect soil samples disturb the sample, and therefore provide only semi-
quantitative or qualitative results. Before sampling, the sampling team should
remove leaves, grass, and surface debris from the sampling location by
brushing or scraping it aside. Samples are obtained using any of the
equipment described in Section B.2.4.
Composite samples should be thoroughly mixed. The SAP should describe the
specific mixing procedures. Except for volatile organic samples, the sampling
team generally removes the soil from the sampling device and places it in a
cooking-glass pan or a stainless steel pan. The soil in the pan should be
scraped from the sides, corners, and bottom of the pan, rolled to the middle of
the pan, and mixed (a Teflon-coated or stainless steel spoon should be used).
The sample should then be quartered and moved to the four corners of the
container. Each quarter of the sample should be mixed individually. Each
quarter is then rolled to the center of the pan and the entire sample is mixed
again (U.S. EPA, 1986c). To assist compositing, dry soil may also be sieved
prior to or during mixing.
Volatile organic soil samples should never be mixed in the field since this
results in significant loss of volatile constituents. Rather, volatile organic
samples should be composited by the analytical laboratory. If subsamples or
samples from different locations are to be composited, aliquots should be
collected into the same container with compositing subsequently performed in
the laboratory.
Dust control is of primary concern when sampling soils -- particularly at
highly contaminated sites. Dust generated by heavy construction equipment or
dry conditions can spread the contamination and create off-site health hazards.
The site HSP may require the sampling team to cover spoils piles or institute
other dust control measures such as spraying water or constructing perimeter
barriers. The oversight assistant should consult the site HSP and note
conditions (such as high winds) that might spread contamination from the
sampling locations.
Field Field analytical techniques are generally limited to ground water, soil water, or
Analytical soil vapor. For detailed information on ground-water field analytical
Techniques techniques, see Section B.2.1. For detailed information on soil vapor field
analytical techniques, see Section B.2.6.
B-34
-------
B.2.5
Subsurface Soil
This section discusses methods for sampling subsurface soils. Although the
depth of subsurface soils is variable and site-specific, subsurface soil may
generally be considered soil that is more than 3-feet deep.
Sampling
Locations
Sampling locations for subsurface soil samples should be specified in the SAP
(see Section B.2.1 for considerations in sampling locations). The sampling
locations should be recorded on a site map or drawing by the oversight
assistant. The agreement between the actual sampling locations and those
specified in the SAP should be noted.
General Soil Subsurface stains or residues should be noted as they could result from
and underground leaks or leachate migration. As with surface soil, if a sampling
Vegetation team geologist determines the subsurface soil type, particle size, and other
Conditions characteristics, the oversight assistant should record such information.
Sampling Generally, any sampling equipment that preserves the integrity of the sample
Equipment and produces a sample that is representative of the sample location is
acceptable. The oversight assistant should check that the actual sampling
equipment is the same as the equipment listed in the SAP.
The oversight assistant should verify that all soil sampling equipment used for
sampling for trace contaminants is consistent with the parameters set forth in
Section B.2.4.
Disturbed Soil
Samples
Many of the techniques used to collect soil samples disturb the sample,
providing only semi-quantitative or qualitative results. When disturbed soil
samples are satisfactory, the sampling team may use soil augers to collect a
subsurface sample. There are three general types of machine-driven augers:
(1) helical augers from 3 to 16 inches in diameter, (2) disc augers up to 42
inches in diameter, and (3) bucket augers up to 48 inches in diameter. Soil
augers work best in loose, moderately cohesive, moist soils, but are generally
limited to sampling soils above the water table and must be sized according to
the amount and maximum size of gravel, cobbles, and boulders present.
Undisturbed The sampling team will use a split spoon sampler most often to obtain
Soil Samples undisturbed soil samples (U.S. EPA, 1987a). A split spoon sampler is made of
heavy steel tubing that can be split into two equal halves to reveal the soil
sample (Figure B-9).
Sample Type Sample types for surface and subsurface soil are the same. Refer to Section
B.2.4 for a detailed discussion on soil sample types.
Sampling Before sampling, the sampling team should remove leaves, grass, and surface
Technique debris from the sampling location by brushing or scraping it aside. Composite
samples should be thoroughly mixed, as outlined in Section B.2.4.
B-35
-------
Figure B-9. Split Spoon Sampler
Drive Cap
Barrel
Shoe
B-36
-------
Generally, the sampling team will collect subsurface samples through two
procedures: (1) subsurface soils are exposed and are then sampled using
surface sampling equipment, or (2) samples are taken directly from the
subsurface using augers or split spoons. A split spoon sampler is attached to a
drill rod and advanced into the soil at the bottom of the borehole. The split
spoon is removed from the hole and opened, revealing the sample. The
sampling team should discard the top 2 or 3 inches of sample because it is
usually disturbed by the process.
The sampling team may expose the subsurface soil by using either an ordinary
post hole digger or by constructing test pits. Whenever these methods are
used, the oversight assistant and the sampling team should monitor the exposed
soil with an explosimeter or organic vapor analyzer (OVA) to avoid the danger
of explosion or fire (see Sections B.2.9 and B.2.6, respectively).
The sampling team may construct a test pit or trench to provide a continuous
exposure of the ground along a given line or section. The sampling team will
usually excavate a pit as a continuous line, or as a series of short pits spaced at
appropriate intervals. Test pits may be hand-dug with shovels or may be dug
with equipment such as backhoes. Test pits are generally no deeper than a few
feet below the water table. The minimum recommended cross-section for a
hand-dug pit is 3 by 5 feet. All hand-dug pits should be cribbed, normally
with 3- to 6-inch lumber. Dragline, backhoe, clamshell, caisson drilling or
auger equipment, and bulldozer pits are usually more economical than hand-
dug pits, but are not practicable where a depth of more than 15 feet is desired.
Dust control is of primary concern when sampling soils -- particularly at
highly contaminated sites. Dust generated by heavy construction equipment or
dry conditions can spread the contamination as well as create off-site health
hazards. The site HSP may require the sampling team to cover spoils piles or
institute other dust control measures such as water spraying or perimeter
barriers. The oversight assistant should consult the site HSP and note
conditions which might spread contamination from the sampling locations.
Field Field analytical techniques are generally limited to ground water, soil water, or
Analytical soil vapor. For detailed information on ground-water field analytical
Techniques techniques, see Section B.2.1. For detailed information on soil vapor field
analytical techniques, see Section B.2.6.
B.2.6 Soil Vapor
Soil vapors are gases contained in the soil pore spaces in the vadose or
unsaturated zone of the earth's upper surface. Nitrogen, oxygen, carbon
dioxide, water vapor, and smaller amounts of other chemical vapors naturally
occur in the soil. Due to contamination, other chemical vapors may also have
been introduced to the soil. These soil vapors may arise from chemicals spilled
on the surface of the ground or poured in wells or bore holes; from chemicals
in leaking impoundments or other basins; from chemicals in leaking
underground tanks and associated plumbing or pipes; or from volatilization of
chemicals in contaminated ground water. The concentrations of these
chemicals in the soil vapor will depend upon a number of parameters such as
the quantity and concentration of the source of contamination, the proximity
of the contamination to the location being monitored, the vapor pressure, the
solubility and vapor density of the contaminant, and the mobility of the
B-37
-------
contaminant through the soil. Volatile organic compounds and occasionally
mercury and radon are normally the only constituents analyzed in soil vapor
samples.
Sampling
Locations
Sampling locations and depths for soil vapor samples should be specified in the
SAP. The oversight assistant should note whether the actual locations are
consistent with the locations that are listed in the SAP, but should also be
aware that site specific conditions, such as obstructions or lack of access to the
sampling location, may dictate a modification in the sampling locations. The
oversight assistant should use his/her best judgment to evaluate whether
changes in sampling locations are reasonable and consistent with the objectives
of the sampling and analysis activities (see Section B.I.I).
The oversight assistant should record all information pertinent to the location
and depth of each soil vapor sampling point on a site map or drawing. The
agreement between the actual sampling points and those specified in the SAP
should also be noted.
General Soil If determined by a sampling team geologist, the oversight assistant should
and record the general conditions of the soil being sampled in each soil vapor
Vegetation sampling location. Items of particular interest include the amount of soil
Conditions moisture and the soil type, particle size, and color. The approximate organic
content of surface soil samples may also'be noted. If the sample is being
collected from a borehole, the oversight assistant should verify that the
sampling team geologist is maintaining a well log, copies of which should be
made available to the oversight assistant.
The oversight assistant should also note soil background conditions. It is
important to know whether the sample is being collected under an industrial
area or in an area where waste material is or was stored or disposed. Any
conditions which could affect sampling activities or sample quality should be
documented.
In addition, the general nature and condition of the vegetation in the vicinity
of each soil vapor sampling location should be documented. Special attention
should be paid to stressed or dead vegetation which may be an indication of
environmental contamination of the soil.
Sampling Soil vapor sampling equipment should be chosen to preserve the integrity of
Equipment the sample and thus to yield a sample which is representative of soil vapor
found at the sample location. Various types of soil vapor collection and
storage methods are available. Glass, Teflon, or stainless steel samplers,
including gas sample lines or containers, should be used to collect and store
soil vapor samples.
Sample Soil vapor samples may be collected by a variety of methods. These methods
Collection include the direct collection of a soil sample or soil core using soil or
Methods subsurface soil collection methods listed in Sections B.2.4 and B.2.5,
respectively, with subsequent vapor analysis, or the direct collection of soil
vapor by the use of soil vapor collection probes.
B-38
-------
The technique used to collect the soil sample should keep the sample intact to
prevent loss of soil vapors to the air. Samples collected with a split spoon
sampler are ideal (see Section B.2.5). The use of augers (see Section B.2.5)
should be avoided as this technique does not keep the soil sample intact.
Although the use of split spoons is easy to perform in the field, it allows for
the loss of some soil vapor before the sample is sealed in the sample bottle.
Alternatively, soil vapors may be collected directly by the use of a soil gas
probe. Soil gas probes consist of a long tubular probe containing holes that is
driven into the undisturbed, or minimally disturbed, soil to be sampled. The
major advantages of this type of sampling system are that it is quick and that
the sampled soil is undisturbed.
Sample
Storage or
Analysis
Methods
Some soil vapor sample analysis methods require that the soil or soil vapor
sample be stored for analysis, while other methods allow direct analysis of the
sample with no storage required.
Three types of storage are available when sample storage is required prior to
analysis. The first of these involves the collection of the entire soil sample.
Once collected, an entire soil sample may be placed in an appropriate
container (Section B.3.1) for shipment to a laboratory for analysis of the soil
vapors. Alternatively, soil vapors may be collected directly into a suitable
container (gas collection bag) using one of the probes discussed above. The
soil vapor may then be analyzed in the field by the use of calorimetric tubes,
by the use of field analytical instrumentation described for subsurface
sampling (Section B.2.5), or by the use of other, more sophisticated
instrumentation such as a gas chromatograph. The third storage technique
involves the sorption of the soil vapors onto an adsorbent material such as
activated carbon or commercially available adsorbent resins. The activated
carbon or resins are then sent to an analytical laboratory for extraction and
analysis.
There are advantages and disadvantages to each of these techniques. Direct
collection and analysis of the soil vapor using sophisticated instrumentation is
the most representative method, but requires the use of delicate equipment in
the field. The use of calorimetric tubes, on the other hand, is simple but not
considered qualitative. The soil vapor is passed through the appropriate
calorimetric tube or tubes and the concentration of the chemicals estimated by
the change in color of the material in the tube(s). The reading of the color
change in the tubes is subjective and subject to interferences.
The collection of samples in a Teflon bag is a relatively uncomplicated method
to determine the chemicals that are present in the soil as vapor. The bags,
however, may leak. In addition, certain compounds are known to penetrate
Teflon and, if the bags are exposed to light, photochemical reactions may
occur, causing the sample to be somewhat less representative.
Direct collection of soil into a bottle for laboratory analysis of the soil vapors
is also relatively uncomplicated. Unfortunately, the soil vapors collected in
this manner may not be representative of soil vapors occurring in the
environment. For example, a contaminated soil sample could be collected
from the capillary zone where soil vapors would be minimal. But once that
sample was placed in a bottle and allowed to equilibrate with air head-space,
the contaminants would begin to partition into the air -- a slow process in the
saturated zone. Thus, samples collected in this manner may provide good
information about what contamination is actually present in the soil but may
B-39
-------
not be representative of the ambient soil vapor. Also, the method of collecting
and transferring the sample to the sample bottle for this method may result in
the loss of some of the soil vapor.
Adsorption of the soil vapors onto an adsorbent material during collection is
the most complicated detection method. The soil gas must be passed through
an adsorbent material, allowing any gases to be adsorbed. The adsorbent must
be sealed and shipped to a laboratory where the gases are removed either by
heat or a solvent and then analyzed. Some chemical reactions may occur on
the adsorbent or when the material is heated or treated with solvent. Also,
some of the adsorbed materials are much harder to remove from the adsorbent
than others. The adsorbent tube is, however, easier to package, ship, and
preserve than the collection containers for the other two methods.
Sample Type Soil vapor samples are gas samples collected from locations below the surface
of the earth. They are usually collected as grab samples for the relative ease
of the analysis of these samples and also the location-specific information
which is desired from the samples.
Sampling If the sampling team uses soil sampling equipment, the oversight assistant
Technique should ensure that the soil sample is kept intact; if the sample breaks apart, the
soil vapor will escape. The sampling team will usually use a split spoon
sampler to collect the sample. To collect the sample for soil gas analyses, the
sampling team should open the split spoon sampler as soon as possible after
sample collection. The sampling team should remove a sample of soil from the
center section of the core of the split spoon sampler using a stainless steel or
Teflon-coated spatula, and immediately place it in a sample vial. The
sampling team should fill the container to minimize head space.
If the sampling team uses a soil gas probe, the team should drive the probe
into undisturbed or minimally disturbed soil. When the probe is in place at the
desired location and depth, the sampling team uses an air pump to draw gases
from the ground and into the sampler through a sample tube and pump, and
then directly to an analytical instrument, the appropriate calorimetric tube, or
a sampler storage container. The oversight assistant should check that the
sampling team operates the system for sufficient time to allow the standing air
to purge from the system before sampling. This length of time depends upon
the internal volume of the soil gas probe, the length and inside diameter of the
sample tube, and the pumping rate of the pump. An adequate length of time
can be determined by continuous sampling of contaminated soil. The gas
exiting from the sample pump should be monitored with a suitable instrument,
such as a photoionization detector, until its reading reaches a steady value,
after which the pump is allowed to run for several more minutes. At that
time, the sample may be collected. A purging time of approximately 10
minutes with a pumping rate of 4 liters per minute is usually adequate to
purge most systems.
Field
Analytical
Techniques
Field analytical techniques appropriate for screening soil vapor include:
• Organic vapor detectors, and
• Colorimetric tubes.
B-40
-------
Organic Vapor
Detector
Several types of organic vapor detectors are available for use in the field. The
most common of these are referred to as the Flame lonization Detector (FID)
of which the Foxboro organic vapor analyzer (OVA) is an example, and the
photoionization detector (PID) of which the HNu is an example. The FID uses
a hydrogen-oxygen flame to ionize organics; the PID uses an ultraviolet light
source. Both offer real-time readout in parts per million based upon the
calibration gas. Both detectors, as commonly used, are capable of determining
that organic compounds are present but not of specifically identifying the
organic compounds. FID attachments are available that allow organics to be
separated and tentatively identified. The PID is more simple than the FID to
use but both are capable of detecting organic compounds in the low ppm
range. Neither instrument works well at temperatures below 5 degrees Celsius.
The PID should not be used in very humid environments (such as rain,
although some specially modified instruments are designed to remove water
vapor before the sample reaches the detector). The PID can, by changing its
photoionization source, be made to respond to most organic compounds (except
methane and hydrogen cyanide) and some halogenated hydrocarbons. The FID
is sensitive to methane but relatively insensitive to many halogenated organics.
Colorimetric Colorimetric tubes, commonly known as Drager or MSA tubes, are used in
Tubes conjunction with an air pump to draw a known amount of gas through an
indicator tube. These tubes are usually specific to a certain chemical over a
certain concentration range. The detector tubes may also be sensitive to other,
similar chemicals; thus, their specific instructions should be carefully read.
After the tube is opened and an appropriate amount of gas is drawn through
the sample tube, the length of material in the tube which has changed color is
read from a scale etched into the side of the tube to determine the
approximate concentration of the vapor in the air. Tubes are available that are
sensitive to a variety of chemicals at various concentrations; however, because
a subjective judgment about the length of the color change in the tube is
required, their accuracy is low; in addition, some tubes are sensitive to more
than one chemical. If the upper range of the tube is exceeded, it is usually
possible to repeat the experiment using a smaller air sample. Tubes should be
read immediately after sampling. High humidity and sensitivity to chemicals
other than that for which the tube was intended may cause interferences.
B.2.7
Sludge and Slurry
Sludges and slurries are part solid and part liquid. They range in consistency
from dewatered solids to watery, low-viscosity liquids. A slurry is typically a
liquid containing relatively small amounts of suspended solids which tend to
settle out of the solution rather slowly. A sludge is also a mixture of solids
and liquids which generally has larger amounts of solids or more viscous
(thicker) liquids. While slurries are typically uniform in consistency, sludges
tend to separate with a low density or liquid layer forming on top and more
dense material, usually including solids, settling to the bottom. Sludges and
slurries may be present in impoundments, lagoons, or ponds; in storage tanks,
drums, or other containers; in settling or drying/dewatering beds; or directly
on the ground as in a landfarm.
Sampling
Locations
Sampling locations for sludges or slurries should be specified in the SAP. The
oversight assistant should rely on best professional judgment to evaluate
B-41
-------
whether any changed sampling locations are reasonable and consistent with the
sampling objectives (see Section B.I.I). Sampling locations should be recorded
on a site map or drawing and compared to actual locations listed in the SAP.
If the sludge or slurry to be sampled is contained in a tank, drum, or other
container, a single grab or a composite sample (see Section B.2.7) that is
representative of the contents of the container is adequate. If a thin layer of
overlying liquid is present, the sampling team should include a portion of this
with the sample because it is representative of the actual material and will
prevent drying or oxidation of the sample before analysis.
If the sludge or slurry is contained in an impoundment, pond, or lagoon
(collectively referred to as lagoons), the number of samples to be taken will
vary with the size and shape of the lagoon as well as other factors such as the
depth of the sludge or slurry, the location of inlets or discharges, and the rate
of accumulation or addition of the sludge or slurry to the lagoon. If the sludge
or slurry is deep, grab (discrete) samples may be collected at several depths
and at various locations throughout the lagoon. If the sludge or slurry is less
the 8 inches deep, a single sample at each sampling location is usually
adequate. In cases where the lagoon is unlined, sampling of the underlying
soil and ground water may also be required to determine the extent of
contamination.
Sludges or slurries may also be placed in drying beds, landfarms, or directly on
the ground for disposal (if it complies with land disposal restrictions (LDRs)).
In these cases the sampling locations for the sludge or slurry should be
determined by the size and depth of the area covered. Again, if the depth of
the material is less than 8 inches, usually one sample representative of the
sludge or slurry is collected at each of the sampling locations. For deeper
beds, grab samples should be collected at several depths and at various
locations throughout the body of material.
General The oversight assistant should document the manner in which the sludge or
Sludge and slurry is stored (containers, lagoons, or directly on the ground). The general
Vegetation conditions of the containers, lagoons, or areas where the sludge or slurry is
Conditions contained or deposited should also be described. This description should
contain an estimation of the areal extent covered by the sludge or slurry as
well as the approximate depth of the actual sludge or slurry and the depth of
any water or liquid covering the sludge or slurry. Any sources to or outfalls
from the area containing the sludge or slurry should be recorded. Background
conditions including abnormal vegetative conditions should also be noted.
Sampling The sampling equipment must be chosen to preserve the integrity of the
Equipment sample to yield a sample that is representative of the sludge or slurry found at
the sampling location. The condition of the sludge or slurry, the viscosity of
the sample, and depth at which the sample will be collected willaffect the
choice of sampling equipment. Stainless steel, glass, or Teflon-coated samplers
should be used to collect samples for trace organic compound analysis, while
plastic, glass, or Teflon-coated samplers should be used to collect samples for
trace metals analysis. The oversight assistant should check the sampling
equipment to verify that it is equivalent to that listed in the SAP and that it is
suitable to fulfill the sampling requirements of the project.
B-42
-------
For the purposes of this discussion, sampling equipment for sludges and
slurries has been divided into: (1) sampling equipment for solid or nearly solid
sludges, and (2) sampling equipment for nonviscous sludges and slurries.
Sampling
Equipment for
Solid or
Nearly Solid
Sludge
Solid or semi-solid sludges can be considered materials that are nonliquid.
This category would include solid or dried sludge, thick sludge, and tar or
gelled liquids. When the sludge to be sampled is solid or nearly solid, it should
be sampled using either soil sampling equipment or modifications of soil
sampling equipment.
Appropriate soil or sediment sampling equipment includes: trowels, scoops,
and spoons; corers; and dredges. The use of trowels, scoops, and spoons and
corers is discussed in Section B.2.4, surface soil sampling. The use of dredges
is discussed in Section B.2.1, surface water and sediment sampling.
Sampling
Equipment for
Non-Viscous
Sludge or
Slurry
Nonviscous sludges or slurries may have a consistency ranging from that of
water to that of thick mud. This material may contain suspended materials,
some of which may have settled to the bottom of the container. Liquid sludge
or slurry may be sampled by the use of:
• Glass tube samplers;
• Composite liquid waste samplers;
• Bacon bomb samplers;
• Pumps;
• Weighted bottle samplers; and
• Kemmerer or Van Dorn samplers.
Samples may be collected from drums, other containers, or lagoons that do not
contain more than approximately a 1-meter depth of liquid material by the use
of glass sampling tubes, composite liquid waste samplers, or peristaltic pumps.
Deeper containers, containers that are hard to reach due to location or
obstructions, or lagoons will probably be sampled by pumps, weighted bottle
samplers, bacon bomb samplers, or Kemmerer samplers.
A glass tube sampler (also known as a drum thief) may be used to collect
samples from drums or other shallow containers or lagoons. Glass tube
samplers collect a grab sample that, when collected over the entire depth of
the container or lagoon being sampled, may be representative of the material
in the container or lagoon. The length of the tube is generally determined by
the depth of the container or lagoon to be sampled. Tubes of 48-inch length
and 0.25- to 0.63-inch inside diameter are commonly used to sample drums.
Samplers of this type may also be constructed of Teflon or PVC tubing. The
disadvantage of this type of sampler is that it is easy to lose some sample
material when the tube is withdrawn from the medium being sampled.
Alternatively, a composite liquid waste sampler (COLIWASA, Figure B-10)
may be used to sample sludges or slurries in drums, other containers, or
lagoons. A composite liquid waste sampler is a glass tube sampler with a rod
running through the tube's center that can be used to open or close a stopper
B-43
-------
Figure B-10. Sludge and Slurry Samplers
(J
152
(60")
Stopper
SAMTLIIB
COLIWASA
cuat
V
Bacon Bomb Sampler
IH— J.M em n I/I")
rr
(7")
r
C*M)
.PlM(tnns1uctnt JVC or gUis)
4.13 ea (1 5/8') 1.0.
4.2« em (1 7/8') 0.0.
O.M
r«d(PVC Of
(3/8'} 0.0.
StOOptr(«tOBr«nt). *9.
Lock nut «nd w«sh«r(PVC or Teflon),
O.M « (3/8*)
B-44
-------
on the bottom of the tube. The composite liquid waste sampler is superior to
the glass tube sampler because it traps the sample in the tube so that none is
lost when the sampler is withdrawn from the sludge or slurry. The length of
the tube is determined by the size of the container to be sampled. For drum
sampling, a 60-inch tube length is standard. Tube diameters of about 1.5
inches are commonly used. Samplers of this type may also be constructed of
Teflon, PVC tubing, or stainless steel.
Tanks or lagoons may be sampled at discrete depths (usually at the top,
middle, and bottom) by using a weighted bottle sampler, a bacon bomb
sampler, or a Kemmerer sampler. If desired, samples from various depths can
be composited.
A bacon bomb sampler (Figure B-10) consists of a cylindrical container with a
valve at the bottom to allow the sample to enter when opened, and attachment
points for the trip line and sample line at the top. The container can be made
of various materials and is available in various sizes. This sampler also works
best with low viscosity-liquids but will also work with viscous liquids. This
sampler collects grab samples and may be used at any depth (NUS, 1987).
Sampling techniques are described below for both solid or nearly solid sludges
and slurries and liquid sludges and slurries. These techniques relate to the
sampling equipment described in Section B.2.7. If the sludge or slurry is
contained in a drum or container which must be opened, the sampling team,
including the oversight assistant, should ensure that all health and safety
procedures are strictly enforced. (See Section B.2.8 for additional information
on drum opening procedures.)
Sample Type Sludge and slurry samples may be composited or may be collected as discrete
grab samples. Generally, grab samples are collected and analyzed from drums
or small containers. Grab samples may also be collected from larger containers
or lagoons and may or may not be composited prior to analysis. The types of
samples to be collected will be specified in the SAP.
Sampling Sludges and slurries are generally concentrated by nature. When sampling
Technique sludges and slurries, the sampling team should avoid spreading contamination
such as by splashing, overspilling, or transporting sample material away from
the sample location. For example, contaminated sampling equipment should
not be placed or dragged on the ground. The sampling team should place all
contaminated equipment into plastic bags for transfer to the decontamination
area. If the sampling team is decontaminating sampling equipment between
sampling locations, care should be taken to ensure the proper handling and
disposal of all contaminated materials (see Section B.4.3).
Sampling techniques are described below for both solid or nearly solid sludges
and slurries and liquid sludges and slurries. These techniques relate to the
sampling equipment described in Section B.2.7. If the sludge or slurry is
contained in a drum or container which must be opened, the sampling team,
including the oversight assistant, should ensure that all health and safety
procedures are strictly enforced. (See Section B.2.8 for additional information
on drum opening procedures.)
B-45
-------
Sampling Solid or nearly solid sludges and slurries may be sampled with a trowel, scoop,
Solid or or spoon to a depth of approximately 20 inches. This method may also be used
Nearly Solid if a thin water layer (less than several centimeters) is present above the sludge.
Sludges and To use this technique, simply collect the desired amount of sample at the
Slurries desired depth, and transfer it to the appropriate sample bottle. The oversight
assistant should note, however, whether the sampling team performing
sampling causes disturbances at the interface of the water and material. If no
water layer is present, it is acceptable to remove the top several centimeters of
material before collecting the sample (NUS Corporation, 1987).
A corer (Figure B-3) may be used to sample a solid or nearly solid material.
Corers have an advantage over scoops because they can collect a sample that is
equally representative of all depths of the material being sampled as they
"punch" through the material. A sample should be collected with a
decontaminated corer by pushing it evenly into the sludge to the desired depth.
The sample is then retracted with a smooth, continuous motion. If the corer
has a removable nosepiece, it should be removed after collecting the sample.
The samples are then transferred directly to the sample bottles.
A gravity corer may be used to sample solid or nearly solid samples that are
located at the bottom of a pond, lagoon, or impoundment or in a tank or other
container. Gravity corers are similar to other corers except that they are
designed for use under the surface of liquids at depths where a regular corer
may not reach. They penetrate the sludge because of their weight rather than
being physically pushed into the material. Gravity corers are fitted with a
check valve at the top to allow the release of liquid while the corer is passing
through the liquid layer. Plastic or brass inserts should be used to avoid
contact between the sample and potentially incompatible material in the corer
walls. The oversight assistant should also note the depth to which the corer is
lowered and whether the corer is withdrawn smoothly to prevent sample loss.
A ponar dredge (Figure B-3) may also be used to sample under a layer of
liquid. The sampler should be lowered, especially the last 1/2 meter above the
surface, at a very slow rate to prevent disturbance of the surface. Once the
surface is touched, the sampling team should release several more centimeters
of sample line to allow the mechanism to release and close the clamshell. The
sampler should be slowly raised to the surface and the sample transferred to
sample bottles.
Sampling
Liquid Sludges
and Slurries
Liquid sludges and slurries in drums, other containers, or lagoons may be
sampled by the use of a length of glass tubing. To collect a sample, the glass
tube is slowly lowered into the drum or container, allowing the levels of liquid
inside and outside of the tube to remain equal, until the tube just touches the
bottom. The tube is then capped with safety-gloved thumb or stopper and
removed from the drum or container. The lower end of the tube is placed in
the sample container and the thumb or stopper is carefully and slowly removed
to allow the material to flow into the sample bottle. The glass tube, with the
permission of the RPM, may then be carefully broken and placed in the drum
which it sampled. If lined tanks or lagoons were sampled using this technique,
the glass tubing should be disposed of with other potentially hazardous
materials. Glass samplers should be used with great care in lagoons with liners
as the tube could damage the lining.
B-46
-------
Open drums, other containers, or lagoons may also be sampled by the use of a
composite liquid waste sampler (Figure B-10). To collect a sample, the
sampler slowly lowers a decontaminated composite liquid waste sampler, in the
open position, into the drum or container, allowing the levels of liquid inside
and outside of the tube to remain equal, until the sampler just touches the
bottom. The sampler tube is then pushed down to insert a stopper and close
the tube. The entire sampler can then be slowly removed from the material
being sampled; excess material should be wiped off as the tube is removed.
The lower end of the sampler is placed in the sample container and the
sampler is slowly opened, allowing the sample to flow into the sample bottle.
Disposal options for the glass outer tube of the sampler are the same as for the
glass tube sampler described above.
Containers or lagoons deeper than approximately 3 feet may be sampled by
lowering, at a predetermined rate, a vacuum line from a peristaltic pump
(Figure B-2). Without priming, this technique is limited to surface depths of
10 to 20 feet from the pump, and is not suitable for sampling for purgeable
organic compounds since suction can strip volatile compounds. Alternatively,
a submersible pump may be used to perform this sampling if it has been
determined that the contents of the container will not react with the pump.
To use these techniques, the sampler turns on the pump; then, the
decontaminated Teflon sampling tube or, alternatively, the submersible pump,
is lowered into the container or lagoon at a constant rate which will produce
sufficient volume of sample. When the bottom of the container is reached, the
pump is turned off, and the apparatus is withdrawn. If samples are desired
only at certain depths, the sample tube or the submersible pump is lowered to
that depth and turned on. The sample line is allowed to purge for a short time
and then the sample is collected.
A weighted bottle sampler (Figure B-2) may also be used to sample large
containers or lagoons. This sampler is used to obtain samples at discrete
depths (usually at the top, middle, and bottom). This apparatus consists of a
weighted glass bottle, a bottle stopper, and a sampling line for opening the
bottle and for lowering and retrieving the sample bottle. The sampler should
slowly lower the weighted bottle sampler into the material being sampled.
Care must be taken not to tug on the sample line until the sampler is at the
desired location. At that point, the sample line should be given a quick tug to
unseat the cork and allow sample to enter the bottle. After several minutes,
when the sample bottle is full, it should slowly be pulled to the surface. The
outside of the sampler should be wiped or rinsed and allowed to drain to
prevent contamination of the sample with materials collected at other depths.
The sample may then be poured directly from the sampler to the sample
bottles.
Like a weighted bottle sampler, the bacon bomb sampler is used to collect
nonpurgeable samples at discrete depths. To use the sampler, both a sample
line and a trip line must be attached to a previously decontaminated bomb.
The bomb is then slowly lowered to the desired depth by the use of the sample
line. At the desired depth, the trip line is pulled, allowing the bomb to open.
After a few minutes, the trip line is released to seal the bomb. The bomb is
then retrieved using the sample line. The outside of the bomb should be
wiped or allowed to drain to prevent contamination of the sample with
materials collected at other depths. The sample may then be transferred
directly to the sample bottles.
B-47
-------
A Kemmerer sampler or Van Dorn sampler (Figure B-l) is also useful in the
collection of grab samples at discrete depths. To use a decontaminated
Kemmerer or Van Dorn sampler, the mechanism is opened and the sample
drain closed. The sampler is slowly lowered to the desired depth. The
messenger weight is then placed on the sample line and released. Once the
messenger weight falls and causes the sampler to close, the sampler should be
slowly withdrawn. The outside of the sampler should be wiped or rinsed and
allowed to drain to prevent contamination of the sample. The drain valve may
then be opened and the sample transferred directly to the sample bottles. If
the sampler has no drain valve, the top stopper should be lifted up and the
sample poured directly into the sample bottle.
Field Field analytical techniques for screening sludge and slurry samples include:
Analytical
Techniques • Organic vapor detector;
• Calorimetric tubes;
• Combustible gas meter or explosimeter;
• Oxygen meter;
• Radiation survey meter;
• pH meter or pH paper;
• Thermometer;
• Inorganic compound detection kit/instrument; and
• Organic compound detection instruments.
Organic vapor detectors and calorimetric tubes may be used to detect volatile
compounds emanating from the samples, and are discussed in detail in Section
B.2.6 on soil vapor sampling. Combustible gas indicators, oxygen meters, and
radiation survey meters are discussed in Section B.2.9 on ambient air sampling.
The pH meters and pH paper, thermometers, inorganic compound detection
kits/instruments, and organic compound detection instruments are discussed in
detail in Section B.2.1 on surface water sampling.
B.2,8 Containerized Waste (Drums, Tanks, Hoppers, Bags, Waste Piles)
Containerized wastes are usually contained in drums, tanks, hoppers, bags, or
other containers (metal, plastic, fiber, or cardboard) but may also be placed
directly on the ground as in solid waste piles. Due to chemical degradation,
chemical reactions with the atmosphere (including moisture), and gravitational
settling and separation, the composition of the containerized waste may have
changed over time and may vary within the body to be sampled. For this
reason, the waste material may not be homogenous.
General Site The oversight assistant should document and, if possible, photograph the
and Waste condition of the containerized waste at the site. Items of concern include the
Description presence of any identification markings on the containers; the number of tiers
B-48
-------
of drums or other containers and approximate amount of material present; the
general condition of the containers including the presence of openings, rust,
leaks, overpacking; the presence of any protection from the environment (rain,
wind, and runon/runoff); whether the containers are stored outdoors; public
accessibility to the site; the presence of other waste materials at the site; and
the presence of potential hazards to workers at the site.
The oversight assistant should note any abnormal vegetation conditions. Such
conditions would include dead or stressed vegetation. These conditions are an
indication of chemical contamination that might be due to leaking containers
or previous waste handling practices.
Sampling
Locations
The oversight assistant should verify that the locations for containerized waste
sampling are those specified in the SAP or, if changed, are reasonable and
consistent with the objectives of the sampling and analysis activities (see
Section B.I.I). Sampling locations (approximate depth the sample was taken
from, location within a waste pile) should be recorded.
If the containerized waste is in a drum, tank, bag, or waste pile, a single grab
sample (or a composite sample that is representative of the contents of the
containerized waste) is usually adequate (see Section B.2.8). If a thin layer of
overlying liquid is present at the top of any containers, it is preferable to
include a portion of this liquid with the container contents because it is
representative of the actual sample and also will prevent drying or oxidation of
the sample before analysis.
If the containerized waste is in a large tank or hopper, the number of samples
to be taken will vary with the size and shape of the tank or hopper, as well as
other factors such as the depth and homogeneity of the waste material. If the
waste material is deep, grab samples may be collected at several depths and at
various locations.
Waste may also be contained in piles directly on the ground. In this case, the
sampling locations for the waste should be determined by the quantity and
homogeneity of the waste material. For deeper deposits, grab samples should
be collected at several depths and at various locations throughout the body of
material. When the waste material has been placed directly upon the ground,
sampling of the underlying soil and ground water may also be required to
determine the extent of contamination.
Sampling The sampling equipment must be chosen to preserve the integrity of the
Equipment sample to yield a sample that is representative of the containerized waste
found at the sampling location. The condition of the containerized waste, the
viscosity of the sample, and the depth at which the sample will be collected
will affect the sampling team's choice of sampling equipment. The sampling
team should use stainless steel, glass, or Teflon-coated samplers to collect
samples for trace organic compound analysis. Plastic, glass, or Teflon-coated
samplers should be used to collect samples for trace metals analysis. The
oversight assistant should verify that the sampling equipment is equivalent to
that listed in the SAP and is suitable to fulfill the sampling requirements of
the project.
B-49
-------
For the purposes of this discussion, sampling equipment for containerized
waste has been divided into: (1) sampling equipment for solid or nearly solid
waste materials, and (2) sampling equipment for waste liquids.
Sampling
Equipment for
Solid or
Nearly Solid
Containerized
Waste
Solid or semi-solid containerized waste materials includes materials such as dry
powdered or granular material, hard materials such as solids, ores or slag, thick
sludge, or tar or gelled liquids. When the containerized waste material to be
sampled is solid or nearly solid, it should be sampled using soil sampling
equipment or modifications of soil sampling equipment. If the sampling team
intends to sample solid or nearly solid material, the team may use soil sampling
equipment. This equipment includes: trowels, scoops, and spoons; corers;
triers; and grain samplers. The use of this sampling equipment is discussed in
Section B.2.4 on surface soil sampling.
Sampling
Equipment for
Containerized
Waste
Liquids
Containerized waste liquids may have a consistency ranging from that of water
to that of thick mud. This waste material may contain suspended materials,
some of which may have settled to the bottom of the container. The sampling
team may collect waste liquids by using:
• Glass tube samplers;
• Composite liquid waste samplers;
• Bacon bomb samplers;
• Pumps;
• Weighted bottle samplers; and
• Kemmerer or Van Dorn samplers.
The use of glass tube samplers, composite liquid waste samplers, and bacon
bomb samplers is discussed in Section B.2.7 on sludge and slurry sampling; the
use of pumps is discussed in Section B.2.2 on groundwater sampling; and the
use of peristaltic pumps, weighted bomb samplers, and Kemmerer or Van
Dorn samplers is discussed in Section B.2.1 on surface water sampling.
Sample Type Samples collected from containerized storage may range from liquids to solids
with any combination of these present. Sealed drums may also contain trapped
gases. Both grab and composite samples may be taken from containerized
waste. However, due to possible suspended or settled materials in
containerized waste and the typically high concentrations of chemicals present
in the material, vertical composite samples are usually collected within each
container or storage unit. In the cases of glass tube samplers or composite
liquid waste samplers, a single grab sample is actually collected but it, in
reality, is a composite of material represented at all depths in the container.
Sampling When sampling containerized waste, the sampling team should avoid spreading
Technique contamination (such as by minimizing splashing), overspilling, or transporting
sample material away from the sample location. For example, contaminated
sampling equipment should not be placed or dragged on the ground. The
sampling team should place all contaminated equipment into plastic bags for
B-50
-------
transfer to the decontamination area. If the sampling team is decontaminating
sampling equipment between sampling locations, the team should take care to
ensure the proper handling and disposal of all contaminated materials (see
Section B.4.3).
If the containerized waste is in a drum or container that must be opejied, the
oversight assistant should ensure that all health and safety procedures are
strictly enforced. Dermal or inhalation exposure to vapors, dermal exposure to
splashed or spilled chemicals, and explosions or flash fires from drums that are
not electrically grounded are all possible dangers. The contents of a sealed
drum may-also be under pressure. When dealing with unknown or extremely
hazardous chemicals, the sampling team should use remote drum-opening
equipment. For a detailed description of drum-opening equipment and
techniques the oversight assistant should consult one of the following
references:
• U.S. EPA, n.d., Drum Opening Techniques and Equipment, in Sampling at
Hazardous Materials Incidents. U.S. EPA Training Manual, U.S. EPA,
Cincinnati, Ohio.
• NUS Corporation, n.d., Drum Opening and Sampling. NUS Operating
Guidelines Manual, Procedure No. 4.28.
Once opened, the sampling team should use an air monitoring instrument (such
as explosimeter or a PID or FID) to determine the presence and nature of
potentially hazardous atmospheres. The sampling team should approach the
container from the upwind side. Based on this initial hazard assessment, it
may be necessary to don more/better protective equipment, or even evacuate.
The oversight assistant should consult the site HSP(s) for the appropriate action
levels before arriving at the site. In addition, if hazardous atmospheres are
encountered, the sampling team should try to identify the gases/vapors, and
verify that the site health and safety plan has specified applicable and
appropriate contingencies.
Sampling techniques are described below for both solid or nearly solid
containerized waste materials and containerized liquids. These techniques
relate to the sampling equipment listed in Section B.2.8.
Sampling
Solid or
Nearly
Solid
Containerized
Wastes
The use of trowels, scoops, and spoons, and corers for sampling similar waste
materials is discussed in Section B.2.7 and should be referred to by the
oversight assistant.
The sampling team may also sample solid or semi-solid (nonliquid) material
with a trier (Figure B-8). A sample is collected with a decontaminated trier
by inserting it into the waste material and rotating it for several rotations. If
the material to be sampled is dry and free flowing, the trier should be used in
a horizontal or nearly horizontal position. If the material is moist and sticky,
the trier may be used at any angle as long as the sample is not lost when the
sampler attempts to retrieve it. The trier should then be slowly withdrawn
with the slot facing upward.
The sampling team may use a grain sampler or grain thief (Figure B-8) to
sample dry powdered or granular waste materials. A grain thief consists of
two concentric tubes that can be rotated to align openings in both tubes,
allowing sample to be collected or further rotation to close the openings. The
B-51
-------
sampling team member performing sampling should close the outer tube and
insert a decontaminated sampler into the material to be sampled. The grain
thief works best if inserted at an angle but it may also be inserted vertically.
The team member should rotate the inner tube of the sampler to the open
position and wiggle or shake the grain thief several times to help material
enter the device. The sampler should then be closed and withdrawn. The
sampling team member should then carefully remove the outer tube and
transfer the sample directly to the sample bottles.
Sampling
Containerized
Liquid
Materials
Techniques for the use of glass sampling tubes, composite liquid waste
samplers, pumps, weighted bottle samplers, bacon bomb samplers, and
Kemmerer and Van Dorn samplers for sampling similar liquid waste materials
are discussed in Section B.2.7, to which the oversight assistant should refer.
Field
Analytical
Techniques
B.2.9
Field analytical techniques appropriate for screening containerized materials
include:
• Organic vapor detectors;
• Colorimetric tubes;
• Combustible gas indicator or explosimeter;
• Oxygen meter;
• Radiation survey meter;
• pH meter or pH paper;
• Conductivity meter;
• Thermometer;
• Inorganic compound detection kit/instrument; and
• Organic compound detection instruments.
Organic vapor detectors and colorimetric tubes may be used to detect volatile
compounds emanating from the samples, and are discussed -in detail in Section
B.2.6 on soil vapor sampling. Combustible gas indicators, oxygen meters, and
radiation survey meters are discussed in Section B.2.9 on ambient air sampling;
pH meters and pH paper, conductivity meters, thermometers, inorganic
compound detection kits/instruments, and organic compound detection
instruments are discussed in detail in Section B.2.1 on surface water sampling.
Ambient Air
There are two similar but distinct types of collection activities for ambient air.
The first of these is air monitoring; the second is air sampling. Both air
monitoring and air sampling are used to detect the presence of volatile organic
chemicals that have high vapor pressures and thus exist as a vapor or gas in the
atmosphere. These techniques may also be used to detect other organic
B-52
-------
chemicals, radiation, or radioactive chemicals such as radon, mercury and
other volatile inorganics, metals, and airborne paniculate matter.
Air monitoring can be defined as the "real time" or immediate collection and
analysis of air samples. Air monitoring is typically used to alert workers or
others of immediate dangers from unexpected chemicals, chemical releases, or
high dust/particulate levels. Air monitoring usually yields qualitative results.
Air sampling is the collection of air samples, usually for analysis at a later
time, and usually yields quantitative results. The type of information obtained
from air sampling (as opposed to air monitoring) is usually used to identify
and quantify the normal releases from the site. The results of air sampling
may be used to perform exposure and risk assessments or to quantify actual
releases.
Sampling
Locations
Air monitoring may be performed at predetermined geographic locations.
More commonly, however, air monitoring is performed at activity-related
locations such as at a well head, in the breathing zone of the workers, near a
split spoon sampler as it is opened, in the vicinity of drum-opening activities,
or in the vicinity of excavation of potentially contaminated areas. Areas of
potential exposure are usually determined in the field and may not be
specified in the SAP. The SAP, however, should indicate the types of
activities that require air monitoring and the chemicals or hazards that should
be monitored. This monitoring is used to alert workers, as well as residents in
the immediate area, of possible dangers that may result in an evacuation.
Air sampling is usually designed to sample emissions from an entire site or a
specified area of a site. The sampling team will typically establish sampling
locations both upwind (background air) and downwind of this area. Samples
are usually collected at 1.5 or 2 meters above ground, which is approximately
the human breathing zone (U.S. EPA, I987a).
Sampling locations for air sampling should be specified in the SAP. The
oversight assistant should note the actual locations and check to see if they are
consistent with the locations listed in the SAP. The oversight assistant should
evaluate whether changes in sampling locations are "reasonable and consistent"
with the sampling objectives. All information pertinent to the location of each
monitoring or sampling location should be recorded. The agreement between
the actual monitoring locations and those specified in the SAP should also be
noted.
General Knowledge of background conditions is critical for air monitoring and air
Background sampling. Background conditions include meteorological conditions (such as
Conditions wind speed, wind direction, temperature, or rain fall) for the area. It is
important to know the direction of prevailing winds in the area to be sampled
or monitored to be able to determine which direction is upwind and which is
downwind. This information can usually be obtained for a variety of
reporting periods from the nearest airport with a Federal weather station.
It is also necessary to be able to separate any concentrations of pollutants in
the background air from those arising from the site or activities at the site. If
air is being monitored in an area where drums are being opened and this area
is surrounded by chemical plants, it is important to know which pollutants are
B-53
-------
coming from which source. In this case, additional background monitoring
would be necessary.
Sampling The sampling team should use air sampling and monitoring equipment that will
Equipment preserve the integrity of the sample and thus yield a sample that is
representative of air found at the sampling or monitoring location. The
oversight assistant should verify that the actual monitoring and the sampling
equipment is consistent with the equipment listed in the SAP. To minimize
reactions or contamination, the sampling team should use clean glass. Teflon,
or stainless steel equipment for air sample collection and storage. Although air
monitoring equipment is usually constructed of these materials, the
requirements for air monitoring are less rigid as the sample is usually analyzed
immediately.
Air Monitoring
Equipment
The choice of monitoring instruments depends upon the potential hazards
encountered at the site. When monitoring volatile organics in the air, the
sampling team will usually use a self-contained, battery-powered organic
vapor detector such as an FID or PID (see Section B.2.6). Combustible gas
indicators or explosimeters will be used to detect levels of organics that are
potentially explosive. Oxygen meters will detect dangerously low oxygen
levels. Radiation survey meters detect high levels of radiation.
The sampling team may also use colorimetric tubes for air monitoring (see
Section B.2.9). Colorimetric tubes are frequently referred to as MSA or
Draeger tubes. Colorimetric tubes are available that are sensitive to a variety
of chemicals at various concentrations (NUS Corporation, 1987; U.S. EPA,
1987a).
Results obtained from air monitoring equipment can usually be characterized
as qualitative or useful for screening purposes only. If potential hazards are
detected, the sampling team may need to perform more quantitative air
sampling to determine actual levels of contamination.
Air Sampling
Collection
Equipment for
Organic
Vapors
Air samples are usually collected by pumping air into a sample container such
as a Teflon bag, by drawing it through a sampling tube containing an
adsorbent, or by introducing it directly to an analytical instrument. Probes, air
lines, pumps, and any storage containers or equipment should, whenever
possible, be constructed of glass, Teflon, or stainless steel to, minimize possible
reactions or contamination (U.S. EPA, 1987a).
When sample storage or preservation is required prior to analysis, several types
of storage are available. One of these involves the collection of air in a
portable container for analysis later in a laboratory. Alternatively, the air
sample may be collected and analyzed in the field by analytical
instrumentation. Another type of storage technique involves the sorption of
the chemicals in the air sample onto an adsorbent material such as activated
carbon or commercially available adsorbent resins such as Tenax. The
activated carbon or resins are then sent to the analytical laboratory for
extraction and analysis.
Air sampling equipment is also available for chemicals other than volatile
organic compounds. As it is less common to sample for other chemicals or
B-54
-------
materials such as particulate matter or radiation, the appropriate manuals for
this equipment should be reviewed.
Sample Type There are two types of air samples which may be collected. These include
grab samples, and composite or continuous samples. Grab samples are samples
taken at a single location at a single time. Samples collected over a short time
period, such as several minutes, are still considered grab samples. A sample
collected during the opening of a drum would be considered a grab sample.
Composite samples may be either combined grab samples from different
locations o.r samples collected at different times and then composited.
Continuous samples are a type of composite air sample that is collected
continuously over a predetermined period. A particulate sample collected over
a work day would be considered a composite or continuous sample. Both air
monitoring and air sampling activities may be performed as either grab or
continuous sampling.
Sampling The sampling techniques for both air monitoring and air sampling are
Technique discussed in the following sections.
Air Monitoring
The sampling team may perform air monitoring with dedicated instruments or
by the use of colorimetric tubes. Dedicated monitoring instruments contain a
sampling probe or sampling system, an analysis system, and a direct readout.
Some also contain a warning system that sounds an alarm to signify dangerous
levels. The battery in the unit must be charged and most instruments must be
calibrated before use. As calibration and use are fairly complex, the oversight
assistant should refer to the manuals supplied with this equipment. Typically,
a calibrated instrument is turned on and continually carried by one or more
workers on each sampling team while work is being performed. Background
as well as all monitoring readings should be recorded. The use of colorimetric
tubes is described in Section B.2.6.
Air Sampling Air samples are usually collected at the established sampling location by
pumping air either into a sample'container such as a Teflon bag, by drawing it
through a sampling tube containing an adsorbent, by drawing it through a
filter, or by introducing it directly to an analytical instrument. Probes, air
lines, internal pump surfaces, and any storage containers or equipment should,
whenever possible, be constructed of glass, Teflon, or stainless steel. If
samples are collected and must be preserved for subsequent analysis, they
should be appropriately labelled and stored (see Sections B.3 and B.4) (U.S.
EPA, 1987a).
The oversight assistant should check that the sampling team runs the system
for sufficient time to allow standing air to purge from the system before
sampling. This length of time depends upon the internal volume of the
system, including the probe, sample line, and pump, as well as the pumping
rate of the pump. Once the system is adequately purged, the sample may be
collected. A purging time of approximately 5 minutes with a pumping rate of
4 liters per minute is usually adequate to purge most systems.
B-55
-------
Field
Analytical
Techniques
Field analytical techniques for screening ambient air include:
• Organic vapor detectors;
• Colorimetric tubes;
• Combustible gas indicators or explosimeters;
• Oxygen meters; and
• Radiation survey meters.
Organic vapor detectors and colorimetric tubes are described in detail in
Section B.2.6 on soil vapor sampling.
Combustible A combustible gas indicator, also known as an explosimeter, determines the
Gas concentration of organic vapors present in the air as a percentage of the lower
Indicator or explosive limit of the gas used for calibration of the instrument. The lower
Explosimeter explosive limit is the lowest concentration of an organic vapor that will burn
or explode at room temperature in air that contains a normal amount of
oxygen (O,) when an ignition source is introduced. This instrument must be
calibrated frequently. The combustible gas meter works only when the air
being sampled contains 19.5 percent to 25 percent oxygen. Many chemicals,
such as those containing silicon, acids, and leaded gasoline, cause
interferences. Combustible gas indicators are usually used with oxygen
detectors and some manufacturers offer both in the same instrument. This
instrument may be calibrated and then allowed to continuously monitor the
environment where work is being performed. Some models contain an alarm
that sounds when adverse conditions arise.
Oxygen
Detector
An oxygen detector measures the percent of oxygen in the air by means of a
galvanic cell. Oxygen detectors are frequently combined with explosive gas
meters and referred to as LEL/O2 meters. Acid mists will ruin the probe.
When used at elevations significantly above sea level the meter will read low,
relative to sea level calibration, due to atmospheric pressures of less than 1
atmosphere. When used in the presence of strong oxidizers, the meter may
read high. This instrument may be calibrated and then allowed to
continuously monitor the environment where work is being performed. Some
models contain an alarm that sounds when adverse conditions arise.
Radiation Radiation survey meters are available to monitor for alpha, beta, and gamma
Survey Meter radiation. A meter which measures all three of these types of radiation is
desirable, as is a model which contains an alarm which sounds when dangerous
levels of radiation are encountered.
B.3
COMMON SAMPLING ACTIVITIES
Regardless of the medium sampled, a number of activities and considerations
are important for proper handling and preservation of the sample until it is
shipped for analysis. The sample should be placed in a suitable container, in
sufficient volume, and if necessary, filtered or mixed with preservatives so
that when analyzed, the sample is representative of the medium sampled. In
B-56
-------
addition, sample labels, sampling records, and chain-of-custody
documentation should be adequately, completely, and correctly maintained, as
they could be used as evidence during litigation. Failure to take steps to
ensure sample representativeness and accountability can render sample
collection and subsequent analysis meaningless.
B.3.1 Containers
Sample containers should be of a suitable material that is chemically
compatible with the sample; that is, they should not contaminate or degrade
the sample. The container should also hold a volume of sample sufficient to
perform all required analyses. Thus, the choice of containers depends upon
the analysis required. In addition, containers should be free of contaminants
before use.
Container The most important factors in container selection are chemical compatibility
Type and volume. Containers should not degrade, react, leach, or leak as a result of
contact with the sample. It is therefore important to have some idea of the
composition of the sample. The SAP should refer to the specific analytical
method in "Test Methods for Evaluating Solid Waste-Physical/Chemical
Methods" (SW-846) (U.S. EPA, 1986) that designates an acceptable container
for the specific type of analysis. The selection of containers, lids, and linings
should be coordinated with the laboratory, which may specify a particular
container for certain analyses.
Plastic and glass containers are generally used for sample collection. Glass
containers are relatively inert to most chemicals and can be used to collect
almost all hazardous material samples. (Two exceptions are strong alkali
solutions and hydrofluoric acid.) When organics are the analytes of interest,
glass bottles with fluorocarbon resin-lined (Teflon-lined) screw-on caps should
be used (U.S. EPA, 1986a).
When metals are the analytes of interest, fluorocarbon resin (Teflon)
containers, glass containers with Teflon-lined screw-on lids, or polyethylene
containers with polypropylene screw-on lids should be used (U.S. EPA, 1986a).
Fluorocarbon resin containers are the most inert and thus have the widest
range of application. Polypropylene, polycarbonate, and polyvinyl chloride are
also commonly available plastic containers, and should be used only when the
constituents of the sample are known not to react with plastic. Plastic bottles
are usually provided with screw caps made of the same material as the bottles;
liners are usually not required. Table B-l summarizes the types (and sizes) of
bottles recommended for each type of sample (U.S. EPA, 1987a). The choice
of container size depends upon the required analyses. The volume of sample
collected should be sufficient to perform all required analyses with an
additional amount collected (if required by the lab or the sampling plan) to
provide for quality control needs, split samples, or repeat examinations.
(Usually, 40 mL, VOA vial samples are collected in replicate pairs to provide
additional sample material for the laboratory in case one sample is not properly
extracted.) The sample volume required for each analysis is the volume of the
appropriate container less the ullage (head space) required for sample mixing
by the lab. Generally, at least 10 percent ullage should be allowed in every
sample container, except for samples containing .volatile organics or dissolved
gases, which should have no head space (U.S. EPA, 1986c).
B-57
-------
Table B-1. Sample Bottles Recommended by Sample Type
CONTAINER DESCRIPTION
8-oz amber glass bottle with Teflon-lined
black phenolic cap
40-mL glass vial with Teflon-lined silicon
septum and black phenolic cap
1-liter high-density polyethylene bottle with
white poly cap
120-mL wide-mouth glass vial with white
poly cap
16-oz wide-mouth glass jar with Teflon-
lined black phenolic cap
8-oz wide-mouth glass jar with Teflon-lined
black phenolic cap
SAMPLE TYPE
4-oz wide-mouth glass jar with Teflon-lined
black phenolic cap
1-liter amber glass bottle with Teflon-lined
black phenolic cap
32-oz wide-mouth glass jar with Teflon-
lined black phenolic cap
4-liter amber glass bottle with Teflon-lined
black phenolic cap
Extractable organics--Low-concentration
water samples
Volatile organics--Low- and medium-
concentration water samples
Metals, cyanide--Low-concentration water
samples
Volatile organics--Low- and medium-
concentration soil samples
Metals, cyanide--Medium-concentration
water samples
Extractable organics--Low- and medium-
concentration soil samples
Metals, cyanide--Low- and medium-
concentration soil samples
Dioxin--Soil samples
Organics and inorganics--High-
concentration liquid and solid samples
Extractable organics--Low- and medium-
concentration soil samples
Metals, cyanide—Low- and medium-
concentration soil samples
Dioxin--Soil samples
Organic and inorganic--High-concentration
liquid and solid samples
Extractable organics--Low-concentration
water samples
Extractable organics--Medium concentration
water samples
Extractable organics--Low-concentration
water samples
B-58
-------
Container
Condition
Besides specifying the container type, the SAP should specify the procedures
used to ensure that sample containers are free of contaminants prior to use.
Sample containers obtained from reputable vendors (such as I-Chem, Eagle-
Picher, or Environmental Sampling Supply) have been specially precleaned and
are generally suitable for use without further cleaning. For sample containers
not certified clean by the vendor (or optionally for trace contaminant
sampling) the containers, lids, and liners.should be washed with a
nonphosphate detergent, rinsed in tap water, and rinsed in distilled water (i.e.,
water having a conductivity of less than 1 jUmho/cm at 25°C). In addition, if
the containers are to be used for organic analysis, they should have a final
rinse of spectrographic grade solvent, such as hexane or methanol (U.S. EPA,
1986a; IT, 1987). Alternatively, for sample containers for metals analysis, a
1:1 (acid:water) nitric acid rinse and 1:1 hydrochloric acid rinse may precede
the tap water and distilled water rinses, respectively. The cleanliness of
sample containers, pre-cleaned or cleaned, may be verified by bottle blanks.
B.3.2
Labels/Tags
Sample container labels and tags are documents that identify and inventory
samples. Labeling procedures and information are not only important for
preventing misidentification of samples, but also are accountability documents,
forming part of the sampling records. As such, sample labels and tags may be
used as evidence in litigation. Therefore, it is essential that sample labels and
tags are adequately, completely, and correctly filled out and affixed to the
proper sample container.
Labeling
Procedure
Labels or tags should be firmly affixed to the sample container. Labels are
gummed and may be preattached (as for sample bottles from the Superfund
repository) or affixed in the field. The container should be dry enough to
securely attach the label. Alternatively, sample tags may be attached to the
sample container if gummed labels are not available or applicable. Tags are
often preferred for handling extremely contaminated samples because the
sample container must often be decontaminated before packing and shipping.
Use of tags obviates container contamination/ decontamination problems.
Labels and tags should be filled out using waterproof ink (no felt tip pens) so
they remain legible even when wet. To minimize the handling of sample
containers, labels and tags may be filled out prior to sample collection. If
filled out prior to sampling, care should be taken to affix the correct label or
tag to the proper sample container. If possible, one member of the sampling
team should fill out the tags or labels while another member does the sampling
(U.S. EPA, 1986c).
Sample tags or labels are distributed as needed to field personnel by the field
supervisor (or designated representative). Personnel are accountable for each
tag assigned to them until it has been filled out, attached to a sample, and
transferred to another individual, along with the corresponding chain-of-
custody. Tags (or labels) bearing EPA serial numbers should not be discarded
as they are accountable documents. Lost, voided, or damaged tags should be
noted in the field logbook.
B-59
-------
Labeling Sample labels or tags should, at a minimum, include the following information:
Nomenclature/
Information • Serial number -- The first digit (or digits) of the serial number should
correspond to the EPA Region where the site is located (see Figure B-8);
• Sample identification number or station number -- A unique identifying
number assigned to a specific sampling point and listed in the SAP, (The
number for a blind duplicate should not infer that the sample is a
duplicate);
• Name of Collector -- Including his/her signature;
• Date and time of collection -- The date is a six-digit number indicating
month/date/year; time is a four-digit number using the 24-hour clock
notation;
• Place of collection or station location -- The location or station description
(for example, well No. 5) as specified in the SAP (more than one sample,
each with a unique identification number, may be collected from the same
location);
• Analysis -- The type of analysis requested; and
• Preservative -- Whether a preservative is used and the type of
preservative.
Additional information that should be included, but is not required, are the
contractor project code number, a lab sample number (reserved for lab use),
and any information such as split samples, special analytical procedures, and
CLP case or sample numbers (if appropriate). Figure B-l 1 illustrates an
example of a sample tag.
B.3.3 Preservation/Handling
Once the sample has been collected, chemical and biological changes can
occur, altering the composition and thus the representativeness of the sample.
For example, the pH may change significantly in a matter of minutes, sulfides
and cyanides may be oxidized or evolve as gases, and hexavalent chromium
may slowly be reduced to the trivalent state. In addition, certain cations, such
as iron and lead, may be lost to adsorption on the walls of the sample
containers, microorganisms may grow in certain constituents, or volatile
compounds may be lost. For best analytical results, samples should therefore
be analyzed as soon as possible after collection. If samples are not
immediately taken to a laboratory they should be filtered or preserved and
stored such that these changes are retarded or prevented until the sample
reaches the laboratory.
Sample Filtering may be recommended for the inorganic analysis of samples because
Filtering acid, used either as a preservative or during analysis, can release inorganic
constituents held on suspended solids (thereby changing the constituent
chemistry of the solution). However, filtered samples may not be acceptable
for risk assessment purposes since total metal analysis requires unfiltered
samples. Thus, collected samples for metal (inorganic) analysis should either
be acid-preserved without filtering, or split into two portions: one portion
B-60
-------
Figure B-ll. Typical Sample Identification Tag
o
•MMM
1
^M^M
> \
MMM^M
1
^^••n
1
!*
•MMVB
•••••
O
CP
0
•_•_•-*•
1
O
S"
1
3
••i^B*
J
^
i €
1 «
i i
* €
PrtMrvative:
Y«» £ No D
ANALYSES
BOD Anions
SolidS (TSS) fTDS) (SS)
COO. TOC. Nutrients
Pnenolics
Mercury
Metals
Cyanide
Oil md Grease
Organtcs GO/MS
Priority Pollutants
Volatile Organics
Pesticides
Mutagenicity
Bacteriology
y
Remarks:
4-18851
Region 4 Sample Tag
Note: The obverse side of the sample tag bears and EPA logo and the appropriate
regional address.
B-61
-------
acid preserved without filtering, the second portion filtered before the
addition of acid preservative (resulting in a sample that contains only the
dissolved constituents).
Filtration through a 0.45-micron membrane filter is the most common field
method to remove suspended solids. For extremely turbid samples, large
particles can be removed with a coarse filter before the 0.45 micron filter is
used (U.S. EPA, 1987a). Samples for analysis of organic compounds should
never be filtered as many organic constituents adhere to suspended solids (U.S.
EPA, 1986a,c).
Sample Methods of sample preservation are relatively limited and are intended
Preservatives generally to: (1) retard biological action, (2) retard hydrolysis of chemical
compounds and constituents, (3) reduce constituent volatility, and (4) reduce
sorption effects. Preservation methods are generally limited to pH control,
chemical addition, refrigeration, and protection from light. The oversight
assistant should refer to "Test Methods for Evaluating Solid Waste -- Physical
Chemical Methods" (SW-846) (U.S. EPA, 1986) for the specific preservation
method that should be used for the constituent in the sample.
Samples requiring analysis for volatile, semivolatile, and nonvolatile organics
(including pesticides) should be refrigerated or iced (4°C). Low-concentration
or environmental water samples (contaminants less then 10 ppm) should be
acidified until the pH is less than 2 with 2 mL (1 + 1) of nitric acid. Cyanide
samples should be preserved with sodium hydroxide to a pH greater than 12,
iced, and if oxidizing agents are present (as indicated with potassium iodide-
starch test paper) mixed with 0.6 g of ascorbic acid per liter of sample.
Table B-2 summarizes sample preservative techniques used for some common
analyses (U.S. EPA, 1986a).
[In addition, it has recently been demonstrated that a 1:1 methanol to soil ratio
(volume to weight) significantly decreases volatile loss for soil samples (U.S.
EPA, 1991). Methanol may soon become a required preservative for soil
volatile samples.]
Oversight assistants should note that region-specific variances in sample
preservation exist. For example, Region IV requires that samples collected for
volatile analysis be preserved with hydrochloric acid. Specifically, four drops
of concentrated HC1 are added to each VOA vial before it is filled with sample
(U.S. EPA, 1987a). Region-specific variances may become dated; the
sampling team should contact the EPA or the RPM regarding regional
practices or requirements before writing the SAP.
Not all samples require preservation, including soil or sediment samples and
medium-and-high concentration water samples (10 ppm to 150,000 ppm
contaminant and greater than 150,000 ppm, respectively), although in practice,
all samples are usually iced -- particularly volatile soil samples. The addition
of preservative to samples whose constituents are unknown should generally
not be practiced because of the possibility of an adverse chemical reaction
between the preservative and the sample. Preservatives may not only alter the
physical and chemical composition of a sample, but also may be highly
reactive and hence unsafe.
B-62
-------
Table B-2. Sample Preservation Procedures
Analysis
TOC
TOX
Chloride
Phenols
Sulfate
Nitrate
Pesticides/Herbicides
Colifon Bacteria
Cyanide
Oil and Grease
Volatile, Semi-Volatile, and Non-Volatile
Orguiics
Iron
Manganese
Sodium
Total Metals
Dissolved Metals
Radium
Gross Alpha
Gross Beta
Cooled to 4
D«g. C
X
X
X
X
X
X
X
X
X
X
X
Field
Acidified to
pH <2
With Nitric
Acid
X
X
X
X
X
X
X
X
FleM
Acidified to
pH <2wfeh
Snlforie
Acid
X
X
FfaU
Addffled to
pH <2with
Sntfurfc Acid
or
Hydrochloric
Acid
X
Procrrcd
with 1ml of
I.1M
Sodium
Sattke
X
tn"eserYCd
with Sodium
Hydroxide
topH >12
X
PH
AdjBS&BCBt to
be B«twc«si 6
tadg wtth
Sodiom
Hydroxide or
Sottane Add
X
B-63
-------
Sample
Storage
Metals samples and samples not requiring preservation, such as soil samples, do
not require special handling or storage. However, such samples should be
stored in a safe and secure manner to prevent disturbance and contamination.
Samples requiring cooling to 4°C should be refrigerated or kept on ice in a
cooler. For information on storage requirements for sample shipment, see
Section B.4.1.
B.3.4
Chain-of-Custody Information
Chain-of-custody records and sample traffic reports allow sample tracking and
provide a permanent record for each sample collected. Proper completion of
chain-of-custody information is important to help ensure sample quality
during collection, transportation, and storage for analysis.
Chain-of-
Custody
Record
An adequate chain-of-custody record allows tracing of possession and
handling of individual samples from the time of field collection through
laboratory analysis. The chain-of-custody record should be included in the
shipment of each sample and should contain the following information:
« Sample number;
• Signature of collector;
• Date and time of collection;
• Sample station location;
• Number of containers;
• Signatures of people involved in the chain of possession; and
• Inclusive dates of possession.
Figure B-12 shows a sample chain-of-custody record. The original chain-
of-custody form accompanies the sample shipment, while the copies are
retained by the sampling team. When samples are split, the event should be
noted in the "Remarks" section of the chain-of-custody record. The oversight
team should complete a separate chain-of-custody record for custody and
shipment of the split samples.
Generally, as few people as possible should handle the samples to minimize the
possibility of disputed or unclear custody. Frequently, one person is
designated to be responsible for sample custody. Field personnel in possession
of the samples are personally responsible for the care and custody of the
samples until the sample is transferred or dispatched properly. A sample is in
someone's "custody" if:
• It is in one's actual possession;
• It is in one's view, after being in one's physical possession;
• It is in one's physical possession and then locked up so that no one can
tamper with it; and
B-64
-------
Figure B-12. Chain-of-Custody Record
ENVIRONMENTAL PROTECTION AGENCY
OHx* ol Enfcxo
PROJ NO PROJECT NAME
SAMPLE «.
CHAIN OF CUSTODY RECORD
STATION LOCATION
WO
or
CON-
TAIM
MOtOWJ
Cur* M», Mi k MWnut SB.
MMAUM
Om/Ttmt
Otm /Tim,
N«c«iv«d lot LJte*alo«v toy
Dm /Tun,
3-23022
B-65
-------
• It is kept in a secured area, restricted to authorized personnel only.
When transferring samples, the individuals relinquishing and receiving them
should sign, date, and note the time on the form.
Traffic
Reports
If a CLP laboratory is used for sample analysis, sample traffic reports are
required to provide a permanent record for each sample collected (US EPA,
1987a). Sample traffic reports are four-part carbonless forms printed with a
unique sample identification number. The sampling team should complete a
traffic report for each sample. The report should include the following
information: site name and location, type of laboratory analysis requested, date
of sample collection, and shipment and classification of sample concentration.
The number of containers and the total volume of each container should also
be entered for each analytical parameter. The oversight assistant should refer
to the CLP guidance (EPA, 1986b) for detailed guidance on traffic reports.
B.4
POST-SAMPLING ACTIVITIES
Post-sampling activities include packaging and shipping samples and
decontaminating them after they are collected in the field. The procedures,
methods, and requirements for these activities are described in the following
sections.
B.4.1
Packaging
Following collection and preservation of samples in the field, the samples are
packaged for shipment to the laboratory. Packaging the samples involves
following standard procedures to ensure that the samples arrive at the
laboratory intact; that is, without breakage, leakage, or spoiling. The oversight
assistant should follow the procedures described in this section for packaging
oversight samples (see Section B.5) and should also observe the sampling team
members to check their packaging methods. The following section describes
the methods and materials recommended by EPA's Sample Management Office
for packaging samples.
Methods
EPA's Sample Management Office recommends specific packaging methods
based on classification of the samples as either: 1) low-concentration samples,
2) medium-concentration samples, or 3) high-concentration samples. This
classification is based on the expected or estimated contaminant concentration
of the sample as determined by the field supervisor. The following definitions
should be used to aid in sample classification (U.S. EPA, 1987):
• Low-concentration sample -- The contaminant of highest concentration is
present at less than 10 ppm;
• Medium-concentration sample -- The contaminant of highest
concentration is present at a level greater than 10 ppm and less than 15
percent (150,000 ppm); and
• High-concentration sample -- At least one contaminant is present at a
level greater than 15 percent. Samples from drums and tanks are assumed
to be high-concentration unless available information indicates otherwise.
B-66
-------
If the expected contaminant concentration is unknown, the sample should be
handled as a high-concentration sample.
The packaging requirements for the medium- and high-concentration sample
classifications build on the requirements for packaging low-concentration
samples. Therefore, this document first describes the packaging methods
common to all classifications and then describes the remaining methods
specific to medium- and high-concentration samples. The following
packaging method should be used for all sample classifications:
• A sample tag should be attached to each sample container;
• All bottles except volatile organic analysis (VOA) vials should be taped
closed;
• VOA vials should be wrapped with paper and sealed in plastic bags. One
pair of VOAs should be placed in each bag. (Generally, VOA samples are
collected in pairs to provide an extra sample for the laboratory in case one
is not extracted properly). The plastic bags should be packed and sealed in
another sample container such as a clean paint can, marked with
directional arrows indicating which way is "up;"
• Each sample container (except for paint cans for VOA samples) should be
sealed in a plastic bag, squeezing as much air as possible from the bag;
• The sample containers should be placed in a lined, insulated shipping
container (such as an ice chest) and surrounded with packing material (at
least 1 inch of packing material in the bottom). See Section B.4.1 for a
description of acceptable packaging materials;
• The appropriate refrigeration agents should be placed in the shipping
container (see Section B.3.3);
• The lining of the shipping container should be sealed shut;
• The paperwork for the laboratory, such as chain-of-custody forms and
traffic reports (see Section B.4), should be sealed in a plastic bag and taped
to the inside lid of the shipping container;
• The shipping container should be locked or taped shut;
• At least two signed custody seals (see Section B.4.2) should be placed on
the shipping container, one on the front and one on the back. Additional
seals may be used if necessary; and
• The shipping container should be personally handed over to the carrier
(usually an overnight carrier).
For packaging medium and high-concentration samples, the following steps
should be followed instead of, or in addition to, those mentioned above.
• Each sample container should be sealed in a plastic bag and packed in a
clean paint can or similar container before being placed in the shipping
container;
B-67
-------
• Even though sample containers should be individually wrapped in plastic
bags when packaged, samples of high contaminant concentration should be
shipped in a dedicated cooler to prevent the possibility of contaminating
samples with low contaminant concentration;
• Each paint can or similar container should be marked with the appropriate
Department of Transportation (DOT) shipping information (see Section
B.4.2) and packed in the shipping container;
• Each shipping container should be marked with the appropriate DOT
shipping information (see Section B.4.2); and
• Each shipping container should be sent with a restricted-article airbill (see
Section B.4.2).
Materials EPA's Sample Management Office recommends specific materials for
packaging samples for shipment to the laboratory. The primary function of
the packaging materials is to protect the sample containers from leakage,
breakage, and spoiling. EPA recommends the following materials for
packaging samples:
• Shipping containers -- EPA recommends using hard plastic or metal picnic
coolers. The cooler provides a sturdy container for shipment to prevent
breakage of sample containers and provides an insulated vessel for keeping
samples refrigerated with ice (to prevent spoiling). The coolers can be any
size, although the sampling team should beware of very large coolers, as
they are heavy when filled with samples, ice, and packing materials. Aside
from the obvious problem in moving the heavy container, most commercial
carriers will not accept a package heavier than 100 pounds for standard
delivery. As a guideline, a 15-gallon cooler filled with samples, ice, and
packing material will probably weigh close to 100 pounds;
• Shipping container liners -- EPA recommends using a plastic bag such as a
trash bag. Plastic bags can be sealed easily with electrical tape and will
contain leaks and spills from sample containers if they occur inside the
bag. Otherwise, a leak or spill could seep out of the cooler. Similarly, ice
(used as a preservative) can be contained in a plastic bag to prevent
leakage as ice melts;
• Packing material -- EPA recommends using asbestos-free vermiculite to
protect sample containers from breakage. Perlite, styrjofoam beads, or
bubble-wrap for individual samples may also be used but are not water-
absorbent. These materials are used for absorbing any impacts and
keeping sample containers from jostling during shipment;
• Paint cans -- EPA recommends using clean paint cans for storing medium-
and high-concentration samples to keep samples isolated from each other.
In case of leakage or breakage, this would prevent contaminants from
mixing and reacting with each other in the shipping container; and
• Paperwork packaging -- EPA recommends placing the chain-of-custody
and traffic reports in plastic bags to keep the papers dry in case of
breakage or leakage from sample containers or melting ice.
B-68
-------
Other Other prescribed specifications may apply to sample packaging, depending on
Prescribed the specific types of samples collected. The sampling team should investigate
Specifications special packaging requirements by discussing suspected contaminants with the
laboratory that will do the analysis as well as with the sample carrier. For
example, dioxin samples or samples suspected of containing dioxin
contamination should be labeled as such and packaged as if they were high-
concentration samples (including DOT shipping requirements). Laboratory
personnel should be notified in advance that a dioxin sample is being shipped
so they can make arrangements for receiving and analyzing the sample. In
addition, it is important to notify laboratories of suspected contamination
because some laboratories are not equipped to handle the analysis of certain
samples (such as dioxin).
B.4.2 Shipping
Once the sample containers have been packaged, they are ready for shipment
to the laboratory. Standard procedures for shipping samples should be
followed to: ensure timely shipment to the laboratory, document possession of
the samples, ensure that the laboratory is prepared to receive the samples, and
comply with DOT regulations. The oversight assistant should follow these
procedures for shipping oversight samples and should also check the sampling
team's shipping procedures for all samples.
Timely Timely shipping is critical to maintaining the integrity (original volume and
Shipping composition) of the samples collected in the field. Samples should be analyzed
as soon as possible after sampling. If samples are analyzed in the laboratory
(rather than in the field), they must be analyzed within designated holding
times for the specific sample media and contaminants of concern, or the
composition of the samples can change. EPA's Sample Management Office
mandates the following laboratory holding times for some common samples:
Water Soil Sediment
VOA 14 days 10 days 10 days
Base Neutrals'/ 5 days 10 days 10 days
Acids
Pesticides 5 days 10 days 10 days
Cyanides 14 days 14 days 14 days
The holding time is measured from the time the sample is received by the
laboratory (not shipped) until the time the sample is extracted for analysis.
Additionally, the samples must meet technical holding times as specified in the
Federal Register. The technical holding times (which include the laboratory
holding times) are longer than the laboratory holding times to allow time for
shipping. Detailed information regarding holding times for other samples is
described in the "User's Guide to the Contract Laboratory Program" (U.S.
EPA, 1986b).
In order to allow the laboratory adequate time to analyze the samples within
the designated technical holding times, the samples must be shipped promptly.
Samples should be shipped the same day as collected, usually for next-day
B-69
-------
delivery. Even if the holding time is not likely to be exceeded, samples should
not be collected on a Friday or Saturday unless special arrangements have been
made with the laboratory to receive the sample on Saturday or Sunday.
Additionally, the sampling team should check with the carrier before
collecting samples on a Friday or Saturday to ensure that the carrier provides
overnight delivery on weekends. This step is important for ensuring that
custody of the samples is maintained and that samples are kept refrigerated
until they are received by authorized personnel at the lab (ice will not last
more than a few days, even in a cooler). Similarly, samples should not be
collected the day before a holiday unless special arrangements have been made
with the carrier and the lab.
Copies of
Chain-of
Custody Form
to
Laboratory
The chain-of-custody record allows tracing of the possession and handling of
samples from the time of collection through laboratory analysis. All sample
shipments to the laboratory should be accompanied by a chain-of-custody
form identifying their contents. The original form should accompany the
sample shipment, and the copies should be retained by the sampling team.
The chain-of-custody form should be placed in a plastic bag to keep it dry
and taped to the inside cover of the shipping container (cooler). Detailed
information regarding the information contained on the chain-of-custody
form is described in Section B.3.4.
Custody Seals
Custody seals are adhesive strips that the sampling team fastens across the
opening of the shipping container to demonstrate that the container has not
been opened before arriving at the laboratory. Usually, the sampling team
places at least two custody seals on the shipping container. The custody seals
should be signed and dated by the sampling team when applied to the shipping
container. An example of a custody seal is shown in Figure B-13.
Bill of Lading
A bill of lading (or airbill) is the form that accompanies the sample shipping
container to provide the shipping information for the carrier. The information
contained on the bill of lading includes the destination (recipient's name,
company, address), the origin of the shipment (sender's name, company,
address), the airbill number (for tracing the shipment), the sender's billing
information, and the delivery and special handling service required (such as
Saturday delivery or restricted article service for high-concentration samples).
An example of a bill of lading is shown in Figure B'-13. The sampling team
should retain a copy of the bill of lading as part of the chain-of-custody
record (see Section B.3.4) for tracing possession and handling of the shipment.
Notification of
Shipment
to Laboratory
A few days before samples are collected, the sampling team should notify the
laboratory of all sample shipments and the type of analysis required in order to
confirm the arrangements made during the initial activities (see Section B.I.I).
Confirmation will ensure that an authorized individual is available to receive
the samples, and allow the laboratory time to arrange for analysis of the
samples before holding times are exceeded. The laboratory should be apprised
of the number of samples and the type of analysis required for each, especially
if there are any changes in the original requirements. As discussed in Section
B.4.2, the sampling team should make special arrangements with the laboratory
before collecting samples on a Friday, Saturday, or the day before a holiday.
Many laboratories are willing to accept Saturday deliveries if notified in
advance, although most laboratories do not accept Sunday or holiday deliveries
in addition, most carriers will not deliver on Sundays or holidays).
Laboratories should also be notified in advance of any shipments requiring
special handling, such as dioxin samples.
B-70
-------
Figure B-13. Custody Seals and Bill of Lading
1V3S AdOiSnO
.....
...... * CUSTODY SEAL
Sigrwtur*
Custody Seals
! I
i f
» I
Bill of Lading
B-71
-------
DOT
Requirements
B.4.3
DOT requirements apply to shipment of medium- and high-concentration
samples, for both the interior sample containers (paint cans or similar
containers -- see Section B.4.1) and the shipping containers (usually coolers -
- see Section B.4.1) (U.S. EPA, 1987).
The interior containers should be marked with the proper DOT shipping name
and identification number designated in 49 CFR Part 171-177 for specific
sample types. If the sample is a liquid of uncertain nature, it should be
marked with the name "FLAMMABLE LIQUID, N.O.S." and identification
number UN1993. If the sample is a solid of uncertain nature, it should be
marked with the name "FLAMMABLE SOLID, N.O.S." and identification
number UN1325.
The shipping containers (coolers) should be marked with the DOT shipping
name and identification number, the shipper's or consignee's name and
address, an arrow or label indicating "this end up" for liquid hazardous
materials, and the DOT Hazard Class. These requirements are contained in the
following Title 49 CFR citations:
• Parts 100-177 -- Shipper Requirements and Hazardous Material Table;
• Parts 178-199 -- Packaging Specifications; and
• Section 262.20 -- Hazardous Waste Manifest.
The sampling team should refer to these regulations for more detailed
information on DOT shipping requirements.
Decontamination
Site control and decontamination are essential for maintaining health and
safety as well as for preventing cross-contamination. Two general methods of
contamination control are: (1) establishing site work zones (site control), and
(2) removing contaminants from people and equipment (decontamination).
Decontamination consists of either physically removing contaminants or
changing their chemical nature to innocuous substances. The level of
decontamination depends on a number of factors, the most important being the
type of contaminants involved. The more harmful the contaminant, the more
extensive and thorough decontamination must be.
Equipment A variety of equipment and materials are suitable for decontamination of
sampling and personnel protection equipment. Decontamination equipment is
generally selected based on availability, ease of equipment decontamination,
and disposability. Typical decontamination equipment includes: soft-bristle
scrub brushes or long-handle brushes to remove contaminants; water in
buckets or garden sprayers for rinsing; large galvanized wash tubs, stock
tanks, or plastic basins to hold wash and rinse solutions; large plastic garbage
cans or other similar containers lined with plastic bags to store contaminated
clothing and equipment; metal or plastic cans or drums to temporarily store
contaminated liquids; and other miscellaneous gear such as paper or cloth
towels for drying protective clothing and equipment.
B-72
-------
Method
Personnel protective equipment, sampling tools, and other equipment are
usually decontaminated by scrubbing with detergent water such as Alconox,
using a soft-bristle brush, followed by rinsing with copious amounts of water.
Alternatively, equipment (especially large equipment) can be cleaned using a
pressure hose or pressurized water or steam sprayer. Adhered organics may be
removed with clean tissue or rinsed with solvents, which should be collected
for disposal. Sampling equipment is further decontaminated analogous to
cleaning sampling containers (see Section B.3.1). That is, sampling equipment
used for organic samples should be rinsed with spectrographic-grade acetone,
then with spectrographic-grade methylene chloride or hexane. The solvent
should be retained for safe disposal (IT, 1987). Sampling equipment used for
metal-containing samples should be rinsed with dilute nitric or hydrochloric
acid, followed by distilled water.
Location
Location of decontamination areas depends on site-specific establishment of
zones of decreasing contamination and site access control points. Essentially,
the site is divided into three zones to reduce the migration of contaminants
from the sampling area: 1) the exclusion zone, which is the area of the site
where contamination does or could occur (including the sampling area); 2) the
contamination reduction zone, which provides a transition between
contaminated and clean zones; and 3) the clean zone. Decontamination areas
are located at the boundary between the exclusion and contamination reduction
zones.
The size and shape of each zone (and thus the distance from the sampling area)
are based on site-specific conditions. Considerable professional judgment is
needed to assure that the distances between zone boundaries are large enough
to allow room for the necessary operations, provide adequate distance to
prevent the spread of contaminants, and eliminate the possibility of injury due
to explosion or fire. The criteria used for establishing area dimensions and
boundaries include (but are not limited to):
• Physical and topographical site features;
• Weather conditions;
• Air dispersion calculations;
• Contaminant toxicological characteristics; and
• Dimensions of the contaminated area.
Frequency Sampling and analysis equipment should be free of contamination before
reuse, either at separate sample locations or sample points within the same
sample location, depending on the sampling objective. Typically, dedicated
sampling equipment is used on either a daily or even a project basis, reducing
the need for frequent decontamination. Equipment may be disposable (such as
gloves) and, therefore, not require decontamination. Some sampling teams
even find disposal of the sampling equipment itself (such as trowels) to be cost
competitive compared to adequate decontamination.
B-73
-------
Cross-
Contamination
Prevention
The most effective means of preventing cross-contamination during sampling
and analysis activities is use of dedicated equipment for each sample location.
If dedicated sampling equipment is not available for each sampling location, it
should be thoroughly decontaminated between locations. Ideally, equipment
blanks should be taken using the decontaminated equipment after each day's
work to verify that cross-contamination has not occurred (see Section B.5.3).
In any case, equipment rinse blanks should be collected at least once a week.
The QAPjP dictates the frequency of equipment blanks. Another method of
preventing cross contamination, if dedicated sampling equipment is not used,
is to sample regions of lower contamination first, proceeding to progressively
more contaminated locations.
Still another consideration in preventing cross-contamination is the exterior
contamination of sample containers from handling with contaminated gloves.
As mentioned in Section B.3.2, capped containers with samples of high
contaminant concentration may require decontamination before packing. This
may involve successive washes of the sample containers in detergent solution
and deionized water. In addition, high-concentration samples should be
packaged as described in Section B.4.1 to lessen the chance of cross-
contamination.
Off-site
Disposal
Generally, decontamination solutions and contaminated equipment must be
manifested for disposal, and taken to a licensed hazardous waste disposer.
Policy differs from region to region, however; off-site disposal should be
detailed in the sampling team's SAP or HSP and approved by the RPM.
All equipment that cannot be decontaminated and any spent decontamination
solutions must be disposed of in accordance with applicable regulations.
Clothing, tools, brushes, and other sampling equipment that cannot be
decontaminated should be secured in drums or other containers, and either
labeled and shipped offsite for disposal or held for disposal of as a part of the
planned remedial activity. Likewise, spent decontamination solutions should
be transferred to drums that are labeled prior to disposal. Clothing and other
equipment that will be decontaminated offsite should be secured in plastic
bags before removal from the site.
B.5
QUALITY REVIEW ACTIVITIES
In addition to monitoring the progress of site activities, the oversight assistant
and his/her team members are responsible for reviewing the PRP's sampling
activities and QA/QC program. The oversight assistant should conduct quality
review activities distinct from the PRP's QA/QC activities. That is, the
oversight assistant may observe the PRP's QA/QC program, including the
collection of samples.
B.5.1
Quality Review Samples
The samples that may be collected by the oversight assistant include blank,
split, and replicate samples. The following sections explain the nature of each
of these samples are, including their purpose, and discuss the general
procedures for collecting them.
B-74
-------
Trip Blanks A trip blank consists of one or more sample bottles filled with pure,
uncontaminated material similar to that which is being collected for the field
samples. The purpose of the trip blank is to check for the presence of sample
bottle or sample contamination over the course of an entire sampling event.
The presence of any contamination in the trip blank upon analysis may
invalidate the presence of the same contaminants at similar concentrations in
the field samples. (All available information should be considered when
evaluating the QA samples.) For water sampling, the trip blank must be
prepared from distilled deionized water. A minimum of one set of trip blanks
should be collected over the time period of each sampling event.
The trip blank should be prepared before commencing field activities. The
oversight assistant does not collect the set of trip blanks in the field, but
prepares the trip blanks prior to sampling and analysis, or, alternatively, may
obtain these samples from the RPM or the laboratory performing the chemical
analyses for the U.S. EPA. The trip blank samples should be brought into the
field with the empty sample bottles that will be used for the collection of other
samples. The trip blanks are subsequently placed in a sample cooler and
shipped to the analytical laboratory with the field samples when all sampling is
completed. One trip blank (two vials for volatile organics) should be prepared
in each of the appropriate sample containers for each analytical parameter that
will be analyzed. Trip blanks do not have to be treated as blind samples
(samples that are not identified to the laboratory as blanks). But there is no
reason that the analytical laboratory must know which samples are or are not
trip blanks.
As an example, a trip blank for a ground-water or surface water sample is a
sample bottle (or set of sample bottles) of distilled and deionized,
contaminant-free water, which is prepared in the laboratory and sent out to
the field. The bottle(s) stays in the field during sample collection activities
without ever being opened. When sample collection is completed, the bottles
are returned to the laboratory for analysis as if they were field samples. If
acetone is detected in the trip blank that corresponds to the samples being
analyzed for volatile compounds, this would indicate trip blank contamination
and possible field sample contamination. If acetone contamination is also
found in the field samples at similar concentrations, the acetone results for the
field samples would not be used, as the presence of acetone may be due to
contamination either from the laboratory or from the sample container itself
(U.S. EPA, 1985c).
Trip blanks are not commonly used for soil, sludge, or sediment samples due
to the difficulties of obtaining clean material that is nearly identical in
composition to the sampled soil, sludge, or sediment. Sometimes a distilled,
deionized water sample is used as a trip blank for these media. Other times a
background sample (see Section B.5.1), previously shown to be contaminant-
free, may be relied on for information on possible field or laboratory
contamination (NUS Corporation, 1987; U.S. EPA, 1986a).
Field Blanks A field blank is similar to a trip blank except that it is prepared in the field
during the course of field activities, rather than in the laboratory prior to field
activities. The number of field blanks prepared will depend upon the
conditions at the site. Typically, a field blank is collected on each day of
sampling activity. Field blanks are used to assess whether contamination has
been introduced to the samples during the field sample collection and handling
activities. Like trip blanks, the presence of any contamination in the field
B-75
-------
blank invalidates the presence of the same contaminants at similar
concentrations in the associated field samples.
To prepare a field blank, the oversight assistant should carry a container of
contaminant-free material similar to that being sampled to one of the sampling
locations being used on that specific day, and transfer this material into sample
bottles of the same types and from the same lot numbers as those being used to
collect field samples. Once prepared, the sample should be placed in one of
the sample coolers and treated the same as the field samples. One set of field
blanks should be prepared in the appropriate sample containers for each
analytical parameter that will be analyzed.
Like trip blanks, field blanks are not commonly used for soil, sludge, or
sediment samples due to the difficulties of obtaining clean material that is
nearly identical in composition. In some cases, a distilled, deionized water
sample is used for a field blank for these media. In other cases, a background
sample, previously shown to be contaminant-free, may be relied on for
information on possible field or laboratory contamination (NUS Corporation,
1987; U.S. EPA, 1986a).
Equipment An equipment blank is similar to a field blank except that the material
Blank collected in the blank bottles is transferred with decontaminated sampling
equipment of the type to be used to collect the field samples. The number of
equipment blanks to be collected depends on the types of field equipment and
decontamination procedures being used. Typically, one equipment blank is
collected for each batch of decontaminated equipment. Equipment blanks are
used to determine whether contamination has been introduced to the field
samples during their contact with the sampling equipment, which may have
been inadequately decontaminated. The presence of any contamination in the
equipment blank may invalidate the presence of the same contaminants at
similar concentrations in the associated field samples. (All information should
be considered when evaluating QA samples.)
The oversight assistant usually collects equipment blanks at the equipment
staging area or field trailer/operations center, but these samples may also be
collected in the field. An equipment blank for water samples is collected by
running distilled, deionized, contaminant-free water over or through pumps,
samplers, or other equipment that is used in the field and which may come in
direct contact with the field samples. An equipment blank for soil samples
may consist of a sample of contaminant-free soil, introduced to the sample
bottle with the appropriate sampling equipment. More commonly, distilled,
deionized water is used as the sample media for solid as well as liquid samples.
Like trip and field blanks, one set of equipment blanks should be prepared in
the appropriate sample containers for each analytical parameter to be analyzed.
Once collected, the equipment blank(s) should be treated as field samples (U.S.
EPA, 1986a).
Background The oversight assistant may collect background samples to characterize the
Sample innate level of suspected contaminants at the site (the level of contaminants
not directly associated with the site and its contamination). The oversight
assistant should collect (or split with the PRP) background samples in an
uncontaminated area upstream, upgradient, or upwind at a sufficient distance
from the area being sampled so that contamination from the same source is
unlikely. Background samples may be collected prior or during the collection
B-76
-------
of other field samples. The oversight assistant should collect the background
samples using the same media-specific and general techniques and equipment
as used to collect other field samples (see Section B.2). Once collected, the
background samples should be treated as field samples.
If the background sample also will serve as a source for blank material, the
background material should be as nearly identical in physical characteristics to
the material to be sampled as is possible. In this case, the background sample
material must also be analyzed prior to use as a source of blank material to
determine whether it is contaminant-free.
Split Samples The sampling team, along with the oversight assistant, may collect split
samples to compare the analytical results from the PRP's laboratory with those
from the EPA laboratory. Split samples are identical samples that are collected
at a single place and time, and, as necessary, divided into two or more
portions. Split samples may be collected for one analyte, for a group of
analytes, or for all analytes that are being quantified. The number of split
samples to be collected is determined by the RPM, and usually is a percentage
of all samples collected by the PRPs (see Section B.5.3).
Most samples collected by the oversight assistant/sampling team will be split
samples because field samples collected by the oversight assistant/sampling
team (with the exception of those discussed in Section B.5.1) are primarily
used to check or verify the results of the PRP- analyzed samples. Samples
may also be split to compare the analytical results of different laboratory
techniques or methods to determine whether the different techniques or
methods are generally equivalent.
Typically, split samples are collected by the sampling team, at the request of
the oversight assistant. The sample for the oversight assistant is collected into
an appropriate container or containers provided by the oversight assistant, and
then relinquished to the oversight assistant. Split samples are not always
placed in identical sample containers for use by both the oversight assistant
and the PRP due to the possibility of differing quantity requirements of the
analytical laboratories or different sources of bottles.
It is difficult to accurately split a heterogeneous sample such as a soil sample.
Ideally, the sampling team or oversight assistant should distribute the sample as
it is collected from the sampler equally between the split sample bottles, filling
the sample container for one analyte at a time. If the sample collection device
contains only sufficient sample to fill one sample bottle for one analyte, an
equal portion of the sample should be placed in each of the split sample
bottles. Additional sample should then be collected to fill the bottles.
Replicate The sampling team along with the oversight assistant may collect replicate
Samples samples to compare the analytical precision or variability of the analytical
laboratory. Replicate samples are two or more samples collected at the same
time, in the same location, with the same equipment, and deposited in
identical sample bottles. These samples will then be analyzed by the same
laboratory to determine the laboratory's precision. Like split samples, replicate
samples may be collected for one analyte, a group of analytes, or for all
analytes that are being quantified at the site. The number of replicate samples
to be collected is determined by the RPM (see Section B.5.3). For the same
B-77
-------
reasons that replicate field samples are collected, a percentage of blank
samples may also be collected in replicate.
The oversight assistant should collect the samples with the same media-specific
techniques described in Section B.2. Replicate samples should be collected in
the appropriate quantities and in appropriate sample containers for each
analytical parameter to be evaluated.
The sampling team or oversight assistant should distribute the replicate sample
in the same manner as that described above for split samples.
Replicate samples, due to their use as an evaluation of laboratory precision,
must be provided to the laboratory as blind samples. That is, the laboratory
must not know that they are replicates (NUS Corporation, 1987, U.S. EPA,
1986a, 1987a).
Field Samples Field samples may be collected by the oversight assistant in addition to those
collected by the PRP sampling team. These samples may be collected in
locations other than those sampled by the PRP sampling team. One reason for
collecting these field samples would be to provide information about suspected
contamination at a location other than where the PRPs are sampling. The
oversight assistant should collect the samples with the same media-specific
techniques described in Section B.2.
B.6 DOCUMENTATION OF SAMPLING AND ANALYSIS ACTIVITIES
The oversight assistant is responsible for the documentation of field activities.
Recordkeeping practices should include documenting the day's activities in a
field logbook or on the field activity report as well as maintaining a
photographic or video record of events. In addition, documentation may be
used during litigation to verify the quality of the data collected. Therefore, it
is essential that the oversight team keep detailed records of field activities, and
thoroughly review all notes to verify that they are accurate before leaving the
site.
B.6.1 Oversight Team Field Activity Report/Logbook
The oversight team field activity report and logbook provide daily records of
significant events, observations, and measurements during field oversight. The
field activity report and field logbook should provide sufficient data and
observations to enable the oversight team to reconstruct events that occurred
during sampling and analysis and to refresh the memory of oversight assistants
if called upon to give testimony during legal proceedings. Because oversight
field records (if referred to and admitted as evidence in a legal proceeding) are
subject to cross examination, checklist and logbook entries should be factual,
detailed, and objective.
Field activities may be recorded in either a field logbook or on the field
activity report. The advantage of the field activity report is a consistent
method of documentation for all sampling and analysis activities. If the
oversight assistant chooses, the field activity report may be used to augment or
complement the field logbook.
B-78
-------
The field activity report is a tool that has been developed specifically to assist
the oversight assistant in the field. This report is in a checklist format, which
is structured to remind the oversight assistant of the critical elements of the
sampling and analysis activities while also providing a convenient means for
documenting the field activities. The field activity report is used in
conjunction with the SAP as a tool for reminding the oversight assistant of the
specific planned activities, and for keeping a record of any activities that are
not conducted according to the plans or that the oversight assistant considers
noteworthy.
The field activity report consists of six sections including:
• Cover sheet;
• Initial activities;
• Media-specific sampling activities;
• Common sampling activities;
• Post-sampling activities; and
• Sampling QA/QC.
The field activity report cover sheet provides a format for documenting facts
concerning the general types of activities planned for the day, the personnel
present onsite, the general conditions at the site (such as weather) and any
changes in the plans for that particular day. A separate cover sheet is filled
out for each day.
The initial activities section of the report provides a checklist of activities that
the oversight assistant can use before arriving at the site to prepare for field
oversight. This section also outlines preliminary activities that the oversight
assistant should conduct at the site before sample collection. The media-
specific sampling activities section is divided into nine different sampling
media, so the oversight assistant can use only the specific subsection(s) that
he/she is interested in. Each subsection provides the oversight assistant with
an outline of the key elements of that medium. The section on common
sampling activities describes those activities that occur during sample
collection, including: sample containers, labels and tags, preservation and
handling methods, and recordkeeping requirements. The section on post-
sampling activities includes sample packaging and shipping, and
decontamination procedures. The final section included in the checklist
outlin.es the key elements of QA/QC sampling, which includes collecting the
oversight quality review samples as well as observing the PRP's QA/QC
program. Appendix B has been developed to correspond to the field activity
report and discusses the elements of the checklist in a manner that will assist
personnel in conducting oversight activities.
The field activity report is structured so that individual sections can stand
alone and the oversight assistant can select the sections he is concerned with
for a particular trip or day onsite. For example, if the only sampling planned
for a trip is ground-water and surface water sampling, the oversight assistant
can obtain the relevant information on ground water and surface water from
the SAP, remove the ground-water and surface water sampling sections from
the field activity report, and bring only those sections to the field. The
B-79
-------
sections on common sampling activities and post sampling activities are needed
in the field most of the time since they cover a broad range of daily sampling
and post-sampling activities.
The oversight assistant may choose to use separate copies of some of the
individual media checklists (perhaps one for each sampling source) depending
on the nature of the sampling. For example, if surface water sampling is
planned for two different bodies of water (i.e., a lake and a stream), the
oversight assistant might use a separate checklist for each body of water.
Similarly, the oversight assistant may use a separate copy of the sludge/slurry
checklist for sampling different lagoons or impoundments, and a separate copy
of the soil checklist for sampling gardens and yards at private residences. It
probably is not practical, however, to use a separate ground-water checklist
for each monitoring well, as the number of wells sampled in 1 day is probably
not more than five to eight (which should not be too cumbersome for the space
on the checklist). The checklists are designed to be a flexible tool for the
oversight assistant allowing for as much or as little use as required to best
serve the site-specific situation.
The oversight assistant should transfer important information from the SAP to
the field activity report form (using the "comments" space) before leaving for
the site. The assistant should then use the form to compare the planned
activities or expected conditions with the actual events in the field (using the
"Consistent With Plan" space) while at the site. Activity reports should
subsequently be summarized into a progress report for RPM review (see
Section B.I.3). In addition, copies of the logbook or the field activity report
should be made available for RPM review.
B.6.2 Oversight Team Photographic/Video Log
The oversight team should document some of the more critical field activities
with a photographic or video camera. If a Polaroid camera is used for this
purpose, the photographed activity, location, date, and time should be
recorded directly on the photograph. If film must be sent out for development
(or if videotape is used), the pertinent information should be recorded in the
field logbook by exposure number, preferably in the order the pictures were
taken. Because a camera exposure number may not exactly correspond with
the film exposure, maintaining a separate sequential photograph log as part of
the field logbook may help prevent confusion when matching the photograph
to the appropriate activity. Developed photographs should be maintained in an
album to prevent damage and preserve photographic quality. In addition,
photographs should be arranged in sequential order, or grouped by sampling or
analysis activity.
B-80
-------
FIELD ACTIVITY REPORT
COVER SHEET
Site Name: Date:
Location:
Oversight Personnel:
PRP Field
Personnel:
Weather Conditions:
Planned Activities:
Approved Changes in Work Plan:
Important Communications:
Hours Oversight Official and Staff On-site:
Oversight Official's Initials:
B-81
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
B.I INITIAL ACTIVITIES
B.I.I PREPARATION
1. Review Field Sampling Plan for:
a. Sample media
b. Location and number of samples
c. Sampling methods and equipment
d. Field personnel responsibilities/
qualifications
2. Health and Safety Requirements
a. Review health and safety plans
(PRPs and oversight officials)
b. Review health and safety
standard operating procedures
c. Review exposure limits/
action levels
d. Protective gear
e. Other considerations
NOTES:
B-82
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
3. Oversight Equipment
(Bring the following)
a. Oversight checklists
b. Field logbook
c. Camera
d. Sampling equipment (for
splits/duplicates)
e. Protective gear
f. Other
4. Coordination with:
a. PRPs
b. Sampling contractors
c. State or local environmental
authorities (if appropriate)
d. Laboratory (if appropriate)
e. EPA (if appropriate)
NOTES:
B-83
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
B.I.2 PRELIMINARY ON-SITE ACTIVITIES
1. Review Personnel Qualifications
a. Field personnel qualifications _
2. Record Location and Number
of Samples
a. Sampling locations
b. Number of samples
c. Other considerations
3. Record Sample Equipment
a. Sample Equipment
b. Appropriate equipment
c. Other considerations
4. Record Decontamination Area/
Clean Area
a. Decontamination area
Physical location
Proximity to sampling
locations
NOTES:
B-84
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
Number of
decontamination areas
b. Clean area
Physical location
Proximity to sampling
locations
Number of clean areas
S. Tour of Site
6. Equipment Calibration
Field analytical equipment
calibrated (see Appendix A3
Field Analytical Techniques
7. Other
NOTES:
B-85
-------
NOTES:
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
B.2 SAMPLING
B.2.1 SURFACE WATER
1. General Site Conditions
2. General Surface Water
Conditions
3. Sampling Locations
a. Water (depths)
b. Sediment
c. Biota
4. Sample Equipment
5. Sample Type
a. Grab
b. Composite or continuous
6. Sample Technique
B-86
-------
NOTES:
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
7. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
Calibrated before use
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
B-87
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
8. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
9. Labels/Tags
a. Labeling procedure
b. Labeling information
10.Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
NOTES:
B-88
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
d. Frequency
Sampling team
- Sampling equipment
Protective clothing
Oversight team
- Sampling equipment
- Protective clothing
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
g. Off-site disposal
RCRA/State requirements
DOT requirements
NOTES:
B-89
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
11. Preservation/Handing
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
12. Recordkeeping
a. Chain-of-Custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team checklist/logbook
Checklists
Logbook
Possession
NOTES:
B-90
-------
Date:
Site Name:
Initials:
Page *
of
Consistent
with Plan
(Y/N)
Comments
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
13. Other considerations
NOTES:
B-91
-------
Consistent
with Plan
(Y/N)
Date:
Site Name:
Initials:
Page #
of
Comments
B.2 SAMPLING
B.2.2 GROUND WATER
1. General Site Conditions
2. General Ground-water
Conditions
a. Depth to water table
b. Direction/velocity of flow
3. Well Location/Condition
4. Sampling Equipment
a. Ground water
b. Vapor
5. Sample Type
a. Grab
b. Composite or continuous
NOTES:
B-92
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
6. Sampling Technique
a. Purge volume/well volumes
b. Purge disposal
c. Collection technique
7. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
Calibrated before use
Label/log certifying
calibration
c. Operation
Duplicate verification
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
f. Action level response
NOTES:
B-93
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
8. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
9. Label/Tags
a. Labeling procedure
b. Labeling information
10. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
NOTES:
B-94
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
d. Frequency
Sampling team
- Sampling equipment
Protective clothing
Oversight team
- : Sampling equipment
Protective clothing
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
g. Off-site disposal
RCRA/State requirement
DOT requirements
NOTES:
B-95
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
11. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
12. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team field record
Checklists
Logbook
Possession
NOTES:
B-96
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
13. Other Considerations
NOTES:
B-97
-------
Consistent
with Plan
(Y/N)
Date:
Site Name:
Initials:
Page #
of
Comments
B.2 SAMPLING
B.2.3 SOIL WATER
1. General Site Conditions
2. General Soil Conditions & Types
3. Sampling Locations
4. Sampling Equipment
5. Sample Type
a. Grab
b. Composite
6. Sampling Technique
7. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standard calibration
procedures
NOTES:
B-98
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
Calibrated before use
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
8. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
9. Labels/Tags
a. Labeling procedure
b. Labeling information
NOTES:
B-99
-------
Consistent
with Plan
(Y/N)
Date:
Site Name:
Initials: _
Page*
Comments
of
10. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
- Protective clothing
Oversight team
- Sampling equipment
- Protective clothing
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
NOTES:
B-100
-------
Date:
Site Name:
laitlals:
Page # of
Consistent
with Plan
(Y/N) Comments
g. Off-site disposal
RCRA/State requirements
DOT requirements
11. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
12. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team field record
Checklists
Logbook
NOTES:
B-101
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
Possession
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
Maintenance of negatives
13. Other Considerations
NOTES:
B-102
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
B.2 SAMPLING
B.2.4 SURFACE SOIL
1. General Site Conditions
2. General Vegetation Conditions
3. General Soil Conditions & Types
4. Sampling Locations
5. Sampling Equipment
6. Sample Type
a. Grab
b. Composite
7. Sampling Technique
NOTES:
B-103
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
8. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
Calibrated before use
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
NOTES:
B-104
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
9. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
10. Labels/Tags
a. Labeling procedure
b. Labeling information
11. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
NOTES:
B-105
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
Protective clothing
Oversight team
- Sampling equipment
Protective clothing
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
g. Off-site disposal
RCRA/State requirements
DOT requirements
12. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
NOTES:
B-106
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
13. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team field record
Checklists
Logbook
Possession
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
Maintenance of negatives
14. Other Considerations
NOTES:
B-107
-------
Consistent
with Plan
(Y/N)
Date:
Site Name:
Initials: _
Page #
of
Comments
B.2 SAMPLING
B.2.5 SUBSURFACE SOIL
1. General Site Conditions
2. General Vegetation Conditions
3. General Soil Conditions & Types
4. Sampling Locations
5. Sampling Equipment
6. Sample Type
a. Grab
b. Composite
7. Sampling Technique
NOTES:
B-108
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
8. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
Calibrated before use
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
9. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
NOTES:
B-109
-------
Date:
Site Name:
Initials:
Page * of
Consistent
with Plan
(Y/N) Comments
c. Container condition
(new, decontaminated before use)
10. Labels/Tags
a. Labeling procedure
b. Labeling information
11. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
- Protective clothing
NOTES:
B-110
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
g. Off-site disposal
RCRA/State requirements
DOT requirements
12. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
NOTES:
B-lll
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
13. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team field record
Checklists
Logbook
Possession
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
Maintenance of negatives
14. Other Considerations
NOTES:
B-112
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
B.2 SAMPLING
B.2.6 SOIL VAPOR
1. General Site Conditions
2. General Soil Conditions & Types
3. Sampling Locations
4. Sampling Equipment
5. Sample Type
a. Grab
6. Sampling Technique
7. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
Calibrated before use
NOTES:
B-113
-------
Date:
Site Name:
laltlals: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
8. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
9. Labels/Tags
a. Labeling procedure
b. Labeling information
NOTES:
B-114
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
10. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
Protective clothing
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
NOTES:
B-115
-------
Date:
Site Name:
Initials: _
Page # of
Consistent
with Plan
(Y/N) Comments
g. Off-site disposal
RCRA/State requirements
DOT requirements
11. Preservation/Handling
a. Sample filtering
Refrigeration/ice
Protection from light
12. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team field record
Checklists
Logbook
Possession
NOTES:
B-116
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
13. Other Considerations
NOTES:
B-117
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
B.2.7 SLUDGE/SLURRY
B.2 SAMPLING
1. General Site Conditions
2. General Soil Conditions
& Types
3. Sampling Locations
4. Sampling Equipment
5. Sample Type
a. Grab
6. Sampling Technique
7. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
NOTES:
B-118
-------
Consistent
with Plan
(Y/N)
Date:
Site Name:
Initials: _
Page*
Comments
of
Calibrated before use
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
8. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
NOTES:
B-119
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
9. Labels/Tags
a. Labeling procedure
b. Labeling information
10. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
- Protective clothing
e. Cross contamination prevention
NOTES:
B-120
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
f. On-site waste storage
Sampling team
Oversight team
g. Off-site disposal
RCRA/State requirements
DOT requirements
11. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from
light
12. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
NOTES:
B-121
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
Photographs
c. Oversight team field record
Checklists
Bound logbook
Possession
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
13. Other Considerations
NOTES:
B-122
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
B.2 SAMPLING
B.2.8 CONTAINERIZED WASTE
1. General Site Conditions
2. General Description of Containers
3. Sampling Equipment
4. Sample Type
a. Grab
b. Composite
5. Sampling Technique
6. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
Calibrated before use
NOTES:
B-123
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
7. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
8. Labels/Tags
a. Labeling procedure
b. Labeling information
NOTES:
B-124
-------
Date:
Site Name:
Initials: _
Page # of
Consistent
with Plan
(Y/N) Comments
9. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
Protective clothing
e. Cross contamination prevention
f. On-site waste storage
Sampling team
Oversight team
NOTES:
B-125
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
g. Off-site disposal
RCRA/State requirements
DOT requirements
10. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
11. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
c. Oversight team field record
Checklists
Logbook
NOTES:
B-126
-------
Date:
Site Name:
Initials:
Page *
of
Consistent
with Plan
(Y/N)
Comments
Possession
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
12. Other Considerations
NOTES:
B-127
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
B.2 SAMPLING
B.2.9 AMBIENT AIR
1. General Site Conditions
2. General Background Conditions
3. Sampling Locations
4. Sampling Equipment
5. Sample Type
a. Grab
b. Composite or continuous
6. Sampling Technique
7. Field Analytical Techniques
a. Equipment
b. Calibration of equipment
Standardized calibration
procedures
NOTES:
B-128
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
Calibrated before use
Label/log certifying
calibration
c. Operation
d. Decontamination
e. Recording/reporting
Instrument hard-copy output
Logbook
Duplicate verification
f. Action level response
8. Containers
a. Container type (clear glass,
amber glass, plastic)
b. Container size (volume)
c. Container condition
(new, decontaminated before use)
NOTES:
B-129
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
9. Labels/Tags
a. Labeling procedure
b. Labeling information
10. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface water
Proximity to population
d. Frequency
Sampling team
- Sampling equipment
Protective clothing
Oversight team
Sampling equipment
Protective clothing
e. Cross contamination prevention
NOTES:
B-130
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
f. On-site waste storage
Sampling team
Oversight team
g. Off-site disposal
RCRA/State requirements
DOT requirements
11. Preservation/Handling
a. Sample filtering
b. Sample preservation
c. Sample storage
Refrigeration/ice
Protection from light
12. Recordkeeping
a. Chain-of-custody information
(see Post-sampling Activities)
b. Sampling team field record
Method
Photographs
NOTES:
B-131
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
c. Oversight team field record
Checklists
Logbook
Possession
d. Oversight team photographs
Subject/activity
Labeling
Possession
(photographs and negatives)
13. Other Considerations
NOTES:
B-132
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
B.3 POST-SAMPLING ACTIVITIES
B.3.1 PACKAGING
1. Methods
2. Materials
3. Other Prescribed Specifications
B.3.2 SHIPPING/CHAIN-OF-CUSTODY
a. Timely shipping
b. Number of copies of
chain-of-custody form to
laboratory
c. Custody seals
Sample containers
Shipping container
d. Bill of lading
e. Notification of shipment to
laboratory
f. DOT requirements
NOTES:
B-133
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
B.4 QA/QC
B.4.1 SAMPLING QUALITY REVIEW
1. Calibration (see Appendix A3,
Field Analytical Technique)
2. Trip Blanks
a. Location
b. Sampling procedure (see
appropriate sampling section)
3. Field Blanks
a. Location
b. Sampling procedure (see
appropriate sampling section)
4. Background Sample
a. Location
b. Sampling procedure (see
appropriate sampling section)
NOTES:
B-134
-------
Date:
Site Name:
Initials: _
Page # of
Consistent
with Plan
(Y/N) Comments
5. Split Samples
a. Location
b. Sampling procedure (see
appropriate sampling section)
6. Duplicate Samples
a. Location
b. Sampling procedure (see
appropriate sampling section)
NOTES:
B-135
-------
APPENDIX B
REFERENCES
Camp, Dresser, and McKee, undated, Basic Health and Safety Training Course Manual,
CDM150.4
Federal Register, 1984, 40CFR Part 136 Vol 49, No. 209, October 26.
IT Corporation, 1987, Manual of Sampling and Analytical Methods for Petroleum Hydrocarbons
in Groundwater and Soil.
NUS Corporation, 1987, Hazardous Materials Handling Training Manual, NUS Corporation,
Waste Management Services Group.
Planning Research Corporation, 1986, Protocol for Groundwater Inspecting at Hazardous Waste
Treatment Storage and Disposal Facilities. Planning Research Corporation, Chicago, IL.
U.S. Environmental Protection Agency, (May 1978) Revised November 1984: NEIC Policies and
Procedures. EPA-33-/9-78-001R.
U.S. Environmental Protection Agency, 1980a, Samplers and Sampling Procedures for Hazardous
Waste Streams. EPA-600/2-80-018.
U.S. Environmental Protection Agency, 1980b, "Total Organic Halide, Interim Method 450.1."
ORDEMSL, Cincinnati, OH
U.S. Environmental Protection Agency, 1981, NEIC Manual for Ground water/Subsurface
Investigations at Hazardous Waste Sites. EPA-600/2-85/104.
U.S. Environmental Protection Agency, 1986a, RCRA Ground-Water Monitoring Technical
Enforcement Guidance Document. OSWER-9950.1
U.S. Environmental Protection Agency, 1986b, User's Guide to the Contract Laboratory Program.
Office of Emergency and Remedial Response.
U.S. Environmental Protection Agency, 1986c, Engineering Support Branch, Standard Operating
Procedures and Quality Assurance Manual. Region IV, Environmental Services Division.
U.S. Environmental Protection Agency, 1986d, REM II Health and Safety Assurance Manual.
999-HSI-RT-CGSY-l.
U.S. Environmental Protection Agency, 1987a, A Compendium of Superfund Field Operations
Methods, two volumes. EPA-540/P-87/001, OWSER Directive 9355.0-1
U.S. Environmental Protection Agency, 1987b, DRAFT Site Sampling and Field Measurements
Handbook for Underground Storage Tank Releases.
U.S. Environmental Protection Agency, 1991, Soil Sampling and Analysis for Volatile Organic
Compounds, T. Lewis, et al.
-------
APPENDIX C
OVERSIGHT OF WELL DRILLING AND INSTALLATION ACTIVITIES
Drilling and installation of groundwater monitoring wells at suspected and
known hazardous waste sites is generally done to characterize the sites in terms
of the presence and types of ground water contaminants, their concentrations
and corresponding locations, their fate and transport, and ultimately the risk to
the surrounding environment and human health. In accordance with CERCLA
Section I04(a), well drilling and installation activities may be conducted by
potentially responsible parties (PRPs). This chapter describes the activities
that an oversight assistant should conduct and the factors to be considered
during oversight of PRP well drilling and installation activities.
This chapter is not intended to provide a comprehensive description on how to
drill and install ground-water monitoring wells, but is a limited discussion of
specific activities and considerations that are important from an oversight
perspective. This chapter is based on other, more complete well drilling and
installation technical documents and should not be considered a substitute for
such documents. Specifically, this chapter includes information on:
• Initial oversight;
• Borehole advancement;
• Well installation and design; and
• Post-installation.
The organization of this chapter corresponds to the field activity report for
oversight of well drilling and installation activities (see Section C.5 in this
Appendix). This chapter discusses the elements of the checklist in a manner
that will support oversight assistants with varying experience in conducting
effective field oversight.
C.I INITIAL OVERSIGHT ACTIVITIES
There are a number of activities that the oversight assistant should perform
before well installation begins. These activities will help the oversight
assistant become familiar with the planned drilling activities as well as the
health and safety requirements. In addition, initial oversight activities will
help the oversight assistant to organize and plan the resources for oversight,
coordinate with other parties involved at the site, and make the necessary
preliminary observations at the site.
The initial oversight activities for well drilling and installation are generally
the same as those described for sampling and analysis activities. These
activities include preparing for oversight by reviewing the appropriate
documents such as the work plan, the sampling and analysis plan (SAP), and
the health and safety plan (HSP); securing the necessary oversight tools;
coordinating plans and schedules with key personnel; and conducting
preliminary on-site activities such as identifying the location, number, and
type of wells that will be drilled; the equipment, techniques, and procedures
that are planned for well drilling and installation; and the procedures for
recordkeeping and documentation. Additional preliminary on-site activities
C-l
-------
include touring the site, checking the decontamination area/clean area, and
calibrating field analytical equipment.
Detailed guidance on conducting most of these activities is presented in
Appendix B, Oversight of Sampling and Analysis Activities. For well drilling,
the oversight assistant should focus attention on the objectives of the drilling
program and, when conducting oversight activities, follow the same general
approach for making judgments in the field as detailed in Appendix B. As an
example, if a characterization objective is to determine the horizontal extent
of ground-water contamination downgradient of a manufacturing facility, the
oversight assistant should not allow a well location to be moved upgradient of
the facility regardless of the reason. To make this decision, the oversight
assistant should also be familiar with the site conditions, such as the general
direction of ground-water flow. To determine the objectives of the drilling
program, the oversight assistant should refer to the work plan, SAP, and
drilling specifications and should consider the following:
• Site background and the history of previous activities at or concerning the
site;
• Suspected contaminants and the reason for concern (for example, health
effects, surrounding population, or migration of contamination);
• Delineation of contamination and possible pathways of migration; and
• Physical characteristics of the soil or bedrock such as grain-size
distribution, permeability, and cohesiveness.
Other initial oversight activities specific to well drilling and therefore not
described in Appendix B include reviewing the location and number of
boreholes and the type of drilling equipment specified.
The oversight assistant should be familiar with the planned location and
number of boreholes designated in the work plan and should compare the plan
with the actual number and location of boreholes drilled in the field. A site
visit by all parties to select boring locations is strongly suggested. The
oversight assistant should not delay the PRP's activities to check compliance
with the work plan, but rather should gather information by observing the
PRP or by conversing with the field supervisor at the beginning of each day.
If the field supervisor gives a briefing and safety meeting at the start of each
day, this is a good time for the oversight assistant to gather information.
Frequently, borehole locations will be modified in the field, usually when
access to a planned well location is obstructed by an unforseen physical
barrier. For example, unexpected utilities or refusal may be encountered
during drilling. Also, changes in weather conditions may make a planned
drilling location inaccessible to a drill rig. The oversight assistant should make
a note in the field activity report of any changes in the drilling location and
should use his/her judgment to evaluate whether the change is reasonable. To
make this evaluation, the oversight assistant should consider the objectives of
the well drilling and installation activities as described in the work plan and
the SAP. PRP suggestions for changes in borehole locations may require
additional wells if the PRP changes result in inadequate data.
If the oversight assistant feels that a change in borehole location might
adversely affect the integrity or usefulness of the well, a discussion should be
C-2
-------
held with the field supervisor and the outcome reported to the RPM at a
reasonable time thereafter. If the dispute cannot be resolved, the oversight
assistant should follow up with the RPM at the first available moment.
Conversely, preliminary data gathered from previous boreholes might suggest
better locations for determining the extent of contamination.
Before arriving onsite, the oversight assistant should be familiar with the types
of well drilling and installation equipment designated in the work plan and
should compare this equipment to the equipment being used at the site. The
oversight assistant should focus attention on the major types of equipment,
such as the type of drill rig, casing diameter, type and length of well screen
and risers, and filter pack and annular sealant materials. The size of the drill
bit or the type of drill rod coupling should be compatible with the well design
criteria and specification in the work plan, but are of minor concern during
preliminary on-site activities.
If the major type of equipment the PRP has at the site is different from what
was expected, the oversight assistant should refer to the detailed information
on well drilling and installation sampling activities (Section C.2) to evaluate the
validity of the equipment substitution, and should notify the RPM. The
assistant should also pay attention to the use of the equipment during drilling
and installation activities. If the oversight assistant feels that the equipment is
not acceptable, a discussion should be held with the field supervisor and the
outcome reported to the RPM at a reasonable time thereafter. If the dispute
cannot be resolved, the oversight assistant should follow up with the RPM at
the first available moment.
C.2 BOREHOLE ADVANCEMENT
Installation and placement of a ground-water monitoring well is preceded by
drilling a borehole. Advancing the borehole consists of drilling the borehole,
and includes sampling subsurface formations to define site stratigraphy (and
soil contamination) as well as taking steps to prevent contaminated soil zones
from contaminating other zones. To help ensure that the objectives of a
ground-water monitoring well program are met, the essential elements
involved in borehole advancement should be performed effectively.
Specifically, unless site conditions require changes, the drilling activities
should be conducted in accordance with the approved work plan, SAP, and
drilling specifications. In addition, as with any contaminated site, drilling and
sampling equipment must be properly decontaminated to prevent cross-
contamination, and drilling waste must be properly managed.
C.2.1 Drilling Activities
Drilling activities include finalizing borehole location, selecting the
appropriate drilling method, mobilizing the necessary equipment, and
conducting the drilling. In addition, drilling activities include properly
managing drilling wastes such as drill cuttings or drilling muds, as well as
reducing the potential for spread of contamination between stratigraphic
layers.
Well Location The planned location and number of wells designated in the work plan, SAP,
or drilling specifications are usually the result of a geological reconnaissance or
C-3
-------
a preliminary borehole program. A geological reconnaissance program is a
general exploratory survey of the main features of a region, conducted to
define the geology beneath the site area as well as identify ground-water flow
paths. This study is usually preliminary to a more detailed survey and thus
determines potential pathways of contaminant migration.
Geological reconnaissances depend on the existing database for a particular site
and involve direct field methods such as boring programs as well as indirect
methods of geologic investigation such as geophysical surveys. Sites having
little existing information concerning site setting and relevant geologic features
may require more detailed work than sites with a considerable database. Thus,
the PRP's work plan, SAP, or drilling specifications may rely heavily on
existing reports, maps, and available literature to characterize the
hydrogeology of the site. If more information is necessary to determine
suitable groundwater monitoring well locations, boring programs or
geophysical surveys will be conducted prior to the initiation of drilling
activities (however, it is not unusual for geophysical surveys to be conducted
in conjunction with drilling activities). Thus, preliminary well locations are
determined before oversight of well drilling and construction activities,
although they may be modified on the basis of geophysical surveys after the
oversight assistant has arrived at the site.
Geophysical surveys employ such indirect (instrument) methods as resistivity,
electromagnetic conductivity, gradiometers and magnetometers, seismic
reflection, and ground penetrating radar. Geophysical methods are used
primarily to supplement direct information such as continuity of stratigraphy
between boreholes, and to locate buried metallic objects such as drums or
reinforced concrete. Magnetic methods detect metallic interference whereas
seismic and radar devices detect strata structural discontinuities such as
boulders or clay layers. Geophysical surveys can also detect contaminant
plumes if resistivity or surface- soil- gas probes are used (although soil- gas
monitoring, defining vertical and horizontal plume dimensions, may be
regarded as a direct field method).
Geophysical surveys may be conducted in conjunction with a geological
reconnaissance, or just prior to drilling. In either case, geophysical surveys
may help to ensure that the preliminary well locations are suitable for drilling
activities. If refusal is encountered (that is, a buried object stops drilling), or
if the survey indicates that the well could be better placed, the well may
generally be moved 5 to 10 feet (preferably downgradient) without
constituting a change in well location (although the relocation of the well
should be reported to the RPM). Beyond a 10-foot move, however, the well
location should be respotted, with RPM approval, in accordance with the well
program objectives.
Geologic Units The oversight assistant should observe that as a borehole is drilled, the PRP's
driller or qualified scientist maintain a detailed and sequential record of the
progress of drilling through the geologic units encountered. The depths and
thicknesses of the earth materials penetrated, soil description and
classification, and unusual or significant conditions should be recorded in a
boring log. (See Section Cl.2.2 for information on field screening and
logging.)
The geologic units encountered are important for determining the potential
pathways and retention of contamination. Geologic units are also important
C-4
-------
for well construction and operation. And, although documenting the depths
and thicknesses of geologic units is generally more important for the PRP or
its drillers, the oversight assistant should note the geologic units encountered
during borehole advancement as a check on the information recorded in the
site drilling log.
Depth of
Borehole
The borehole depth is generally specified in the work plan, SAP, or drilling
specifications and is determined by the geological reconnaissance or other
ground-water elevation data so that the screened interval (or intake) of the
well reaches the desired water-bearing unit. However, it may be necessary to
deepen the borehole if the aquifer of interest is deeper than expected due to
pumping from nearby production or treatment wells, temporal variations in
recharge patterns from tidal effects'or river stages, or drought.
Generally, the borehole should be deep enough so that the screened interval of
the monitoring well is within the water-bearing unit of interest, regardless of
periodic changes in water-level elevation. Exceptions to this are shallow or
perched aquifers, and cases when it is desirable to have an immiscible layer in
contact with the well screen for sampling or recovery. The oversight assistant
should record borehole depth and any reasonable changes in borehole depth
from the work plan. Significant deviations from the work plan (such as a
borehole that stops short of the aquifer of interest) should be brought to the
attention of the PRP field supervisor, and if not corrected, to the attention of
the RPM.
Type of
Drilling
The oversight assistant should be aware that a variety of well-drilling methods
can be used in the installation of ground-water monitoring wells; the following
are the most common methods: auger, rotary, and cable tool. Depending on
the purpose of the well drilling program, one or more drilling methods may be
employed for installing the same well. For example, if soil sampling is not
required, rotary drilling may be preferred because it rapidly advances the
borehole; however, cuttings lifted to the surface by a drilling fluid are
generally sampled only for stratigraphy, and not for contamination. Sampling
ahead of the borehole requires removing the drill string, and may be
complicated by the presence of drilling fluid. By comparison, hollow-stem
augers remain in place during sampling. Alternatively, cable tool drilling
allows the collection of excellent formation samples, but is relatively slow.
Table C-1 summarizes the advantages and disadvantages of the common
drilling methods.
The selection and implementation of the actual drilling method(s) is a function
of site-specific geologic conditions and sampling and analysis objectives. The
drilling contractor will best know his/her own capability for successfully
completing a well to the design depth. The drilling contractor, however, is
generally not the best one to assess the associated sample representativeness.
Regardless of the drilling method selected, it should minimize disturbance of
subsurface materials and not contaminate the subsurface or ground water.
(U.S. EPA, I986a) For example, lubricant should not be used on drill rods.
Hollow-stem Hollow-stem augers are among the most frequently used tools when advancing
Augers a borehole in unconsolidated materials -- especially when soil sampling is
required. The hollow-stem auger consists of a section of seamless steel tube
with a spiral flight, an attached finger-type cutter head, and a center drill
C-5
-------
TABLE C-l. DRILLING METHODS SUMMARY1
Drilling Technique
Depth Limitation (ft.)
Advantages
Disadvantages
Auger
Hollow Stem
Solid Stem
150-300
100- 150
Ease of soil sampling. Drilling fluids
normally not used.
Well can be constructed inside auger; acts as
casing.
Good in moist, mainly cohesion-less soils,
and medium-soft to stiff cohesive soils.
Not suitable for drilling through upper or
perched aquifers.
Not suitable for consolidated formations.
Transports contamination downward.
Not suitable for undisturbed soil samples or
Not suitable for undisturbed soil
determining stratigraphy.
Not suitable in caving formations without
casing,, nor in very hard or cemented soils
(e.g., containing boulders).
Mud Rotary
5000+
Rapid drilling.
Can leave boring open during drilling.
Good cutting samples.
Mud may plug or be lost to permeable zone.
Slow or difficult for formations containing
coarse gravel, or numerous stones and
boulders. Mud can affect chemistry or
borehole and groundwater samples, and
operation of well without proper
development.
Air Rotary
5000+
No drilling fluid contamination of ground
water.
Fast in hard rode and other consolidated
formations.
Containment of drilling returns difficult;
potential health and safety concern
Strips volatiles.
Not suitable for drilling through
unconsolidated soils.
Cable Tool
1000+
Only small amounts of water added and
removed from borehole.
Suitable for caving,, and gravel or boulder
formations.
Good for sampling.
Slow.
Casing must be used (does not seal off
upper aquifers).
Cable tool rigs may not be readily available.
U.S. EPA, 1986a, 1987a
-------
stem composed of drill rods with an attached center plug at the bottom (see
Figure C-l). The hollow-stem auger is configured with adapters at the top of
the drill stem and auger flight, allowing the auger to advance with the plug in
place. This arrangement forces cuttings to the surface around the exterior of
the auger during drilling, leaving the interior of the auger free of soil.
To obtain a soil sample, the center stem and plug are removed, and the
appropriate sampler (for example, a split spoon) is driven ahead of the auger.
Samples taken in this way are essentially undisturbed, since the disturbance
caused by advancing the auger is less than that caused by driving casing (U.S.
EPA, 1987a). Cuttings brought to the surface by the auger may also be
sampled, although as disturbed samples, cuttings only provide an
approximation of subsurface stratigraphy.
Auger drilling is usually limited to depths of approximately 150 feet (U.S.
EPA, 1986a) in unconsolidated sands, and can "bind up" at shallower depths in
clays. Hollow-stem augers are generally not used in formations with large
boulders; however, small obstructions can often be moved or broken by hitting
with a split spoon. Hollow-stem augers are also useful in drilling below the
water table; the auger flights act as a casing in which the well may be placed.
In heaving or flowing sand conditions, a fluid of known chemical quality
(usually water) may be pumped down the inside of the hollow-stem auger, the
weight of which produces a positive pressure head that may be sufficient to
displace unconsolidated material from the auger. Hollow-stem augers should
not, however, be used to drill through a confining layer unless the overlying
aquifer is known to be uncontaminated. Unless a confined aquifer can be
properly cased off (see Section C 1.2.1), contaminated aquifers may
communicate with (contaminate) lower stratigraphic units.
Solid-stem The use of solid-stem augers (Figure C-l) for monitoring well installation is
Augers generally limited to unconsolidated materials that will maintain an open
borehole or consolidated sediments (unless casing is used to prevent caving in
unstable soil when the auger is removed). The method is similar to hollow-
stem augers except that the augers must be removed from the ground to
sample, or to insert the well casing and screen. Solid-stem augers may be
advanced to a depth of 100 to 150 feet, depending on soil conditions. As with
hollow-stem augers, solid-stem augers transport disturbed soil samples to the
surface with the auger blade, and should not be used to drill through confining
layers without first casing off the overlying aquifer.
Mud and Water
Rotary
In rotary drilling, the borehole is advanced by rapid rotation of the drilling bit
which cuts, chips, and grinds the material at the bottom of the hole. The
cuttings are removed by pumping drilling fluid (mud or water) down through
the drill rods, out vents in the bit, and up the annular space between the
borehole wall and drill rods (see Figure C-2). The drilling fluid also cools and
lubricates the drilling bit, and serves to stabilize the borehole. Drilling fluid is
pumped from a pit or tank, through a mud pump and the drill rods. The fluid
returns to a settling pit, where the cuttings settle out from the slowed drilling
fluid. The settling pit may contain several gates or divisions to enhance
separation. The cuttings are periodically removed from the settling pit for
disposal, and to lessen cross contamination from reintroduction of drilling
fluids into the borehole. (In addition, efficient removal of cuttings also
extends the service life of the drill rig mud pump.)
C-7
-------
Figure C-l. Augers
Double-Flight Earth Rock Auger
Hollow Stem Auger Assembly
High-Spiral Auger
C-8
-------
Figure C-2. Mud and Water Rotary Drilling
Swive I
Kelly
Power unit
Controls
Sheave
Crown block
Mast
Hoisting drum
Mud pump
Hose
•*-^J
H
•
1
1 — •" '| ^ .»— -Drilling fluid
Return ditch * ' **
Stttling pit ^*^
Mud pit
« Bit
C-9
-------
Air Rotary Air rotary drilling operates in the same manner as mud or water rotary
drilling, except air is the drilling fluid. Air rotary drilling is best suited for
use in hard rock formations; casing is required to keep the borehole open when
drilling in soft, unconsolidated formations. Because air is used as the drilling
fluid, an important advantage of using air rotary drilling with proper well
development is that it is less likely to affect the long-term quality of the
ground water. In addition, since formation water is blown out of the hole
along with cuttings, it is possible to determine when the first water-bearing
zone is encountered. Where significant water inflow is encountered,
noncontaminating foaming agents (such as nonphosphate detergents) may be
added to help remove cuttings from the borehole (U.S. EPA, 1987a).
Formation sampling may be accomplished by collecting cuttings blown to the
surface, or by removing the drill string and sampling the hole directly. One
problem with air rotary drilling is that the forced air will strip volatiles and
many semi-volatiles. Indeed, air rotary drilling can present significant health
and safety problems because contaminated air and cuttings blown out of the
hole can be difficult to contain. Therefore, when air rotary is used, shrouds,
canopies, or directional pipes should be used to contain and direct drill
cuttings (U.S. EPA, 1986a). In addition, cuttings should not be sampled for
chemical analysis, and the well should be properly developed before sampling.
(As with other types of drilling, generally a confined aquifer should be cased
off; see Section C.2,1.)
Cable Tool Cable tool drilling (or percussion or churn drilling) uses a heavy, solid steel,
chisel-type drill bit suspended on a steel cable that, when raised and dropped
repeatedly, chisels or pounds a hole through soil and rock (see Figure C-3).
Although relatively slow, cable tool drilling is satisfactory for all formations,
but is best suited for large, caving, gravel-type formations with cobbles or
boulders such as glacial till, or for formations with large cavities above the
water table such as karst (weathered limestone) terrain. Casing following the
drill bit is needed when advancing a borehole through these formations and
other unconsolidated materials to prevent cave-in.
Small amounts of water must be added to the hole as drilling progresses until
ground water is encountered. The added water creates a slurry, which is
periodically removed with a sand bailer or mud pump. Because only small
amounts of water are required for cuttings removal (and no drilling muds are
used), the cable tool method generates only modest amounts of drilling waste.
Cable tool drilling also permits the collection of excellent (undisturbed)
formation and chemical samples. Sampling is accomplished by removing the
drill string, bailing the cuttings, and using the appropriate downhole sampler.
(See Section B.2.5 on subsurface sampling techniques).
Drilling Fluid
Drilling fluids are used for a variety of drilling methods and for a variety of
purposes. These fluids are used to cool the drill bit in rotary drilling, help
carry away drill cuttings in rotary and cable tool drilling, and keep the
borehole open in certain mud or water rotary drilling and hollow-stem auger
conditions. Drilling fluids for ground-water monitoring installation include
water, drilling mud additives, air, and foaming solutions. The exact drilling
fluid selection and proportioning will depend on the particular drilling method
and site stratigraphy. For example, in mud rotary drilling, a satisfactory
drilling fluid may be made by mixing water with suitable native clays (for
C-10
-------
Figure C-3. Cable Tool String Assembly Components
Crown
sheave
Shock
absorber
Casing and sand
. line sheaves
Casing reelJ <- Crank shaft
Tool
guide
Ohlling
cable
Swivel
socket
Onll
stem
C-ll
-------
example, downhole) or commercial mud-forming products, consisting
primarily of bentonite and various chemicals added to control dispersion,
thixotropy, viscosity, and gel strength.
Regardless of the type of drilling fluid used, it is important that the drilling
fluid does not affect the chemistry of ground-water samples, samples from the
borehole, or the operation of the well. Only those drilling fluids approved in
the Work Plan should be used. For air rotary drilling, the air from the
compressor on the drill rig should be filtered to prevent oil from the
compressor from entering the borehole. Drilling water or mud should be
uncontaminated. (For instance, "city" water is preferable to surface waters of
uncertain purity). If there is any doubt about its purity, drilling water or mud
should be collected at the plumbing connection on the back of the drill rig and
analyzed to eliminate the possibility of introducing contamination into the
borehole. In addition, drilling muds may be lost to permeable or cavernous
formations, potentially reducing effective porosity (and thereby well yield), as
well as affecting local ground-water pH. Judicious selection of drilling mud
additives and proper well completion and development can significantly lessen
adverse effects of mud invasion into a formation.
Drilling Waste
One important aspect of oversight of drilling activities is management of
drilling waste. Drilling waste consists of drill cuttings and materials removed
from a borehole, including drilling fluids and well development water.
Whether the drilling waste is known to be contaminated or not, native soils and
waters should not be returned to the borehole (see Section C.3.1 for proper
well completion procedures). In addition, if drilling fluids were used to
advance a borehole through a contaminated horizon, the drilling fluid should
be disposed appropriately as waste and replaced with clean drilling fluid
before proceeding through cleaner zones (see Section C.2.1, Reducing Spread
of Contamination).
Unless otherwise specified in the Work Plan, waste from drilling activities
should be containerized (drummed) for proper disposal. Depending on the
methods specified in the Work Plan, drilling waste may be stored onsite,
pending the results of waste material sampling, surveyed using field analytical
methods as described in Section B.2.8, or disposed as hazardous. Alternatively,
if the drilling waste material is from a stratigraphic zone subject to removal
and treatment, the waste may be stored pending the remedial action, subject to
RPM approval.
Reducing
Spread of
Contamination
It is important during drilling activities to reduce the spread of contamination
both at the well head and between stratigraphic layers. Reducing the spread
of contamination at the well head involves properly managing contaminated
drilling wastes; that is, containerizing for disposal drilling wastes suspected of
contamination. In addition, drilling wastes can be directed and contained with
directional pipes, and dedicated open tanks or lined pits can be used for
drilling mud/cuttings to further reduce the spread of contamination.
Reducing subsurface spread of contamination requires good drilling practices
to keep contaminated horizons (particularly aquifers) from contaminating
lower stratigraphic layers. Specifically, this may involve casing off a borehole
before continuing to drill through a confining layer, and disposing and
replacing drilling fluids that have been used to advance the borehole through a
contaminated horizon. Casing off a borehole consists of grouting the annular
C-12
-------
C.2.2
space between the casing and the borehole sidewalls (see Section C.3.1).
Casing off upper aquifers before further drilling is good drilling practice, even
if the upper aquifer is known to be uncontaminated. (An exception is non-
discrete aquifers or water-bearing zones of similar or compatible chemistry.)
Soil Sample Collection
Soil samples are collected in conjunction with borehole advancement for
lithologic description, chemical analysis, or physical testing. While a number
of physical and chemical samples must be sent for laboratory analysis, most
can be screened and logged in the field.
Collection During borehole advancement, formation samples are typically collected every
Interval 5 feet or when a change in stratigraphy is observed. (PRPs may be required to
submit continuous samples, however.) Each geologic unit encountered should
be sampled for lithology because of the effect a unit may have on contaminant
fate and transport. Soil samples for chemical analysis should be collected in
accordance with the objectives of the Work Plan and SAP.
Sample Field
Screening and
Logging
Geological logging includes keeping a detailed record of drilling and a
geological description of the materials encountered on a prepared form.
Although field screening and logging in conjunction with well drilling
activities is the responsibility of the PRP or its drillers, the oversight assistant
should note the salient information regarding screening and logging, such as
soil color, moisture, and consistency, as a check on the PRP's drilling log.
When drilling in soils or unconsolidated deposits, the PRP will usually record
soil screening information on a standard soil boring log form (see Figure C-4).
The soil boring log form to be used by the PRP should be submitted with the
Work Plan and approved prior to conducting field work. In addition to basic
information such as boring number and location, drilling equipment and
method, and time and date, the PRP should record the following technical
information for samples collected for physical testing or chemical analysis:
• Depth of sample below surface;
• Sample interval;
• Sample type and number;
• Length of sample recovered;
• Standard penetration test (ASTM-D1586) results, if applicable; and
• Soil description and classification.
In addition, all pertinent observations about drilling rate, equipment operation,
or unusual conditions should be noted (U.S. EPA, 1987a).
Soil description and classification is normally done in accordance with the
United Soil Classification System (USCS), as described in ASTM D2487 (see
Figure C-5), the Visual-Manual identification procedure (ASTM D2488), or
C-13
-------
Figure C-4. Soil Boring Log
SHEET of
SOIL BORING LOG
PROJECT
. VOCATION
ELEVATION
OP-ILUNG CONTRACTOR ,
DRILLING MITMOO AND EQUIPMENT .
WATER LEVEL AND 0/TE .
51AHT
. flNISH
.LOGCt" .
:>t
t°S
lii
-
tAMM.1
IMTCRVAL
TVPE AND
NUMBER
V
I
IU
$
1 ifAnfiAAO
PINCTWATION
T|»T
M1LH.T1
«•-«•••«-
INI
SOIL OUC«I»TION
NAMC. G«AOATION o« PLASTICITY
PAHTICLE SIZE OlSTBlBUTION COLO".
MOISTUCt CONTENT RELATIVE DENSITY
OR CONSISTENCY SOIL STBUCTUM.
MINERALOGY USCS GROUP SYMBOL
-
h
COMMINTS
DEPTH o* CASINO
ORILLiNG RATE
OSlLLINGfLUlOLOSS.
TESTS ANO
INSTRUMENTATION
-
C-14
-------
SoN Classification Chart
o
I
Criteria lor Assigning Group Symbols and Group Names Using Laboratory Tests'*
Coarse Grained Softs
More than 50 X retained on No.
200 sieve
Fins-Grained Sots
50 X or more panel the No.
200 stove
HtoWy organic sols
Gravels
More than 50 X ol coarse
fraction retained on No. 4
stove
Sands
50 X or more of coarse
traction pastes No. 4 stove
Sets and Clays
UquU fen* toes than SO
SMs and Clays
Liquid fen* 50 or more
Clean Gravels
Less than 5 X fines0
Gravels with Fines More
than 12Xtrwsc
Clean Sands
Less than 5 X fines0
Sands with Fines
More than 12 X Ones0
Inorganic
organic
Inorganic
organic
Cu a 4 and 1 s Cc < 3f
Cu < 4 and/or 1 > Cc> 3£
Fines classify as ML or MH
Fines classify as CL or CH
Cui6and1sCcs3'
Cu < 6 and/or 1 > Cc> 3E
Fines classify as ML or MH
Fines classify as CL or CH
PI > 7 and plots on or above 'A' few'
Pl< 4 or plots below 'A' few'
Liquid fenrl - oven dried
Liquid fenM - not dried < ° 75
PI plots on or above 'A' few
PI plots below 'A' few
Liquid fenH - oven dried
Liquid Imtt - not dried
Primarily organic matter, dark In color, and organic odor
Grc
Syn
GW
GP
GM
GC
SW
SP
SM
SC
CL
ML
OL
CH
MH
OH
PT
Soil Classification
Wei graded oravel'
Poorly graded gravel
SHy gravel'-0"-
Clayey gravel'-0-"
Wel^raded sand
Poorty graded sand'
SMty sand°-"-J
Clayey sand0 •"•'
Lean day"-1-"'
SIM "i"
Organic day"-1-"'-"'
Oroanlc silf" •«• •" °
Fat day" -1 "
Elastic set"-1-*'
Organic day* l "•'
Oroanlc silt" Lua
Peal
* Baaed on *w material pasakig tie 3-ln. (75-mm)
Cu -
• M Md sample contained cobbles or boulders, or
both, add 'witti cobbles or boulders, or both' to
group name.
c Gravels wMti 6 to 12 X tnes raquka dual
symbols:
QW-GM wet-graded gravel wNh sM
QWM3C wet-graded gravel wWi day
OP-GM poorly graded gravel wMh sH
GP-GC poorly graded gravel w«h day
"Sands wtth 5 to 12X tnes require dual
symbols:
SW SM wet-graded sand wtth sK
SW-SC wet-graded sand with day
SP-SM poorty graded sand wMh a*
SP-SC poorty graded sand wf»t day
(°*f
OIO x DM
' H sol contains * 15 X sand, add 'with sand' to
group name.
°H lines classify as CL-ML. use dual symbol
GC-GM. or SC-SM.
MM lines are organic, add 'with Organic Unas' to
group name. : ,'•
'M sol contains £ 15 X gravel, add 'with gravel'
to group name.
-'H Anerberg fenrU plot In hatched area, sol to a
CL-ML. stty day.
" N sol contains 15 to 29 X plus No 200. add
•wHh sand' or *wMh gravel.' whichever to pre-
duii^i^aiil.
1K sol contains i 30 X plus No 200. pre-
domlneneV sand, add 'sandy' to group name.
MII soil contains a 30 X phis No 200.
domlnantty gravel, add 'gravety' to group name.
" PI z 4 and plots on or above 'A' few.
0 P1< 4 or plots below 'A' few.
* PI plots on or above 'A' few.
0 PI plots below 'A' few.
21
oS'
c
-i
n
O
O
o
O
n
09
-------
by the Burmeister system. Although it is not necessary for the oversight
assistant to be thoroughly familiar with these soil description methods, the
oversight assistant should nevertheless note major soil differences (such as
clays, sands, and gravels) during formation sampling. The oversight assistant
should also note the basic color, moisture content (described as dry, moist, or
wet), and relative density or consistency of the soil as determined by standard
penetration tests (see Table G-2).
The purpose of noting basic soil properties, from an oversight perspective, is
not to duplicate the PRP's drilling log. Rather, basic soil properties can
provide direct evidence of contamination, unanticipated or perched aquifers,
and confining layers. For example, soil discoloration may indicate
contamination, whereas wet soil may indicate the presence of an aquifer.
Additionally, clay encountered beneath an aquifer, as determined by visual
inspection, would suggest the presence of a confining layer. As indicated in
Section C.2.1, it is generally good practice to case off the borehole before
drilling through a confining layer.
C.2.3
Decontamination
Two general methods of contamination control are: (1) establishing site work
zones (site control), and (2) removal and decontamination. These methods are
essential for maintaining health and safety as well as for preventing cross-
contamination. Decontamination consists of either physically removing
contaminants or changing their chemical nature to innocuous substances. The
level of decontamination depends on a number of factors, the most important
being the type of contaminants involved and the use of the equipment being
cleaned. The more harmful the contaminant and the more directly the
equipment contacts the sample, the more extensive and thorough
decontamination must be.
Equipment A variety of equipment and materials are suitable for decontamination of
drilling and personnel protection equipment. Decontamination equipment is
generally selected based on availability, ease of equipment decontamination,
and disposability. Typical decontamination equipment includes high-pressure
steam generators ("steam jenny"); soft-bristle scrub brushes or long-handle
brushes to remove contaminants; water in buckets or garden sprayers, for
rinsing; large galvanized wash tubs, stock tanks, or children's wading pools to
hold wash and rinse solutions; large plastic garbage cans or other similar
containers lined with plastic bags to store contaminated clothing and
equipment; metal or plastic cans or drums to temporarily store contaminated
liquids; and other miscellaneous gear such as paper or cloth towels for drying
protective clothing and equipment.
Method
Personnel protective equipment, sampling tools, and other equipment are
usually decontaminated by spraying with high-pressure steam, or scrubbing
with detergent-water such as Alconox, using a soft-bristle brush, followed by
rinsing with copious amounts of water. Drilling equipment (particularly the
back and undercarriage of the drill rig and all downhole equipment) can be
cleaned using a pressure hose or pressurized water or stream sprayer. Steam
jennies are very effective at removing dirt and oils while generating minimal
waste water. Special attention should be paid to the wheel wells and
undercarriage of drilling rigs and other equipment, where large amounts of
C-16
-------
Table C-2a. Soil Density\Consistency
Blows/Ft
Relative Density of Noncohesive Soil
Relative
Density
Field Test
0-4 Very loose Easily penetrated with 1/2-inch steel rod pushed by hand
5-10 Loose Easily penetrated with 1/2-inch steel rod pushed by hand
11-30 Medium Easily penetrated with 1/2-inch steel rod driven with 5-lb
hammer
31-50 Dense Penetrated a foot with 1/2-inch steel rod driven with 5-lb
hammer
>50 Very dense Penetrated only a few inches with 1/2-inch steel rod driven
with 5-lb hammer
Table C-2b. Consistency of Cohesive Soil
Blows/Ft Consistency
Pocket
Penetrometer
(TSF)*
Torvane
(TSF)
Field Test
<2
2-4
5-8
Very soft
Soft
Firm
9-15 Stiff
16-30 Very stiff
<0.25
0.25-0.6
0.50-1.0
>30
Hard
1.0-2.0
2.0-4.0
>4.0
<0.12 Easily penetrated several
inches by fist
0.12-0.25 Easily penetrated several
inches by thumb
0.25-0.5 Can be penetrated several
inches by thumb with
moderate effort
0.5-1.0 Readily indented by
thumb but penetrated
only with great effort
1.0-2.0 Readily indented by
thumbnail
>2.0 Indented with difficulty
by thumbnail
* TSF--Tons per square foot.
C-17
-------
mud tend to accumulate. Sampling equipment used for organic contaminant
samples should be rinsed with methanol or other suitable solvent, followed by
distilled water. (Hexane is often used for PCB contamination.) The solvent
should be saved for safe disposal (IT, 1987). Sampling equipment used for
metal-containing samples should be rinsed with dilute nitric or hydrochloric
acid, followed by distilled water.
Location
Location of decontamination areas depends on site-specific establishment of
zones of decreasing contamination and site access control points. Essentially,
the site is divided into three zones to reduce the migration of contaminants
from the sampling area: (1) the exclusion zone, which is the area of the site
where contamination does or could occur (including the borehole); (2) the
contamination reduction zone, which provides a transition between
contaminated and clean zones; and (3) the clean zone. Decontamination areas
are located at the boundary between the exclusion and contamination reduction
zones.
The size and shape of each zone (and thus the distance from drilling activities)
is based on site-specific conditions. The oversight assistant should recognize
that considerable judgment is needed to assure that the distances between zone
boundaries are large enough to allow room for the necessary operations,
provide adequate distance to prevent the spread of contaminants, and eliminate
the possibility of injury due to explosion or fire outside the exclusion zone.
The criteria used for establishing area dimensions and boundaries include but
are not limited to, the following:
• Physical and topographical site features;
• Weather conditions;
• Air dispersion calculations;
• Contaminant toxicological characteristics; and
• Dimensions of the contaminated area.
Frequency Downhole drilling equipment should be decontaminated between each borehole
location, while sampling equipment should be decontaminated before each use.
In the case where drilling fluid used to advance a borehole through a very
contaminated horizon is disposed, the mud tank or pit, mud pump, and all
downhole equipment should be decontaminated before the addition of fresh
drilling fluid. Some equipment (such as gloves) may be disposable and,
therefore, will not require decontamination.
Cross
Contamination
Prevention
The most effective method of preventing cross-contamination is to thoroughly
decontaminate drilling and formation sampling equipment before each use.
For downhole drilling equipment, this consists of decontamination between
borehole locations, whereas sampling equipment should be decontaminated
between sampling locations. Another method of preventing cross-
contamination, if practical, is to drill the boreholes in formations of low
contamination first (such as upgradient locations), proceeding to progressively
more contaminated locations. (To prevent contamination due to borehole
C-18
-------
sidewall sloughing and contamination between stratigraphic layers, see Section
C.2.1.)
Off-site Generally, decontamination solutions and contaminated drill cuttings, drilling
Disposal fluids, and material classified as a hazardous waste must be manifested for
disposal and taken to a licensed hazardous waste disposer. Since this policy
differs from region to region (U.S. EPA, 1986d), the oversight assistants
should be familiar with the applicable requirements. However, offsite disposal
methods should be detailed in the drilling team's Work Plan and HSP and
should be approved by the RPM.
All equipment that cannot be decontaminated, and any spent decontamination
solutions, must be disposed of in accordance with applicable regulations.
Clothing, tools, brushes, and other sampling equipment that cannot be
decontaminated should be secured in drums or other containers, and either
labeled and shipped offsite for disposal, or disposed of as a part of any
planned remedial activity. Likewise, spent decontamination solutions should
be transferred to drums that are labeled prior to disposal. Clothing and other
equipment that will be decontaminated offsite should be secured in plastic
bags before removal from the site.
C.3 WELL DESIGN AND INSTALLATION
Once the well borehole has been advanced to the appropriate depth, as
specified in the Work Plan, SAP, or drilling specifications, the ground-water
monitoring well is installed. Well design and installation consists of selecting
and installing construction materials that are durable enough to resist chemical
and physical degradation and do not interfere with the quality of groundwater
sampling. In addition, well design and installation must prevent contaminant
migration between strata.
Specific well components involved in well design and installation include well
casings, well screens, filter packs, and annular seals or backfills. Figure C-6
illustrates the design of a typical groundwater monitoring well. Competent
well design, materials selection, and well installation and completion are
essential to achieving the goals of a ground-water monitoring program.
C.3.1 Well Design
Well design consists of selecting suitable materials for well construction,
including well screens, well risers, and annular space sealants. The well
materials must not degrade, absorb contaminants, or otherwise interfere with
ground-water quality while in service. In addition, the specified materials
must be designed to seal the borehole such that contaminated soil horizons
cannot communicate with other horizons.
Well Screen Well screen selection is important for collecting representative ground-water
samples. A well screen allows water to enter a well, and also acts in
conjunction with the sand or filter pack as a filtering device to keep sediment
out of a well. (Sediment-laden water can lengthen filtering times and create
chemical interferences with collected samples.) Normally, the open area of the
screen should approximate the natural porosity of the formation.
C-19
-------
Figure C-6. Typical ground-water monitoring well cross-section
GAS VENT TUBE
14" GAS VENT
WELL CAP
STEEL PROTECTOR CAP WITH LOCKS
SURVEYOR'S PIN (FLUSH MOUNT)
CONCRETE WELL APRON
(MINIMUM RADIUS Of 3 FEET
ANO 4 INCHES THICK)
CONTINUOUS POUR CONCRETE CAP
ANO WELL APRON (EXPANDING CEMENT)
CEMENT ANO SODIUM
8ENTONITE MIXTURE
WELL DIAMETER-4"
BOREHOLE DIAMETER - 10" TO 12"
(NOMINAL DIMENSION)
ANNULAR SEALANT
FILTER PACK (2 FEET OR
LESS ABOVE SCREEN)
POTENTIOMETRIC SURFACE
C-20
-------
Screen slot openings should retain a high percentage of the sand or filter pack
and be uniformly distributed around the circumference of the screen for
effective development of the well. Ideally, slot openings should widen inward
so that finer formation materials are pulled through the screen during
development. Slots that are cut straight through the casing, or those of the
gauze type, will tend to plug with fine material during development,
significantly reducing the open area of the screen.
Commercially manufactured well screens typically work best provided the
proper slot size is chosen. Generally, customized screens should not be used
because these screens limit reproducibility of ground-water data. In addition,
the oversight assistant should be aware that most EPA regions prohibit the use
of screens containing slot openings sawed or torch-cut by the driller.
The oversight assistant should recognize that well screen length is a function of
both the transmissivity (yield) of the aquifer and the objective of the
monitoring program. Low-yield aquifers may require greater screen lengths to
permit the collection of adequate sample volumes in a timely manner. Screens
used for sampling discrete intervals are typically 2 to 5 feet in length. Screens
that monitor to the top of the water table are typically 5 to 10 feet in length.
Depending on the anticipated long-term changes in ground-water elevation,
some of the screen is always above the water table. Thus, the screen will allow
hydrocarbons or other low-density substances that float on the surface of the
water ("floaters") to enter the well.
The oversight assistant may also observe the installation of a sump at the
bottom of a monitoring well. A sump aids in collecting fine-grain sediments
and results in prolonging the operating life of the screen. An additional
benefit of using a sump is for collection of intermittent dense-phase
contaminants ("sinkers"). A sump may also be used as a sampling cup in low-
yield aquifers.
Well Riser Well risers are lengths of well casing that are joined together rising from the
well screen to the surface. The oversight assistant should note that the method
of joining screens to casing and of assembling the well string (screens and
casing) is done so as to prevent contamination of the samples. That is, glue,
solvents, or lubricant are not to be used. Clean screens and casing should be
joined mechanically by threads and couplings, or flush threads. Joints may be
made water-tight by wrapping with Teflon tape or by placing an O-ring in the
joint.
A gas vent at the top of the well string is generally specified in the Work Plan,
SAP, or drilling specifications. Typically, a vent is installed by drilling a hole
or cutting a slit with a hacksaw in the uppermost well riser. The vent
equalizes pressure in the well when the ground-water level changes. For
example, a drop in the water table would create a partial vacuum in a well
without a vent, making the removal of a slip cap very difficult. Conversely,
as a rise in the ground-water level could produce a puff of well vapors upon
removal of the well cap, well vent installation represents a good safety
practice.
Annular Space
Once the well string has been installed, the annular space should be a
minimum of 2 inches completely around the inner casing. The space is then
backfilled with: (1) filter pack over the screened interval, (2) annular sealant to
C-21
-------
prevent migration of contaminants to the sampling zone, and (3) cement or
bentonite grout to the frost line. Before installation of the well string, filter
pack may be added to the borehole to adjust the final elevation of the well and
the screened interval. Drill cuttings should not be used to backfill the annular
space. As the annular space is backfilled a few feet at a time, any temporary
drilling casing is removed, allowing the backfill to completely occupy the
annular space.
Generally, filter pack is selected to roughly match the grain-size distribution
of the screened interval formation. (The grain-size distribution curve for the
filter pack is obtained by multiplying the 70-percent retained size of the finest
formation sample by three or four.) Selection of too fine a pack reduces the
yield of the well, causing longer sampling times, whereas selection of too
coarse a pack allows fine silts, sands, and clays to enter the well. Coarse
gravel and coarse sand are common filter pack materials. The oversight
assistant should note that the pack material is chemically inert (non-
carbonate), and has been obtained from reputable suppliers who have properly
cleaned and bagged the material. Fabric filters should not be used as filter
pack materials. Generally, filter pack is not washed or decontaminated before
placement, although some investigators may require it. (The PRP may wish to
collect and chemically analyze a sample of the filter pack in the event
questions are raised regarding possible contamination from the pack.)
Filter pack is added to the annulus a few feet at a time. If the screened
interval is entirely beneath the water table, the use of a tremie tube in placing
the filter pack is recommended. If temporary drilling casing has been used to
keep the borehole open, it is removed with each addition of filter pack,
permitting the pack to completely fill the borehole. Failure to remove casing
in a timely manner may bury it in place, rendering the well useless without
subsequent removal of the well string and filter pack. Filter pack should
generally be added until it is 2 feet or less above the screen (U.S. EPA, 1986a).
The filter pack must cover the entire screen, even if substantial amounts of
pack are lost to cracks or voids in the formation. Thus, the actual amount of
filter pack required may exceed the amount calculated to cover the screen.
Conversely, if substantially less than the calculated amount of pack appears to
cover the screen, bridging or borehole cave-in has probably occurred. Unless
specified in the Work Plan and screened as such, the filter pack should
generally not extend into a different overlying layer in the formation because
this would permit seepage (and sampling) of different horizons. Each backfill
horizon should be confirmed in the field with a tape measure.
The oversight assistant should observe the placement of approximately 2 feet
of annular sealant above the filter pack. The annular sealant should prevent
migration of contaminants to the sampling zone. The sealant should be
chemically inert and have a permeability 10 to 100 times less than the
surrounding formation. Generally, sodium bentonite pellets are placed
immediately over the filter pack -- especially in the saturated zone. Pellets
are most effective in the saturated zone because they will penetrate the water
column; coarse grit sodium bentonite may hydrate and bridge before reaching
the filter pack.
Although either bentonite or cement grout may be used to seal the annular
space just below the frost line, cement grout should generally be used in the
unsatu'rated zone above the annular sealant because the grout is less subject to
cracking. Often, bentonite is added in the amount of 2 to 5 percent by weight
C-22
-------
to the cement grout to help reduce shrinkage and to control the time of setting.
The oversight assistant should ensure that the grout is prepared using clean
water and, if necessary, placed in the borehole using a tremie pipe. Use of a
tremie pipe minimizes particle separation and bridging, and ensures good
sealing of the borehole from the bottom.
C.3.2
Well Installation
The major elements of well installation consist of:
• Well screen and casing installation;
• Filter pack placement; and
• Annular sealant placerrent.
To prevent contamination of ground-water samples, suitable well materials
must be selected. In addition, all materials placed in the borehole must be
clean and free of contamination.
Method of Ground-water monitoring wells may be installed in open boreholes in
Well consolidated formations, or inside casing or hollow-stem augers in
Completion unconsolidated formations. In either case, the oversight assistant should note a
spacing differential of 2 to 5 inches between the outer diameter of the well
casing and the inner diameter of the auger/casing or the surface of the
borehole. This annular space is necessary to ensure an adequate volume and
proper placement of filter pack and annular sealants. A smaller annular space
may result in a filter pack volume insufficient to prevent turbid and
unacceptable ground-water samples, or may lead to bridging of filter pack and
annular sealants, resulting in open spaces in the borehole that could allow
migration of contaminants between strata. See Section C.3.2 for information
on the calculated (and actual) volume of filter pack and sealant required.
Well Material
A variety of materials may be used for well screens and risers (well casing),
including polyvinyl chloride (PVC), polypropylene, mild or galvanized steel,
stainless steel, cast iron, teflon, other fluorocarbons (such as fluorinated
ethylene propylene (FEP)), epoxy biphenyl, and polyethylene. The oversight
assistant should make sure that the well screens and casing used are consistent
with those specified the Work Plan. The oversight assistant should also be
aware, however, that the type of material used for monitoring well casing may
significantly affect the quality of ground-water samples. Steel casing may
corrode, leaching iron, manganese, chromium, cadmium, or zinc. PVC,
polyethylene, and polypropylene may release and absorb trace amounts of
various organic constituents. In addition, solvent cement should not be used to
attach sections of plastic casing because it has been shown to release
significant quantities of organic compounds.
In general, the following factors should be considered when selecting screen
and casing materials:
• Contaminants to be sampled;
• Chemical reactivity/inertness;
C-23
-------
• Strength of material; and
• Ease of installation.
Generally, in the saturated zone, only inert (or noninterfering) materials
should be used; in the unsaturated zone noninert materials may be used (U.S.
EPA, 1986a). Teflon and glass are among the most inert materials for
monitoring well installation. (However, glass is very difficult and expensive to
use under most field conditions, and non-stick teflon may not form a water-
tight seal with grout and annular sealants.) When monitoring for volatile
organics, teflon (fluorocarbons), stainless steel, or fiberglass-reinforced plastic
generally are recommended. If trace metals or nonvolatile organics are the
contaminants anticipated, PVC or plastic well casing and screens may be used.
Site-specific conditions, however, may affect well material selection. For
example, low pH may degrade metallic wells. The oversight assistant should
refer to the Work Plan to note if the specified well material is being used.
Regardless of the material used for well construction, the material should be
kept covered and clean. In addition, all well casing and screens should be
clean before construction and placement in the borehole. Material selection
may determine method of decontamination. For example, fluorocarbon casing
should never be steam cleaned (see Section C.2.3 for more information
regarding decontamination).
C.3.3
Well Completion
Once the annular space has been grouted to just below the frost line, the well
is completed by constructing a surface seal and installing a protective surface
casing.
Surface Seal To minimize damage caused by frost heaving, the oversight assistant should
observe that the remaining annular space is sealed with an expanding cement
(grout) cap or surface seal. Frost heaving can be a major problem for wells
installed in cold climates (particularly for plastic wells). As the soil freezes
during the winter, it expands upward, occasionally pulling the casing apart.
The surface seal should extend from below the frost line to the ground surface.
If there is no frost line, or the frost line is essentially at the ground surface,
the cement grout may be poured to the surface in lieu of a surface seal.
Surface
Casing
Before the surface seal has set, a protective metal surface casing should be
placed in the surface seal around the monitoring well. A concrete well apron
should then be poured around the surface casing. The apron should have a
minimum radius of 3 feet and be at least 4 inches thick. In addition, the
apron should be inclined away from the well and surface casing to divert
rainwater. The oversight assistant should note that the concrete well apron is
poured using the same expanding cement as used for the concrete cap. In fact,
with the exception of surface casing placement, the concrete cap and well
apron should be poured continuously.
C-24
-------
C.4 POST INSTALLATION
Post-installation activities consist of well development and ground-water
monitoring. Well development is especially important for ground-water
monitoring wells, because drilling fluid residues remaining in the borehole will
affect the chemistry of the water samples. Well development also removes
sediments and increases the well yield so that representative samples can be
collected quickly. Adequate development must be verified before ground-
water samples may be collected. (Collecting samples from a ground-water well
and measuring ground-water parameters are discussed in Section B.2.2).
C.4.1 Well Development
After the ground-water monitoring well has been constructed, the well must
be developed before sampling to restore the natural hydraulic conductivity of
the formation, and to remove sediments as well as all traces of drilling fluids
from the formation. Well development is accomplished by applying some form
of energy (such as water surging) to the screen and formation. Well
development is confined mainly to the zone immediately adjacent to the well,
where the formation materials have been disturbed by well construction
procedures or affected by the drilling fluid. Noting and managing the volume
of development water is as important as noting the method of well
development.
Method of The oversight assistant should be aware that a variety of techniques are
Development available for well development. Table C-3 lists some common development
procedures. For example, the well may be overpumped (or pumped at a
higher rate than when purged and sampled). However, because overpumping
produces water flow in only one direction, sediments or fines may bridge (or
clog) in the filter pack, restricting flow into the screen. In addition, if
bridging subsequently becomes unstable and collapses, sediment may enter the
well and affect sample quality. Effective well development procedures should
cause reversals of water flow through the screen that will agitate the sediment
and remove the finer fraction.
One widely used method of well development is to force water to flow into
and out of the well screen by operating a plunger up and down in the casing,
similar to a piston in a cylinder. The tool normally used is called a surge
block. Before starting to surge, the oversight assistant should note that the
well has been bailed to make sure water will flow into it.
The surge block is normally lowered beneath the water table, above or at the
top of the screen. The initial surging motion should be gentle, allowing any
material blocking the screen to break up, go into suspension, and then move
into the well. As water begins to move easily both into and out of the screen,
the surge block is lowered in steps, with the force of the surging increasing as
the block is lowered. Development should begin above or at the top of the
screen and move progressively downward to prevent the surge block from
becoming sand-locked. The surge block should periodically be removed from
the well during development, to remove (bail or pump) silt and fines from the
well. Surging and cleaning should continue until little or no sediment can be
pulled into the well (see Section C.4.1, Volume of Development Water).
C-25
-------
Table C-3. Well Development Techniques
Technique
Use
Comments
Surge Block
Block moved up and down, imparting
a surging action to screen and
formation.
Good, non-contaminating technique.
May clog formation, screen, or filter
pack if used when clay streaks, mica,
or angular particles are present.
Air lift
Compressed-air injected into well,
lifting water to surface.
Strips volatiles; must wait 48 hours to
sample. Can induce metallic oxide
formation/precipitation, clogging
formation/pack.
Hydraulic
jetting
High pressure water sprayed inside
screen through jet nozzle.
Normally restricted to production.
For very low yielding wells; water
added to formation must be removed
prior to sampling.
Pumping
Well is pumped until water clears,
then turned off. Repeated with
higher discharge until only clear water
appears.
May lead to bridging, particularly if
done without a swab, or at high
discharge. Usually a finishing
procedure following another
development technique.
Acid1
Hydrochloric acid added to open
borehole in limestone or dolomite
formations to increase formation
porosity (hydrofluoric and may be
used in silicate formations.)
Must return to ambient aquifer pH
before sampling; normally followed
by another development method.
Explosives1
Detonation of explosives in boreholes
in rock formations.
Enlarges borehole. Increases rock
fractures.
Not common for monitoring wells.
C-26
-------
The oversight assistant should be aware that surge blocks sometimes produce
unsatisfactory results in certain formations, especially when the aquifer
contains many clay streaks: surging can cause the clay to plug the formation,
reducing well yield. Surge blocks are also less useful if large amounts of mica
or angular particles are present because they can align themselves
perpendicular to the direction of flow, clogging the well screen or filter pack.
Clogging can be minimized by gentle surging and avoiding overdevelopment
when mica is present in the aquifer (Driscoll, 1987).
Another common method of well development is air lifting or air surging,
although there is considerable controversy as to its appropriateness. In air
surging, air is injected into the well to lift the water to the surface. After the
water reaches the top of the casing, the air supply is shut off, allowing the
water column to fall. The well is periodically pumped (usually by air-lift
pumping) to remove sediment from the well. Air surging is controversial from
an oversight perspective, because it strips volatiles. Samples for volatile
organics should not be collected for at least 48 hours after developing wells by
air surging.
Volume of In addition to developing the well until little or no sediment can be pulled into
Development the well, a sufficient volume of development water should be removed.
Water Specifically, the oversight assistant should note that at least 3 to 5 well
volumes plus the volume of water lost to the formation during drilling are
removed; some regions require the removal of five well volumes. In addition,
if water or acid has been used to develop the well, the well must be developed
until ground-water parameters have returned to ambient conditions. That is,
pH, conductivity, and temperature should be measured. When the parameters
have stabilized (and no sediment enters the well), a sufficient volume of
development water has been removed from the well (it is also good practice to
monitor ground-water parameters as a check on the sufficiency of three to
five well volumes plus water lost to the formation). When developing a well
by air surging, an eductor and discharge pipe may be used to direct and
contain development water. If a discharge pipe is not used or if the aquifer
has an extremely low yield, ground-water parameters may be monitored in lieu
of removing three to five well volumes during development.
Management Management of development water should be detailed in the Work Plan, SAP,
of Develop- or drilling specifications. Generally, development water should be
ment Water containerized for analysis and disposal if classified as a hazardous waste. If
large volumes of contaminated development water are anticipated, the water
may be treated onsite, depending on the nature and expected concentration of
the contaminants. For example, a granulated-activated charcoal filter may be
used to strip development water of organics, allowing development water to be
discharged (assuming organics are the only type of contamination). Such
treatment would require laboratory support to monitor effectiveness and
proper filter disposal. Alternatively,.contaminated development water may be
pumped to a treatment plant, or to the ground for percolation/recharge with
RPM approval. The oversight assistant should consult Section C.2.1, Drilling
Waste, for more information regarding management of development water.
C.4.2
Ground-Water Sampling
Once the well has been properly developed, samples may be collected.
C-27
-------
Collecting samples from a ground-water well and measuring groundwater
parameters are discussed in Section B 1.2.2. If, after development of the well is
complete, it continues to yield turbid ground water (that is, greater than 5
nephelometric turbidity units), the well should be redeveloped. If after
redevelopment, the well still yields turbid ground water containing no
organics, and the turbidity is due primarily to silt and clay, the well may have
been improperly constructed (or developed), and may be unsuitable for
ground-water monitoring (U.S. EPA, 1986b). Alternatively, the silt or clay
unit may be low yielding.
C.5 DOCUMENTATION OF WELL DRILLING AND INSTALLATION ACTIVITIES
The oversight assistant is responsible for the documentation of field activities,
including but not limited to well drilling and installation. Recordkeeping
practices should include documenting the day's activities in a field logbook or
on the field activity report as well as maintaining a photographic/video record
of events. In addition, documentation may be used during litigation to verify
the quality of the data collected. Therefore, it is essential that the oversight
team keep detailed records of field activities, and thoroughly review all notes
to verify that they are accurate before leaving the site.
C.S.I Oversight Team Field Activity Report/Logbook
The oversight team field activity report" and logbook provide daily records of
significant events, observations, and measurements during field oversight. The
field activity report and field logbook should provide sufficient data and
observations to enable the oversight team to reconstruct events that occurred
during well drilling and installation and to refresh the memory of oversight
assistants if called upon to give testimony during legal proceedings'. Because
oversight field records (if referred to and admitted as evidence in a legal
proceeding) are subject to cross examination, checklist and logbook entries
should be factual, detailed, and objective.
The field activity report may be used in conjunction with the field logbook, or
not at all. The advantage of the field activity report is a consistent method of
documentation for all well drilling and installation activities. The field
activity report may be used to augment or complement the field logbook.
The field activity report is a tool that has been developed specifically to assist
the oversight assistant in the field. This report is in a checklist format, which
is structured to remind the oversight assistant of the critical elements of the
well drilling and installation activities while also providing a convenient means
for documenting the field activities. The field activity report is used in
conjunction with the SAP as a tool for reminding the oversight assistant of the
specific planned activities, and for keeping a record of any activities that are
not conducted according to the plans or that the oversight assistant considers
noteworthy.
The well drilling and installation field activity report consists of five sections,
including:
• Cover sheet;
• Initial activities;
C-28
-------
• Method of borehole advancement;
• Monitoring well construction and design; and
• Post-installation activities.
The field activity report cover sheet provides a format for documenting facts
concerning the general types of activities planned for the day, the personnel
present onsite, the general conditions at the site (such as weather), and any
changes ia the plans for that particular day. A separate cover sheet is filled
out for each day.
The initial activities section of the report provides a checklist of activities that
the oversight assistant can use before arriving at the site to prepare for field
oversight. This section also outlines preliminary activities that the oversight
assistant should conduct at the site before well drilling. The method of
borehole advancement section includes drilling activities as well as soil sample
collection and decontamination methods. The section on monitoring well
construction and design details the materials used for well construction and
completion. The filial section outlines well development and ground-water
monitoring.
The field activity report is structured so that individual sections can stand
alone and the oversight assistant can select the sections he is concerned with
for a particular trip or day onsite. For example, if the only activity planned
for a trip is drilling, the oversight assistant can remove the borehole
advancement section from the field activity report and bring only the drilling
section to the field.
The oversight assistant should transfer important information from the SAP or
drilling specifications to the field activity report form (using the "comments"
space) before leaving for the site. The assistant should then use the form to
compare the planned activities or expected conditions with the actual events in
the field (using the "Consistent With Plan" space) while at the site. Activity
reports should subsequently be summarized into a progress report for RPM
review. In addition, copies of the logbook or the field activity report should
be made available for RPM review.
C.5.2 Oversight Team Photographic/Video Log
The oversight team should document some of the more critical field activities
with a photographic or video camera. If a Polaroid camera is used for this
purpose, the photographed activity, location, date, and time should be
recorded directly on the photograph. If film must be sent out for
development, the pertinent information should be recorded in the field
logbook by exposure number, preferably in the order the pictures were taken.
Because a camera exposure number may not exactly correspond with the film
exposure, maintaining a separate sequential photograph log as part of the field
logbook may help prevent confusion when matching the photograph to the
appropriate activity. Developed photographs should be maintained in an
album to prevent damage and preserve photographic quality. In addition,
photographs should be arranged in sequential order, or grouped by well
drilling or installation activity.
C-29
-------
FIELD ACTIVITY REPORT
COVER SHEET
Site Name: Date:
Location:
Oversight Personnel:
PRP Field
Personnel:
Weather Conditions:
Planned Activities:
Approved Changes in Sampling Plan:
Important Communications:
Hours Oversight Assistant and Staff On-site:
Oversight Assistant Initials:
C-30
-------
NOTES:
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
C.I.I PREPARATION
1. Workplan
Review
a. Location and number of wells
b. Specified equipment
c. Field personnel qualifications/
responsibilities
2. Health and Safety Requirements
Review
a. Health & safety plans
(PRP's & oversight
assistant's)
b. Health & safety standard
operating procedures
c. Exposure limits/action
levels
d. Protective Gear
e. Other considerations
C-31
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
3. Oversight/Equipment
Bring equipment
a. Oversight checklists
b. Field logbook
c. Camera
d. Protective gear
e. Other
4. Coordination
Confirm schedules with:
a. PRPs
b. Drilling contractors
c. State or local environmental
authorities (if appropriate)
d. EPA (if appropriate)
e. Other
NOTES:
C-32
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
C.I.2 PRELIMINARY ON-SITE ACTIVITIES
1. Review Personnel Qualifications _
2. Record location and number of
boreholes
3. Decontamination Area/Clean Area
a. Decontamination area
Number of
decontamination areas
Physical location
Proximity to drilling/well
locations
b. Clean area
Number of clean areas
Physical location
Proximity to drilling/well
locations
c. Check decontamination
protocol
NOTES:
C-33
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
4. Tour of Site
5. Equipment Calibration
Field analytical equipment
calibrated (if appropriate)
6. Other
NOTES:
C-34
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
C.2 METHOD OF BOREHOLE ADVANCEMENT
1. Drilling Activities
a. Name of drilling company
b. Borehole number
c. Type of drilling
d. Well location
e. Elevation of location
f. Diameter of borehole
g. Type of drilling fluid
h. Amount of drilling fluid lost
to formation
i. Management of drilling waste
Drilling fluids
Cuttings
j. Well construction or boring log
NOTES:
C-35
-------
Date:
Site Name:
Initials:
Page * of
Consistent
with Plan
(Y/N) Comments
k. Methods to reduce spread of
contamination at well head
1. Anticipated geologic units
(composition and thickness)
m. Anticipated depth to ground
water
n. Total depth of borehole
2. Soil Sample Collection
(See checklist on subsurface soil sampling for specific handling and shipping requirements.)
a. Sample retrieval method
b. Collection interval/depth for
physical sample
c. Collection interval/depth for
chemical sample
d. Field screening samples for
analysis
Organic vapors
(OVA, HNu, etc.)
Discoloration (heavy metals)
Geiger - Muehler (radiation)
Other
NOTES:
C-36
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
e. Physical parameters measured in
the field
Moisture content
Plasticity (approximate)
Consistency
Grain size
Sorting
Other
f. Borehole logging method
3. Decontamination
a. Equipment
b. Method
c. Location
Proximity to surface
water or drilling
activities
Proximity to population
NOTES:
C-37
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
d. Frequency
Rig and downhole equipment
Sampling equipment
e. Cross contamination prevention
Well risers, screens, casings
f. Decontaminated fluids management
On-site storage
Off-site disposal (meets
RCRA/DOT/State requirements)
NOTES:
C-38
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
C.3 MONITORING WELL CONSTRUCTION AND DESIGN
1. Well Construction
a. Method of well completion
b. Well material kept covered and
clean
2. Well Design
a. Well screen
Material/size (ID)
Slot size
Screen length
Sump length
Depth of screened interval
(bottom/top)
Geologic unit over screened
interval
b. Well riser
Material/size (ID)
Method of joining sections
Length of well riser
NOTES:
C-39
-------
Date:
Site Name:
Initials: _
Page #
of
Consistent
with Plan
(Y/N)
Comments
Elevation of top of riser
c. Annular space completion
Filter pack material
Method of implacement
Depth of filter pack
(bottom/top)
Volume of filter pack
Thickness of bentonite seal
Volume of bentonite
Type of annular sealant above
bentonite
Volume of annular sealant
3. Well Completion
a. Type of surface seal
Three-foot diameter surface
pad
b. Depth of surface seal
Below frost line
NOTES:
C-40
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
c. Surface casing
Material/size (ID)
Method of implacement
Depth of surface casing
Half length of surface casing
Number of guard posts
NOTES:
C-41
-------
Date:
Site Name:
Initials:
Page # of
Consistent
with Plan
(Y/N) Comments
C.4 POST INSTALLATION
1. Well Development
a. Method of development
b. Amount of water retrieved
from well
c. Management of development
water
2. Ground-water Monitoring
(see also sampling & analysis
checklist)
Turbidity
PH
Specific conductance
Temperature
Other
NOTES:
C-42
-------
APPENDIX C REFERENCES
Camp, Dresser, and McK.ee, undated, Basic Health and Safety Training Course Manual,
CDM150.4
Driscoll, Fletcher, G., Groundwater and Wells. 2nd ed., Johnson Division, (St. Paul 1986).
IT Corporation, 1987, Manual of Sampling and Analytical Methods for Petroleum Hydrocarbons
in Groundwater and Soil.
NUS Corporation, 1987, Hazardous Materials Handling Training Manual, NUS Corporation,
Waste Management Services Group.
Planning Research Corporation, 1986, Protocol for Groundwater Inspecting at Hazardous Waste
Treatment Storage and Disposal Facilities. Planning Research Corporation, Chicago, II.
U.S. Environmental Protection Agency, (May 1978) Revised November 1984: NEIC Policies and
Procedures. EPA-33-/9-78-001R.
U.S. Environmental Protection Agency, 1980a, Samplers and Sampling Procedures for Hazardous
Waste Streams. EPA-600/2-80-018.
U.S. Environmental Protection Agency, 1981, NEIC Manual for Groundwater/Subsurface
Investigations at Hazardous Waste Sites. EPA-600/2-85/104.
U.S. Environmental Protection Agency, 1986a, RCRA Ground-Water Monitoring Technical
Enforcement Guidance Document. OSWER-9950.1
U.S. Environmental Protection Agency, 1986c, Engineering Support Branch, Standard Operating
Procedures and Quality Assurance Manual. Region IV, Environmental Services Division.
U.S. Environmental Protection Agency, 1986d, REM II Health and Safety Assurance Manual.
999-HSI-RT-CGSY-l.
U.S. Environmental Protection Agency, 1987a, A Compendium of Superfund Field Operations
Methods, two volumes. EPA-540/P-87/001, OWSER Directive 9355.0-1
U.S. Environmental Protection Agency, 1987b, Site Sampling and Field Measurements Handbook
for Underground Storage Tank Releases. DRAFT
U.S. Environmental Protection Agency, 1989, Handbook of Suggested Practices for the Design
and Installation of Groundwater Monitoring Wells, EPA 600/4-89/034.
-------
KEY WORDS
PAGES
Administrative Order (AO)
Administrative Record
Airbill
Alternative Remedial Contracts Strategy (ARCS)
Ambient air
Analytical techniques, ambient air
- Colorimetric tube
- Explosimeter
- Organic vapor analyzer (OVA)
- Oxygen detector
- Radiation survey meter
Analytical techniques, ground/soil/surface water
- Conductivity meter
- Dissolved oxygen (DO) meter
- Inorganic compounds detection
- Organic compounds instruments
- pH meter
Analytical techniques, soil vapor
- Colorimetric tube
- OVA
Annular space
ARARs
1-3, 1-19, 1-26, 2-1, 2-10
3-5
B-70
1-11,2-3
B-52, B-55
B-56
B-41
B-37, B-52, B-56
B-41
B-56
B-48, B-52, B-56
B-15, B-23, B-30
B-16
B-16
B-16
B-17
B-16
B-40
B-41
B-41
C-12, C-21, C-22
4-3, 7-4
Baseline Risk Assessment
- Exposure assessment
- Toxicity assessment
- Risk characterization
Bench-scale tests
Bill of lading
Borehole advancement
Borehold depth
1-2, 3-10, 3-13, 4-7, 4-8, 5-1, 5-6, 6-2, 7-4
4-7, 5-3, 5-6
5-4
5-4
6-3
B-70
C-3, C-13
C-5
Chain-of-custody record
Comprehensive Environmental Response, Compensation
Liability Act of 1980 (CERCLA)
Comprehensive Environmental Response, Compensation,
and Liability Information System (CERCLIS)
Community Relations
Consent Decree (CD)
Containerized waste
Contract Laboratory Program (CLP)
Cooperative Agreement (CA)
Corps of Engineers, U.S. Army (COE)
Cost recovery
Cross contamination prevention
Custody Seals
B-64, B-70
1-1, 3-6, 3-8, 7-4, 8-4
1-10, 3-6
3-5
1-3, 2-1
B-48
B-3, B-69
1-13
1-11, 2-5, 3-12, 4-7, 5-7, 6-10, 7-6, 8-4
3-5
B-74, C-18
B-70
Decontamination
Department of Justice (DOJ)
Dispute resolution
Drilling
- Auger
- Cable tool
B-5, B-72, C-16
2-6
1-18
C-3
C-7
C-10
-------
KEY WORDS PAGES
- Drilling fluid C-5, C-10
- Drilling waste C-12
- Rotary C-7
Environmental Response Team (ERT) 2-5, 7-6, 8-4
Environmental Services Division (ESD) 1-31, 2-5, 2-13, 3-12, 4-3, 4-7, 5-7, 6-8, 7-6, 8-4
Feasibility Study (FS) 1-1, 3-4, 7-1, 7-3, 8-1, 8-3
Field sampling plan (FSP) B-l
Financial Management System (FMS) 3-6
Fish and Wildlife Service, U.S. (FWS) 2-5
Geological logging C-13
Geological reconnaissance C-4
Geological surveys C-4
Geologic unit C-4
Ground water B-l7
Health and safety plan 3-1, 3-9, 3-11, B-2
Health assessment 4-3, 4-7, 5-4, 6-2
Holding times B-69
Integrated Risk Information System (IRIS) 5-5
National Contingency Plan (NCP) 1-3, 1-9
National Priorities List (NPL) 1-1, 1-3, 1-13, 2-3
Octanol-water partition coefficient B-30
Office of Emergency and Remedial Response (OERR) 1-15
Office of Waste Programs Enforcement (OWPE) 1-15
Organic vapor analyzer B-37, B-41
Organic vapor detector B-41, B-58
- Flame ionization detector (FID) B-41, B-54
- Photoionization detector (PID) B-41, B-54
Oversight tools B-2
- Field activity report B-2, B-81, C-30
- Photographic log B-80, C-29
Oxygen detector B-56
Pilot-scale study 6-2
Potentially Responsible Party (PRP) 1-1,2-13
Preliminary Assessment (PA) 1-14
Quality assurance project plan (QAPjP) 3-9, B-l
Quality review activities 1-30, B-l, B-74
-------
KEY WORDS
PAGES
Record of Decision (ROD)
Remedial action (RA)
Remedial design (RD)
Remedial Investigation (RI)
Remedial Project Manager (RPM)
1-10, 2-13
1-29, 3-4, 5-1,6-1, 7-1
6-1
1-1, 1-29,2-1, 4-5,4-6, 5-1,6-1
1-1, 1-9
Sample containers
Sample labels
Sample packing
Sample preservation
Sampler, ambient air
Sampler, ground water
- Bailers
- Pumps
Sampler, liquid sludge/slurry
- Bacon bomb sampler
- Coliwasa
- glass tube
Sampler, sediment (and nearly solid sludge/slurry)
- BMH-60
- Grain sampler
- Hand push tube
- Ponar dredge
Sampler, soil vapor
- Soil gas probe
Sampler, soil water
- Lysimeter
- Membrane filter sampler
Sampler, subsurface soil
- Split spoon
Sampler, surface soil
- Sampling trier
Sampler, surface water
- Kemmerer or Van Dorn sampler
- Weighted bottle sampler
- Peristaltic pump
Samples, quality review
- Trip blanks
- Field blanks
- Equipment blank
- Background sample
- Split sample
Sampling and analyses plan (SAP)
- Field sampling plan (FSP)
- Quality assurance project plan (QAPjP)
- Quality assurance/quality control (QA/QC)
Shipping
Site characterization
Site file
Site inspection (SI)
Sludge/slurry
Soil vapor
Soil water
State Project Officer (SPO)
Statement of Work (SOW)
B-57
B-59
B-66
B-60
B-54, B-55
B-19, B-22
B-19, B-22
B-45, B-47
B-43, B-47
B-43, B-46
B-14
B-12, B-32, B-51
B-14
B-12, B-46
B-40
B-26
B-28
B-35
B-32
B-ll
B-9, B-48
B-9, B-47
B-9, B-47
B-79
B-75
B-75
B-76
B-76
B-77
1-21, 1-29,2-10, 3-1, 3-9, B-l
3-9, B-l
3-9, B-l
1-13, 3-1, 4-6
B-69
2-10, 4-1, 7-2
2-5
1-14
B-41
B-37
B-23
1-15
1-9, 1-28,2-1, 2-10
-------
KEY WORDS
Sub-surface soil
Superfund Memorandum of Agreement (SMOA)
Surface casing
Surface seal
Surface soil
Surface water
PAGES
B-35
1-13
C-24
C-24
B-31
B-6
Technical Support Team
Technical Enforcement Support (TES)
Traffic reports
Treatability studies
2-1,2-5
1-3
B-66
1-28,4-2, 6-1,6-3
U.S. Geological Survey (USGS)
2-3, 2-5
Vadose zone
B-24
Well completion
Well design
Well development
Well installation
Work Plan
C-24
C-19
C-25
C-23
1-10,2-1,3-1,3-4,3-9,3-11,5-2
«U.S. GOVERNMENT PRINTING OFFICE: : 1992-311-932-72630
------- |